HomeMy WebLinkAboutResolution 96-165 06/17/1996 , Resolution No. 9fi-1 fi5 N C.S.
of the City of Petaluma, California
1
2
3 APPROVING AND AUTHORIZING ISSUANCE OF THE REQUEST FOR PROPOSALS
4 AND DRAFT CONTRACT DOCUMENTS FOR THE CTTY OF PETALUMA
5 WASTEWATER FACII.ITIES PROJECT AND LONG RANGE MANAGEMENT
6 PROGRAM
7
8 WHEREAS; the City of Petaluma has identified the need for improved wastewater treatment and
9 management services to meet water quality standazds, improve reliability and accommodate
10 projected growth that meets the community health, economic development, and housing goals and
11 objectives of the City's adopted General Plan; and
12
13 WHEREAS, in accordance with the adopted Planning Criteria, the City Council called for a
14 competitive selection process that would allow consideration of any combination of public/private
15 financing and/or ownership to meet the City's wastewater management needs and appointed a
16 Citizen's Wastewater Advisory Committee to assist in development of the Request for Proposals
17 and Draft Service Agreements and Ground Lease; and
l8
19 WHEREAS, the City issued a Request for Qualifications and the Citizen's Wastewater Advisory
20 Committee reviewed and recommended five qualified teams which were selected by the City
21 Council to participate in the proposal process; and
22
23 WHEREAS, the City hired a team of qualified consultants including Brown and Caldwell,
24 engineers, and Jones and Stokes Associates, environmental consultants, to assist in evaluating the
25 facility needs, design options and siting alternatives and prepaze an Environmental Impact Report
26 for the project; and
27
28 WHEREAS, the City hired a separate team of qualified consultants including Camp, Dresser and
29 McKee, engineers, Emst & Young and the law firm of Nossaman, Guthner, Knox and Elliott to
30 assist in development of the Request for Proposals and Draft Service Agreements and Ground
31 Lease; and
32
33 WHEREAS, a Technical Memorandum dated June 28, 1993 was prepazed by Brown and
34 Caldwell and circulated for public review and consideration by the Citizen's Wastewater Advisory
35 Committee which defined the projected flows for the wastewater system at build-out of the
36 General Plan and defined the site area requirements for new treatment facilities and identified the
37 need for expanded storage and irrigation capacity to meet the discharge limitations; and
38
39 WHEREAS, aConstraints/Opportunities Analysis dated July 1993 was prepazed which identified
40 potential sites for location of new treatment facilities and potential irrigation expansion areas
41 based on an assessment of environmental constraints. An Addendum dated July 1993 was also
42 prepared which evaluated 13 potential reservoir sites for expanded storage. Based on these
43 studies, design options and two siting alternatives for new treatment facilities and two reservoir
44 site alternatives were recommended for further evaluation in the EIR; and
45
96-165 Page 1 of 4
Ro. No . N.C.S.
Wastewater Facilities Project and Long Range Management Program Resolution 96-165
Approving RFP/Draft Contract Documents June 17, 1996
1 WHEREAS, the Citizen's Wastewater Advisory Committee reviewed a report entitled
2 "Comparative Analysis of Service Delivery Alternatives" dated May 18, 1994 prepared by Emst
3 & Young. The Advisory Committee recommended that the City utilize the "service agreement
4 approach" for the procurement of wastewater management services and that the City form a
5 commission or board to provide oversight of the service agreement and a higher level of ongoing
6 public involvement in the long-term operation of the wastewater system; and
7
8 WHEREAS, the City Council considered the Citizen's Wastewater Advisory Committee's
9 recommendations on June 20th, 1994 and approved the recommended procurement approach in
10 Resolution 94-156 to consider full privatization through a service agreement and likewise
11 supported the concept of creating a local public utilities commission to oversee the operations;
12 and
13
14 WHEREAS, the City hosted a public scoping workshop on June 28th, 1994 to review the project
15 description, design options and siting alternatives and vendor selection process; and
16
17 WHEREAS, the City prepazed a Draft Project Report dated June 15th, 1995 for the Wastewater
18 Facilities Project and Long Range Management program describing the project objectives, facility
19 requirements, design options, operating characteristics and estimated capital and operating costs
20 as the basis for evaluation in the EIIi and further defining the scope of work for the Request for
21 Proposals documents; and
22
23 WHEREAS, preliminary drafts of the Request for Proposals (RFP), and Draft Contract
24 Documents including: 1) Wastewater Privatization Service Agreement, 2) Public Works Services
25 Agreement, and 3) Ground Lease were prepared for review by the Citizen's Wastewater Advisory
26 Committee and recommended changes were made. Public review drags dated October, 1995
27 were published and provided to the Planning Commission and City Council and made available for
28 public and vendor review including all of the appendices that could be prepazed in advance of the
29 proposals, but were not considered within the scope of the EIIi; and
30
31 WHEREAS, the Planning Commission reviewed the above referenced documents and considered
32 the comments received and made a recommendation to the City Council that the ElR provides
33 adequate analysis of impacts and available mitigation measures for use in decision-making with
34 some additional clarifications and directed staff to prepare responses to comments in a Final EIR
35 for certification by the City Council; and
36
37 WHEREAS, the Planning Commission also recommended that the City Council hold a public
38 hearing on the RFP and Draft Contract Documents prior to certification of the Final EIIt; and
39
40 WHEREAS, the Final Project Report was prepared to reflect the project recommendations as
41 adopted by the Planning Commission and recommended by the Citizen's Wastewater Advisory
42 Committee; and
43
44 WHEREAS, the City Council held a study session on November 27th, 1995 at which staff
45 reviewed the planning and procurement process and the environmental findings of the Revised
2
Reso. 96-165 NCS Page 2 of 4
Wastewater Facilities Project and Long Range Management Program Resolution 96-165
ApprovingRFP/Draft Contract Documents June 17, 1996
1 Draft EIR and presented the siting and water quality recommendations contained in the Final
2 Project Report. The consultant team provided a review of the RFP and Draft Contract
3 Documents; and
4
5 WHEREAS public hearings on the project and related documents were held on February 12th,
6 1996 and March 25th, 1996. Additional changes to the Drag Contract Documents, as
7 recommended by the Citizen's Wastewater Advisory Committee, were summarized per a staff
8 memo dated January 31, 1996. All interested parties were provided an opportunity to speak on
9 all aspects of the project. The public hearing was officially closed on Mazch 25th, 1996; and
10
11 WHEREAS, the City Council authorized follow-up meetings with City staff for those who spoke
12 at the public hearings in order to assist staff in providing more proactive responses• to the.
13 comments received. The follow-up meetings were held on April 17th, 1996 and May 8th, 1996;
14 and
15
16 WHEREAS, a report titled "Responses to Comments on the Final EIIt, Final Project Report and
] 7 Request for Proposals/Draft Contract Documents" was prepared and distributed on May 6th,
18 1996 to the City Council and to those who spoke at the public heazings; and
19
20 WHEREAS, the City Council considered the Revised Draft EIlt, the Final EIR and the Responses
21 to the comments received for the meeting on May 13th and directed staff to prepaze legislation for
22 certification of the EIIt and approval and issuance of the Project Report and Request for
23 Proposals/Draft Contract Documents for consideration on June 3rd, 1996;
24
25 WHEREAS, the proposal Evaluation Methodology has been approved by the City Council by
26 Resolution #94-175 as recommended by the Citizens Wastewater Advisory Committee on June
27 20th, 1994.
28
29 WHEREAS, the Final EIlt documents were certified by the City Council on June 17th, 1996 by
30 Resolution 96-163.
31
32 WHEREAS, the Final Project Report, as amended by the staff report and Response Document
33 dated May 13th, 1996 was approved by the City Council on June 17th, 1996 by Resolution 96-
34 164.
35
36 NOW THEREFORE BE IT RESOLVED by the City Council of the City of Petaluma that the
37 Final EIR documents and Final Project Report, as amended May 1996 are hereby incorporated as
38 attachments to the Request for Proposals. The Resolution approving Wastewater Facilities
39 Project and Long Range Management Program and adopting mitigation measures and monitoring
40 program as conditions of approval is hereby incorporated into the Draft Contract Documents as
41 binding provisions.
42
43 BE IT FURTHER RESOLVED by the City Council of the City of Petaluma that the Request for
44 Proposals, Draft Contract Documents dated October 16th, 1996 and other attachments and
45 exhibits thereto are hereby approved with the following changes as shown in the attached exhibits:
3
Reso. 96-165 NCS Page 3 of 4
Wastewater Facilities Project and Long Range Management Program Resolution 96-165
Approving RFP/Draft Contract Documents June 17, 1996
1
2 (1) Staff report dated January 31, 1996 identifying the Citizen's Wastewater Advisory
3 Committee's final recommendations attached hereto as Exhibit 1.
4
5 (2) Staff report dated May 13th, 1996 identifying additional modifications that evolved in
6 response to the two follow-up meetings and as amended by Council comments on May
7 13th as shown on the attached Exhibit 2, except for changing the "revolving door .
8 provision" on page 3 of Exhibit 2 Line 24 to read "S vears after the date the person leaves
9 service with the City" rather than the date the Wastewater Privatization Service
10 Agreement is executed.
11 (3) Revise the Request for Proposals to include in the criteria for evaluation a preference for hiring or
12 using local goods, products, services and labor. "Local" shall be defined as Sonoma County
l3 and/or Northern California.
14
15 BE IT FURTHER RESOLVED by the City Council that City staff is hereby authorized to make
16 non-substantive, editorial or syntactical changes and clarifications in the RFP and Draft Contract
17 Documents and the Evaluation Methodology to reflect the intent of the Council as reflected
18 herein.
19
20 BE IT FURTHER RESOLVED by the City Council of the City of Petaluma that the City staff is
21 hereby authorized to issue the Request for Proposals, as amended herein, to the five prequalified
22 vendor teams.
23
24
25 jb~c:\wnlpUeso-c\jb-99
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced end adopted by the Approved as to
Council of the GSty of Petaluma eta (Regular) (138115titf#ifRt(S}1dE]i~ meeting form
on the ..1.7.111 day of ..............,IUfL~..................................., 19..6.. by the ~
following vote:
City Attorney
AYES: Maguire, llamilton, Stomps, Read, Shea, Nlayor Hilligoss
LACES: None
ABSENT: Vice Mayor a Cam// ~ ~~.y~)('
ATTEST : :.5..................... ~ ..`.:.1.".'1.....
City Clerk 4 Mayor
~wal Fi4...~...__.._._........_.
ca 1065 Res. rva...9.6.-.1.6.5.......... Ncs. Page 4 of 4
OFFICE OF THE CITY MANAGER
January 31, 1996
To: Mayor & Councilmembers
From: Warren Salmons, Assistant City Manager
Re: Wastewater Project RFP and Contract Documents
On January 25, the Citizens' Wastewater Advisory Committee met to discuss its final recommendations
on the RFP and. Contract Documents. The attached memorandum dated January 17 from me to the
Citizens' Wastewater Advisory Committee is a compilation of recommendations for final changes in the
documents based on previous comments by the Committee, the consulting team, staff project team and
Mr. Terence Garvey, an interested citizen (most recent letter enclosed). The January 17 memorandum
references to two January 16 memoranda from Patrick Gallagherto me containing revised language for
inclusion in the documents. The committee approved all of the recommended changes as written inthe
staff report.
In addition to those recommendations; the committee asked than an index to the document package be
included with the Request far Proposals when it is sent out to the ~ vendor teams. They also directed one
final change to the text of the Wastewater Privatization Service Agreement to modify Section 8.1.3 to
delete the reference to Section 5.5.5. The language, as originally written; would have reimbursed the
vendor for the.insurance deductible ofup to $100,000 as a result of a force majeure event. These final
changes will be made to the documents after Council approves them and prior to their distribution to the 5
short-listed vendor teams.
Also discussed at the January 25 meeting was a letter from the California Public Utilities Commission
which is also included in this packet. The letter informs the City that the Califomia Public Utilities
Commission had completed its review of our~drafr documents and suggested only two amendments to the
language. The first suggestion requiring California Public Utilities Commission review prior to any
future amendments of the Wastewater Privatization Service Agreement. is included in the list reviewed by
the Committee on January 25. Secondly, the Califomia Public Utilities Commission wants additional
languagewhich would permit the City or the City's future Public Utilities Commission to levy fines and
penalties on the vendor consistent with the authority of the California Public Utilities Commission.
Enclosed with this document is a January 25 letter: to me from the law firm of Nossaman, Guthner, Elliott
and Knox which is advising us on this project. The letter suggests the possibility of adding language to
our documents to address this issue. However, the law firm will continue dialog with the Califomia
Public Utilities Commission to ensure that agreeable language is achieved.
Finally, as a result of the City Finance Director doing a "dry run" on the compensation formulae, in the
Wastewater Privatization Service Agreement and the Public Works Services Agreement, several additions
are recommended to clarify terms and references. The clarifications do not alter the basic operational
chazacteristics of the formulae. The attached memorandum.from David Spilman dated January 30
summarizes the suggestions.
W S/mlJwi nword/sal mons/w539596
~so ~o - ~ X05 ?J C,5
OFFICE OF THE CITY MANAGER
January 17, 1996
To: Citizens Wastewater Advisory'Committee
From: Warren Salmons, Assistant City Manager
Re: Final Recommended Revisions - RFP and Draft Contract Documents
In response to direction by the Citizens' Wastewater Advisory Committee, the California-Public Utilities
Commission and staff consideration of suggestions by Terence Garvey, the following recommended
revisions are proposed:
Request for Proposals
Page 3
Will be revised per the attached memo from Pat Gallagherto include one or more paragraphs
describing the contents of each of the appendices called for under the Wastewater Privatization
Service Agreement, Ground Lease, and Public Works Services Agreement which will be
developed as part of the final negotiations with the selected`vendor.
Page 24 -Lines 10 - 13
The figures contained in this table will be revised to conform with Appendix C of the Wastewater
Privatization Service Agreement which is being revised.
Page 27 -Lines 26-31
The schedule will be revised afrer approval of the RFP to reflect estimated completion dates for
each of the listed milestones.
Wastewater Privatization. Service,Agreement
Page vii
Add reference to Appendix "U" which will be titled "City Environmental Legislation"
Page 3 -Section 1.1
Add definitionsfor Average Annual Flow, Change in Applicable Law; Maximum Monthly Flow,
Maximum Daily Flow, Maximum Hourly Flow,,and.Abnormal Contaminants, per the memo from
Patrick Gallagher dated 1%16/96.
1
~eso ~l lv - I lD 5 tit CS
- ,
Page 104 -Section 12.8 Amendments
Add Section 12.8.1 to conform with PUC recommendation:
":Any changes to this agreement shall not become effective until
authorization of the Ca_ lifornia Public Utilities Commission or its staff is
obtained:"
Appendix G.
Modify_per memorandum from Patrick Gallagher dated 1!16196.
Appendix M
Add CITY OF PETALUIv1ABUILDING DIVISION
New construction and remodeling or"demolition,of existing facilities will require,building
permit(s) issued by the Building°Division. Design must conform to applicable Uniform Codes as
adopted by the City ofPetaluma including Building, P-lambing, Mechanical, Electrical and Fire.
Ground Lease
No recommended changes
Public Works Services Agreement
Page iii
Add Appendix'"O" - "City Environmental Legislation"
Page 7 -Lines 15-20
Revise the definition of Force Majeure to read:
"provided .that, prior to Substantial Completion of the Project, an
earthquake below 50 percent of the ground motion representation as
measured by Section 1b29 Dynamic Lateral .Force Procedures of the
Uniform Building Code shall.not be Force>Majeure, and at all times on and
after Substantial Completion, an earthquake below 100 percent of the
ground motion representation as measured by Section 1629 Dynamic
Lateral Force Procedures of the Uniform, Building Code in force as of the
Effective"Date shall nofbe Force Majeure".
Page 9 -Line 21
Refer'to Appendix"O" - "City EnVuonmental Legislation".
Page 13 -Line T9
Add larguage defining what 30% design means.
Page 14 -Line 17
Add".language def Wing what 30%, 65% and 100% design means.
W 5/mWwinword/salmons/ws39596
3
~eso. Q.~o- I Co 5 t~CS
DRAFT
To` Warren Salmons
From: Pat Gallagher
cc: Karen Hedlund/Ted Ricci
Date: January 16, 1996
Subj: Force Majeure and Influent Variations
This memorandum provides some background discussion and recommendations for
consideration by the City concerning two important aspects•of the drafr wastewater
procurement documents: (a) force majeure, and (b) influent variations.
Force Majeure
- Existing Documents. Under the current drafrs of the wastewater procurement documents
(i:e., dated 10/16/95), force majeure is addressed essentially as follows:
Draft Wastewater Privatization Service~Agreemeut
The term Force Majeure is'defined to include only those events (i) beyond the
control of the Company, (ii)' which materially and adversely change the tasks to be
performed by the Company, (iii) whose,adverse. effects could not have been
avoided if reasonable efforts had been expended by the Company, and (iv) which
fall into one of five specifically-defined categories. Such categories include: (1)
physical damage or interruption of essential services; (2) civil commotion, (3)
failure of City to obtain certain permits, (4) change in law, and (5) delay in
permits and approvals. If an event meets the requirements of the Force Majeure
definition; the obligation of the City is tied to the impact and the status of the
project.
Page 1 of 12
i~e.so . q' ~ - I In 5 rJ CS
Prior to completion of the new treatment facilities, Chree basic possibilities exist:
First, if the Force Majeure event causes an unavoidable need for the
Company to incur capital expenditures:aY the Cify's existing treatment
plant, the City will be responsible for paying such costs through an
adjustment in the Interim Service Fee (see Section 3.5.4, Page 27).
Second, if the Force Majeure event causes delay in the project schedule for
design,and constructio? of the new treatment facilities, the City is,required
to grant-an extension of time for completion of the new treatment facilities
but is not responsible for any costs related o such delay (see Section 4.10,
Page 39).
,Third, if the Force Majeure event excluding any costs associated with
delay and excluding any costs reimbursable by required insurance
coverages --causes an increase in the costs. of the new treatment Facilities,
the City will be required to pay those costs'through an adjustment in the
'Service Fee.
If a Force Majeure event occurs after the new treatmehtfacilities are completed,
the City~will be required to pay the increased costs, excluding those costs which
are reimbursable undet'the required insurance coverages.
Draft Ground Lease
There'are no provisions in the Drafr Ground Lease pertaining to Force Majeure.
This is appropriate for this document; since the purposebf the ground lease'is
limited to granting certain rights and providing certain restrictions relative to the
use of the City-owned project.site in carrying out+the obligations of the Company
under the Drafr Wastewater Privatization Service Agreement.
Draft Public Works Services Agreement
Urider the DraftPublic Works Services Agreement, all facilities will be
Page 2 of 12
peso. Gtp- I l0 6- rocs
constructed, financed and owned by the City, with the Company providing
professional and related services for their design; construction management and
operation and maintenance. In this context„the level of risk assumed by the City
is substantially greater than with the new privately-owned wastewater treatment
facilities under the Draft Wastewater Privatization Service Agreement, and the
role of Force Majeure in allocating risks between the.City and the Company is
relatively limited.
The definition of Force Majeure under this.Agreement,is identical to the Draft
Wastewater Privatization Services Agreement, and Force Majeure basically comes
into effect under the following circumstances:
First, the-City is responsible for the additional construction and other costs
of a Public Works Project caused by Force Majeure (see Section 2.10.4,
' Page 18).
Second, the Company is not responsible for any fines, penalties or
damages associated with its:operation and maintenance and caused by a
Force Majeure event.
Third, the additionaLDirect Costs incurred by the Company due to a Porce
Majeure.event in the operation and maintenance of City-owned facilities
will be reimbursed by the City.
Sueeested Changes. It is suggested that no changesbe made in the definition or effect of
Force Majeure under the Draft Public Works Services Agreement. With respect to the
Draft Wastewater Privatization Service Agreement, the following changes should be
considered:
1. Modify Paragraph (a) and delete Paragraphs (c) and (d) of the definition of
Porce Majeure, so the revised definition is as follows:
"Force.Majeure" means any of the following
events (provided such event is beyond the control
Page 3 of 12
~e so q l~ - l t~ 5 ~ c,s
of ;Company and not due to an act or omission of
Company) which materially and adversely changed
the tasks to be performed. by Company hereunder,
and the effects of which could not have been
avoided by due diligence-if reasonable efforts had
been expended by Company:
(a) an earthquake., fire or other physical •
destruction. or damage to, the Project or
interruption of puplc utility or other service
essential to construction. or operation of the
Project, including but not limited to lightning,
explosion, drought, rain, flood, hurricane,
nuclear radiation, storm or action of the element s•
or other acts of God; provided that, prior to
Substantial Completion of the :Project, an
earthquake below ~ ~ - fifty
percent ('50°s) of the ,ground motion representation
as measured by'Section 162'9. Dynamic Lateral Force
Procedures of the Uniform Building Code, not, be
Force Majeure; and at all times on and after
Substantial Completion, an earthquake below
one hundred percent (100%)
of the ground motion representation as measured by
such Section T629. Dynamic Lateral Force
Procedures of the Uniform Building Code, in force
as of the Effective Date shall not be Force
Majeure;
(b) Any epidemic, blockade, rebellion, war,
riot or act of sabotage or acts in the nature o£
civil commotion or sabotage at `or near the Project
Site intended to.delay construction of the
Project;
Page 4 of .I2
~eso• 9 l~ -1 ~0 5 ~ cJS
~w
(e) A delay.in obtaining one or more
'Governmental .Approvals caused by factors beyond
.the reasonable control of Company, such as
unreasonable delay in review by a Governmental
Entity.
If under the terms of this .Agreement, Company is
entitled to the reimbursemeht by City of any
additional costs incurred as a result of Force:
Majeure; then only those actual and necessary
Direct Costs that would not be payable under the
nsurahce coverage required by this Agreement and
those that are documented to the satisfaction of
the City shall be reimbursed.
Clean version; after; revisions:
"FOrce,'Majeure" means ahy of the following
edents' (provided such event is beyond the control
of Company and not due to an act or omission of
Company) which materially and, adversely changes
the tasks to be performed. by Company hereunder,
ahd the effect's of which could not have been
avoided by due diligence if reasonable efforts had..
been expended by Company:
Page 5 of 12
~eso, ql~ - I to 5 ~ ~
(a) an earthquake, fire or other physical
destruction or damage to the Project or
interruption of public utility or other service
essential to construction or, operation of the
Project, including but not limited to lightning,
explosion, drought, rain;:, flood, hurricane,
nuclear radiation, storm or action of the elements
or other acts of God; provided that, prior to
Substantial Completion of the Project, an
earthquake below fifty percent (500) of the ground
motion representation as measured by Section ,1629,
Dynamic Lateral Force Procedures of the Uniform
Building Code, not be Force Maj'eure, and at all
times on and after Substantial- Completion, an
earthquake below one, hundred percent (100%) of the
ground motion r.epresentaGion as measured by such
Section 162,9; Dynamic Lateral Force Procedures of
the Uniform Building Code, in force as of the
Effective Date] shall not be Eorce Majeure;
(b) Any epidemic, bl'oekade, rebellion, war,
riot or act of sabotage or acts in the nature of
civil commotion or sabotage at or near the, Project
Site intended to delay construction of the
Project.;
(c) A delay in obtaining one or more
Governmental Approvals caused by factors beyond
„ the reasonable control of Company, such as
unreasonable delay in review by a Governmental
Entity.
If under the terms of this Agreement, Company is
entitled to the reimbursement by City of any
additional costs incurred as a result of Force
Majeure, then only those actual and necessary
Page 6 ofY2
~e~J ~11~-4b51JCS
Direct Costs that would not be payable under the
insurance coverage required by this Agreement and
those that are documented to the satisfaction of
the City shall be reimbursed.
2. The Following. new clause be added ro the end of Section 5.5.3:
"In the event that the costs .incurred by the
Company in meeting its obligations under this
Agreement relative to the New Treatment Facilities
are unavoidably increased as a result of the
failure by the City to complete in a timely manner
any of its material obligations under this
Agreement, the Service Fee shall be adjusted to
enable the Company to recover the Direct Costs, as
mutually agreed by the City and Company."
3, The following new subsection be added to Section 5.5:
"5.5.7 Change in ,Applicable Law. If a Change in
Applicable,Law occurs which imposes more stringent
requirements for the Effluent or which otherwise
increases the level or scope. or services required
to be provided by the Company under this
Agreement,. the City shall have the right, in
addition to any other rights or remedies set forth
under this Agreement or otherwise, to elect one or
more of the following courses of action:
(a) the City may implement a pretreatment or
post-treatment system or take any other action
with regard to the Influent. or the Effluent,
utilizing its'own forces or through a third-party
contractor(s), in order to partially or fully
comply with such Change in .Applicable Law to
Page 7 of 12
Rem. G to -Ito 5 1JG5
minimize or eliminate the ..need for additional
costs to be incurred by the Company,
(b) the City may request. from the Compahy a
written proposal, including a proposed adjustment
in the Service Fee-, if necessary.; as to the. scope
and schedule of activities that the Company would
undertake, if approved by the City, in order to
comply with such Change in Applicable Law and/or
to supplement the actions to be undertaken by City
under the .foregoing paragraph {a), which proposal
-may be utilized as the basis of negotiations
between the City and Company as to an amendment to
this Agreement, and/or
(c) the City may elect to direct the
Company to ,proceed with modifications to the
Project or Company services under Section 7.1 of
this Agreement.
In any actions by .City under this Section 5.5.7,
the Company shall fully cooperate with City in
order to minimize the. overall costs to be incurred
by the City in complying with any Change in
Applicable Law after the Effective Date."
4. The following new definition should be added to Section 1.1:
"-Change in Applicable Law" means any change.ih
Applicable Law or administrative interpretation
.thereof, which -is materially inconsistent with
Applicable Law in effect on the Effective Date;
provided that-,any change ,in federal•or state taxes.
(including the scope or rate of 'taxation) shall
not be Change, in Applicable Law.
Page 8 of 12
~eSO.4(o-~t-05 QJCS
5. Section 4.10 should'be modified as follows:
4.10 Time Extensions. Company shall be granted
an extension. of time, as provided in this Section
4.10, for any portion of delay affecting the
critical path shown in the Project Schedule
arising from Force Majeure, Chancre ih Applicable
Law or any material failure by the City to perform
under this Agreement. Company shall not be
entitled to any increase in any compensation as a
result of any such delay regardless of any
increase'in Company's costs caused thereby or
relating thereto... Notwithstanding anything in
this Agreement to the contrary, any and all claims
by Company for an extension of the Guaranteed
Commencement Date or for any other extension of
time. for the. performance of a Company obligation
shall be governed exclusively by this Section
4..10, which sha_11 be: the Company's sole remedy
therefore.
Influent Variations
In order to more clearly place with.the Company the.responsibility for fines, penalties and
damages resulting from Effluent;frorrrthe, new treatment facilities that fails,to meet the
requirements of Applicable Law;:it is;suggested thatcerfain modifications be made to
Appendix C ofthe Draft Wastewater Privatization Agreement. These modifications,
wFiich°,are presented below as item B., are intended fo minimize the grounds upon which
the,Company might be able to avoid liability for fines; penalties or,damages in the event
that effluent permit violations occur.with tfie New Treatment Facilities. Essentially, these
suggested.modificatiohs to Appendix,C"obligate the Company to-meet effluent permit
requirements as.long as the quality of the influent wastewater is comparable to the
historical influent filow in the City. W„ith`respectto influent quahtity, the revised
Appendix Cincorporates the desigmcapacity flow conditiohs presented in the Project
Page 9 of 12
• - ~eso. q I c~ 5 h1Cs
Report for buildout~ofthe service area and eliminates all references to existing flow rates.
In addition,~suggested changes to the Wastewater-Privatization Service Agreement
concerning the Company's operation of the Existing TreatmeriT Facilities that are
intended to shift more responsibility foreffluent'violations to the Company are presented
below as item A.
A. With respectto operation ofthe Existing Treatment Facilities, Section
3.2:3 on Page 24 should be modifed to'read as'follows:
"3.2.3 Fines and Penalties. The Company shall
indemnify and hold the City harmless for any
fines, penalties, costs or damages (including
those arising 'from the conveyance and application
of Effluent by way of any irrigation or other
effluent uti-l-ization or reclamation system)
associated with failure of Effluent from the
.Existing Treatment Facilities to comply with the
Effluent Permit r-equrements, except to the extent
that the failure to comply with the Effluent
Permit was+caused by, as demonstrated by Company_
to the reasonable atsfacton of the City. the
inability of the Existing Treatment Facilities.
through no fault of the Company to provide
adequate treatment of the Influent ~-„~t
tie=_~F'^-_~~=`^F~ =a=~-=== or Force Majeure. If a
Force Majeure event occurs, the Company shall use
its best efforts to operate the Existing Treatment
Facilities so as to meet the Effluent Permit
requirements."
B. With respect,to operation of the New Treatment Facilities, Appendix C -
h~fluent Parameters should be replaced with the revised Appendix C, as set
forth below:
Page 10 of 12
~eso , q~-tl~5NCS
Appendix C
Influent Parameters
[need to review '1995 annual data to finalize]
Flow
Average Annual Flow 7.4 mgd
Maximum Day F1bw ~ 14.5 mgd
Maximum Hour .Flow 36.0 mgd
BOD .
Average .Annual Loading 22,709 lbs/day
SS
' Average Annual Loading 21,110 Ibs/day
.Abnormal Contaminants
None
C. The following new definitions should be:added fo Section 1.1;
"Average. Annual Flow" means the. total volume of
Influent in million gallons measured over any
continuous 365-day period .and dv-ided by 365.
"Average Annual Loading" means the 'total pounds in
the Influent. measured over any continuous 365-day
perios and duidedby 365,..
"Maximum Day Flow" means the total volume of
Influent in million 'gallons "mea'sured during any
continuous 24-flour- Viper-od.
"Maximum Hour Flow" means the total volume of
_
Page 11 of T2'
tt~sv . QtD =1~ 5 rJ CS
Influent in million gallons measured during any
continuous 6o-minute period multiplied by 24.
"Abnormal Contaminants" means the presence in the
Influent of contaminants in concentrations not
historically found in the Influent which interfere
with the ability of the: New Treatment Facilities
to treat .Influent, as demonstrated by the Company
to the reasonable satisfaction of the City.
Page 12 of 12
~2so•9t, -11~ 5 rJc.S