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HomeMy WebLinkAboutBurnham SEV Pasco , LLC - Renewable Natural Gas Project Work 2nd Acceleration Agreement for PWRF WASTEWATER TREATMENT, ANAEROBIC DIGESTION AND RENEWABLE NATURAL GAS PROJECT SECOND WORK ACCELERATION AGREEMENT THIS AGREEMENT (this "AgreemenP') entered into as of December 8, 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 Ciry 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 pertnit levels (the "Wastewater Treatment System"), and a gas cleanup system ("Gas Cleanup System") for the production of renewable natural gas (collectively, the"PYoject"); and WHEREAS,Developer submitted a proposal in response to the City's RFP, and the City has preliminarily selected Developer to undertake the PYoject 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 PYoject; and 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") 1 (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 WHEREA5, 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 Obli�ations. 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. E. Perform, as needed to meet agreed upon schedule, site preparatory work, including without limitation certain grading and other pre-construction activities. 2 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 Ciry'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 determines that City will not move forward with the Project and/or enter into the WTA. 2. Citv ObliQations. City shall: A. Cooperate with Developer in order to ensure the success of the Project, including, without limitation, by: a. Providing Developer with access to the site and personnel who are potentially knowledgeable about the site or the Project. b. Supporting applications far permits for the Project. c. Providing Developer with access to available wastewater flow data, including volumes and composition, and other pertinent information. d. Providing Developer with available site data, such as surveys, site boundary information, geotechnical reports, wetland reports, archeological reviews, or similar information. e. Providing Developer with access to site to perform site preparatory work defined in Section 1(E) above. B. 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 indemnify and hold harmless Developer from any liabilities associated with same, to the extent that such liabilities were not caused solely by Developer's negligence or willful misconduct. C. 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, in relation to the Project if Ciry 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 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 by the City to Burnham in full, as confirmed in writing by Burnham, or upon the execution of the WTA by the Parties. 4. Authoritv to Anarove Ayreement. The Parties represent and warrant 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., 27�'Floor Arlington, VA 22209 B. City of Pasco Adam Lincoln City Manager 525 N 3rd 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 AgYeement 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. Dispute 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. 7. Mutual Cooperation and Further A�reements. 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. [Signature Page Follows] 4 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 ? �. .�;;� � _ � � � -;��r'"� ��, ;�.�, By: By: �- if Name: Chris Tynan Name: Adam Lincoln Title: Chief Executive Officer Title: Interim City Manager Date: � � � � Z 2 Date: i a� (y -aoa�- a� 5�'