HomeMy WebLinkAbout4283 Resolution - Second Work Acceleration Agr. with Burnham-SEV for PWRF Pretreatment Improvements RESOLUTION NO.4283
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A SECOND
WORK ACCELERATION AGREEMENT WITH BURNHAM SEV PASCO,
LLC FOR THE ANAEROBIC DIGESTION AND RENEWABLE NATURAL
GAS PROJECT RELATED TO THE PROCESS WATER REUSE FACILITY
PHASE 3 PROJECT.
WHEREAS,the City of Pasco(City) owns and operates the Process Water Reuse Facility
(PWRF)to treat and dispose of industrial wastewater from food processors (Processors)located in
the vicinity of the City; and
WHEREAS, the industrial wastewater treatment system operated by the City, including
the PWRF,requires improvements to sufficiently treat current and increased Processor wastewater
flows to meet City permitted limits; and
WHEREAS, the City's current wastewater treatment system is at or near capacity and
requires expansion to enable new Processors to use the facility and existing Processors to expand
their operations; and
WHEREAS, on September 6, 2022, Council approved a Work Acceleration Agreement
with Burnham SEV for the PWRF Pretreatment Improvement Phase 3 project. That Agreement
allowed up to $2 million of reimbursement to Burnham for work associated with the PWRF
improvements should a final Wastewater Treatment Agreement not be executed by October 17,
2022; and
WHEREAS, the final executed Work Acceleration Agreement extended the Wastewater
Treatment Agreement execution date to November 30, 2022; and
WHEREAS, the City and Burnham are not able to execute a final Wastewater Treatment
Agreement by the November 30 deadline due to circumstances beyond the control of either party.
Therefore, in accordance with the executed Work Acceleration Agreement, reimbursements will
be paid for work done by Burnham up to November 30, 2022; and
WHEREAS, to keep the PWRF Pretreahnent Phase 3 project moving forward as
discussions continue on a final Wastewater Treatment Agreement, the City and Burnham agree
that a second Work Acceleration Agreement is necessary for the final design and preparing for
construction; and
WHEREAS,reimbursement under this second Work Acceleration Agreement would only
occur should a final Wastewater Treatment Agreement not be executed by January 31, 2023.
Resolution: Second Wark Acceleration Agreement-PWRF Pretreatment Phase 3 Project- 1
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO,WASHINGTON:
That the Interim City Manager, for the City of Pasco, is hereby authorized to execute the
Second Work Acceleration Agreement with Burnham SEV for the Wastewater Treatment,
Anaerobic Digestion and Renewable Natural Gas Project, a copy of which is attached hereto, and
incorporated by this reference as Exhibit A; and to make minor substantive changes as necessary
to execute the Agreement.
Be It Further Resolved,that this Resolution shall take effect immediately.
PASSED by the City Council of the City of Pasco, Washington, this Sth day of December,
2022.
��
�I�anc�e Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
d��C
Debra Barham, CMC Kerr Ferguso , PLLC
City Clerk City Atto ys
Resolution: Second Wark Acceleration Agreement-PWRF Pretreatment Phase 3 Project-2
WASTEWATER TREATMENT,ANAEROBIC DIGESTION AND
RENEWABLE NATURAL GAS PROJECT
SECOND WORK ACCELERATION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of ,2022 (the
"Effective Date"),by and between Burnham SEV Pasco LLC("Developer")and the City of Pasco,
Washington, a Municipal Corporation(the"City") (each and"Party"and together the"Parties").
WHEREAS, the City operates a Process Water Reuse Facility ("PWRF") to treat and
dispose of industrial wastewater from food processors("Processors")located in the vicinity of the
City of Pasco; and
WHEREAS,the City owns and operates the Foster Wells Lift Station and force mains,the
Columbia East Lift Station and force mains, the PWRF and the Land Treatment System with all
associated irrigation, pivots, pipes, wells, and appurtenances for the treatment and disposal of
Processors' industrial wastewater; and
WHEREAS, the industrial wastewater treatment system operated by the City, including
the PWRF, requires improvements in order to sufficiently treat current and increased Processor
wastewater flows to meet City permitted limits; and
WHEREAS, the City's current wastewater treatment system is at or near capacity and
requires expansion to enable new Processors to use the facility and existing Processors to expand
their operations; and
WHEREAS, the City issued a request for proposal ("RFP")under the provisions of RCW
70A.140 for the development of a new wastewater treatment plant that includes anaerobic
digestion for more comprehensive wastewater treatment and nitrogen removal to bring the total
effluent nitrogen loads to within the City's discharge permit levels (the "Wastewater Treatment
System"), and a gas cleanup system ("Gas Cleanup System") for the production of renewable
natural gas (collectively, the"Project"); and
WHEREAS, Developer submitted a proposal in response to the City s RFP, and the City
has preliminarily selected Developer to undertake the Project pursuant to an award letter from the
City dated May 3, 2022, subject to additional requirements in RCW 70A.140 for final selection
and entering into an agreement reviewed by Ecology and approved by the City Council; and
WHEREAS, in order to adhere to the City's desired project schedule, Developer must
commence certain preliminary activities related to the engineering, permitting, and financing of
the Project as the Developer and City work towards executing a final agreement for the Project;
and
5econd Work Acceleration Agreement- 1
WHEREAS, procurement of services to perform those preliminary activities requires
compliance with the requirements of RCW 39.80, which have been met by the City by publishing
in advance the City's requirement for professional services in a Request for Proposal ("RFP")
(RCW 39.80.030), evaluating the Developer's qualifications (RCW 39.80.040), and negotiating
the services and price of the provisions of this Agreement(RCW 39.80.050); and
WHEREAS, City has requested that Developer commence preliminary activities on the
Project prior to executing a definitive Wastewater Treatment Agreement ("WTA"} which will
outline the terms and conditions under which the City will contract with the Developer for
industrial wastewater treatment services under the provisions of RCW 70A.140; and
WHEREAS, City and Developer entered into that certain Anaerobic Digestion and
Renewable Natural Gas Project Work Acceleration Agreement effective October 19, 2022, where
Developer agreed to undertake certain preliminary project development activities and City agreed
to assist Developer and reimburse Developer up to $2,000,000 if the WTA was not entered into by
November 30, 2022 (the "First Agreement"); and
WHEREAS, the Parties agree that the WTA will not be entered into by November 30,
2022, and therefore, City shall provide reimbursement to Developer in accordance with the First
Agreement; and
WHEREAS, in response to City's request, and in exchange for the undertakings and
inducements provided by the City herein, and in reliance thereon, Developer will continue to
progress certain additional activities, such as engineering, legal,permitting,regulatory, financing,
design, and other activities related to the Project, including, without limitation payments to be
made to Swinerton Builders, Inc. ("Swinerton"), which agreement contemplates payments from
Developer to Swinerton of up to $3,500,000 by January 31, 2023.
NOW, THEREFORE,and in consideration of the mutual terms and covenants contained
herein, the Parties agree as follows:
1. Developer Oblisations. Developer shall:
A. Continue with engineering activities and begin construction activities
related to the Wastewater Treatment System and the Gas Cleanup System.
B. Progress activities related to the financing of the Project, including
negotiation of financing documentation and engagement of independent engineering and
technical advisors.
C. Continue to work with permitting consultants and continue preparation of
permits in connection with the Project.
D. If necessary, continue site evaluation activities, including geotechnical and
topographical evaluations, surveys, and environmental reviews.
Second Work Acceleration Agreement-2
E. Perform, as needed to meet agreed upon schedule, site preparatory work,
including without limitation certain grading and other pre-construction activities.
F. Indemnify and hold harmless City from any liabilities associated with
preparatory work as described in Section 1(E}, to the extent that such liabilities were not
caused solely by City's negligence or willful misconduct.
Notwithstanding the foregoing, nothing contained herein shall obligate Developer to
continue development activities or incur any additional expenses if Developer reasonably
detertnines that City will not move forward with the Project and/or enter into the WTA.
2. Ci Obli ations. City shall:
A. Cooperate with Developer in order to ensure the success of the Project,
including,without limitation, by:
(1) Providing Developer with access to the site and personnel who are
potentially knowledgeable about the site or the Project.
(2) Supporting applications for permits for the Project.
(3) Providing Developer with access to available wastewater flow data,
including volumes and composition, and other pertinent information.
(4) Providing Developer with available site data, such as surveys, site
boundary information, geotechnical reports, wetland reports, archeological
reviews, or similar information.
(5} Providing Developer with access to site to perform site preparatory
work defined in Section 1(E) above.
Grant Developer a non-exclusive license on and about the project site for the
purposes of performing the site preparatory work described in Section 1(E) and
Developer shall indemnify and hold harmless City from any liabilities associated
with same, to the extent that such liabilities were not caused solely by City's
negligence or willful misconduct.
B. Promptly, upon written request from Developer, the City shall reimburse
Developer for all reasonable and documented costs, up to a maximum of$3,500,000.00
incurred by Developer, inclusive of costs incurred through subcontractors, including
Gross-Wen Technologies and Swinerton in relation to the Project if City and Developer
do not enter into the WTA by January 31, 2023, or such other date as may be agreed to by
both Parties in writing;provided however that such reimbursable costs shall not include
legal costs incurred by Developer for the preparation and negotiation of the WTA, which
costs shall be borne solely by the Developer regardless of whether the Parties ultimately
enter into a WTA. Notwithstanding the foregoing, the City shall have no obligation to
Second Work Acceleration Agreement- 3
reimburse Developer if Developer is unable or unwilling to enter into a WTA with
materially similar terms and conditions as the draft provided to the City on November 3,
2022.
3. Term. This Agreement shall be effective commencing on the Effective Date and
shall continue until terminated with the mutual written agreement of the Parties,payment is made
by the City to Burnham in full, as confirmed in writing by Burnham, ar upon the execution of the
WTA by the Parties.
4. Authoritv to Approve A�reement. The Parties represent and wanant that all steps
necessary for the approval of this Agreement have been completed by:
A. Burnham SEV Pasco LLC
Attn: Chris Tynan
1201 Wilson Blvd., 27th Floor
Arlington, VA 22209
B. City of Pasco
Adam Lincoln
Interim City Manager
525 N 3�d Avenue
Pasco, WA 99301
The persons signing below are authorized to do so and the execution of this Agreement is
valid and binding for all purposes.
5. General Provisions.
A. This Agreement constitutes the entire agreement between the Parties and
with the exception of the First Agreement, which shall remain in full force and effect, no
prior oral or written agreement shall be valid, and any modifications of this Agreement
must be in writing signed by all Parties.
B. This Agreement shall be binding on the Parties, and their heirs, successors
and assigns.
C. For the purpose of this Agreement, time is of the essence.
6. Disuute Resolution. In the event of a dispute between the Parties regarding the
interpretation,breach,or enforcement of this Agreement,the Parties shall first meet in a good faith
effort to resolve the dispute by themselves or with the assistance of a mediator. The remaining
dispute shall be resolved by arbitration in accordance with the American Arbitration Association
Rules, with all Parties waiving the right of a jury trial upon de novo review. The Parties stipulate
that Franklin County Superior Court is the appropriate venue, should judicial relief be required.
Any disputes shall be governed by the laws of the State of Washington.
Second Work Acceleration Agreement-4
7. Mutual Cooperation and Further Agreements. The Parties agree to cooperate
in good faith with regard to each and every aspect required for the object of this Agreement, and
to further sign all documents reasonably necessary to accomplish the purposes of this Agreement.
IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
BURNHAM SEV PASCO LLC CITY OF PASCO,WASHINGTON
By: By:
Name: Chris Tynan Name: Adam Lincoln
Title: Chief Executive Officer Title: Interim City Manager
Date: Date:
Second Work Acceleration Agreement- 5