AN ORDINANCE OF THE CITY OF RICH HILL, MISSOURI, AUTHORIZING THE MAYOR OF THE CITY, ON BEHALF OF THE CITY, TO ENTER INTO AN AGREEMENT WITH ALLIANCE WATER RESOURCES, INC, FOR WATER AND WASTEWATER SERVICES; AUTHORIZING THE MAYOR AND OTHER CITY OFFICIALS TO EXECUTE ANY AND ALL DOCUMENTS NECESSARY AND TO TAKE ALL ACTION NECESSARY, TO COMPLETE AND PERFORM SAID AGREEMENT; AND FIXING AN EFFECTIVE DATE
WHEREAS, the City of Rich Hill, Missouri has determined that it has a need for water and wastewater professionals to operate and maintain the water treatment plant, wastewater treatment plant, water distribution, and wastewater collections; and
WHEREAS, the Mayor and the Board of Aldermen have determined that the terms and provisions of the proposed Agreement Between City of Rich Hill, Missouri and Alliance Water Resources, Inc. for Water and Wastewater Services by and between the City and Alliance Water Resources, Inc., will serve the interests of the City.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RICH HILL, MISSOURI, AS FOLLOWS:
SECTION A. The City of Rich Hill, Missouri, shall enter into an Agreement between City of Rich Hill, Missouri and Alliance Water Resources, Inc. for Water and Wastewater Services by and between the City and Alliance Water Resources, Inc. A true and accurate copy of the proposed Agreement between City of Rich Hill, Missouri and Alliance Water Resources, Inc. for Water and Wastewater Services is attached hereto and incorporated herein by reference.
SECTION B. The Mayor and City Clerk are hereby authorized to execute the Agreement between City of Rich Hill, Missouri and Alliance Water Resources, Inc. for Water and Wastewater Services, on behalf of the City, and the Mayor and other City personnel are authorized to take all action necessary to complete and perform the Agreement Between City of Rich Hill, Missouri and Alliance Water Resources, Inc. for Water and Wastewater Services.
SECTION C. This ordinance shall be in full force and effect from and after its passage and approval.
READ TWO TIMES, PASSED AND APPROVED THIS 12th DAY OF JUNE, 2018.
___________________________________ Ayes: Kassner, Pilcher, Robb
Jason Rich, Mayor Nays: None
Humble was absent
Brittany Schenker, City Clerk
PROFESSIONAL OPERATING SERVICES
AND MANAGEMENT AGREEMENT
THIS AGREEMENT made and entered into as of this _____ day of _______________ 20_____ (hereinafter referred to as the “Agreement”) by and between the CITY OF RICH HILL, 120 N. 7th Street, Rich Hill, Missouri, 64779 (hereinafter referred to as the “City”) and ALLIANCE WATER RESOURCES, INC., a Missouri corporation (hereinafter referred to as “Alliance”).
WHEREAS, Alliance is engaged in the business of providing management, operation and maintenance services for public water supply, treatment plant and distribution systems and wastewater collection and treatment systems; and
WHEREAS, the City owns a public utility system and is engaged in providing water and sewer service in certain areas in and around the City of Rich Hill, Missouri; and
WHEREAS, the City desires to retain Alliance to perform management, operation, and maintenance services in accordance with the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises herein contained, and for other good and valuable consideration, the receipt of which hereby is acknowledged, the City and Alliance hereby agree as follows:
1.1 The foregoing recitals are adopted as part of this Agreement.
1.2 This Agreement shall supersede and nullify, as of the effective date hereof, any and all prior agreements, amendments to agreements offers, service fees, quotations, and estimates between the parties with respect to the management, operation and maintenance of the City’s Utility System (as that term is defined herein).
1.3 This Agreement, including any and all Appendices, Addenda, and Amendments hereto, constitutes the entire Agreement between the City and Alliance with respect to the management, operation and maintenance of the City’s Utility System.
2.1 “Base Fee” shall mean direct cost plus administrative overhead expense, and management fee. Direct cost shall include labor, materials, supplies, equipment, subcontractor expense or operating expense of any kind necessary to operate and maintain the City’s System in accordance with the Scope of Services as defined in this Agreement.
2.2 “Benefit Plans” shall mean employee benefit programs such as health insurance, group life insurance, and paid vacation periods normally included as part of Alliance’s employees’ overall compensation package.
2.3 “Capital Expenditures” shall mean any expenditure for equipment items, the installation of which materially extends service life, or for replacements, or which are considered capital expenditures in accordance with generally accepted accounting principles, or which are non-routine types of expenditures on an annual basis, or expenditures which the City has planned or budgeted as capital expenditures.
2.4 “Certified Operators” shall mean water and/or wastewater systems operation personnel who have met the applicable licensing requirements of the State of Missouri.
2.5 “Chemical Limit” is defined as the total dollar amount that Alliance will be responsible for in a twelve-month period relating to Chemical Expenditures. The City is responsible for all such expenditures that exceed the Chemical Limit. If chemical costs are less than the annual Chemical Limit, Alliance will refund to the City the difference.
2.6 “City’s Utility System” shall mean the facilities owned by the City including additions, replacements and improvements to such systems as described in Section 3 of this Agreement.
2.7 “Customer” is defined as any person, persons, firm, corporation or partnership using or allowing the use of water and/or sewer service(s) provided by the City.
2.8 “Duly Authorized Representative” shall mean such person, designated by either party by written notice to the other, as specific representative of the designating party in connection with performance of this Agreement.
2.9 “Equipment, Vehicle or Facility Repair Expenditures” shall mean those Operating Expenditures for labor, materials and subcontractors incurred by Alliance to perform those non-routine or non-repetitive activities required for operational continuity, safety and performance and which generally arise upon failure of equipment, a vehicle, or the facility, or some component thereof.
2.10 “Maintenance Expenditures” shall mean those Operating Expenditures incurred by Alliance to perform routine or repetitive activities required or recommended by the equipment or plant item manufacturer, or Alliance, to maximize the service life of the equipment or plant item.
2.11 “Operating Expenses” shall mean costs of every kind and nature that Alliance shall determine necessary to pay or to become obligated to pay because of, or in connection with, the management, operation and maintenance of the City’s Utility System.
2.12 “Repair Limit” is defined as the total dollar amount that Alliance will be responsible for in a twelve-month period relating to Maintenance Expenditures and Equipment, Vehicle or Facility Repair Expenditures. The City is responsible for all such expenditures that exceed the Repair Limit. If repair costs are less than the annual Repair Limit, Alliance will refund to the City the difference.
2.13 “Utility Services” means the provision by the City of water and/or sewer services to its customers.
- CITY’S UTILITY SYSTEM
3.1 The City’s Utility System to be managed, operated and maintained by Alliance shall consist of the water pumping, water treatment, wastewater treatment, water distribution, and sewer collection, facilities owned by the City including but not limited to water treatment plant, wastewater treatment plant, water intake, water reservoir, water distribution, collection system, and lift stations. It shall also include additions, replacements, and improvements to such systems.
3.2 The City’s Utility System shall include all physical property, whether real, personal, or mixed, comprising such systems, as well the land thereunder owned or leased by the City or other city or municipal owned water or wastewater system contracting with the City for services and easements and rights of way.
4.1 The City’s Utility System shall remain the property of the City.
4.2 All additions, replacements and improvements to the City’s Utility System, and extensions thereof, shall be and remain the property of the City as installed.
- SCOPE OF SERVICES
5.1 Subject to the terms and conditions of this Agreement, Alliance shall provide all management, operation and maintenance services and shall bear the cost of such operating services as necessary to enable the City to provide adequate Utility Services to its customers, and to conduct the general business of the City.
5.2 Within the design capacity and capability of the City’s Utility System, Alliance shall operate and maintain the City’s Utility System to meet the requirements of the Missouri Department of Natural Resources, and any other governmental entity or agency having regulatory control over the City’s Utility System.
5.3 All services hereunder shall be in accordance with sound management, accounting and engineering principles and the law.
5.4 Alliance shall not be responsible for payment of extraordinary utility system and equipment maintenance, repair or replacement expenses.
Extraordinary expenses shall be defined as costs in excess of the maximum annual Repair Limit as specified herein. In addition, any individual project repair costs in excess of $1,000 shall be considered extraordinary.
In the event that any extraordinary expenses should occur, the City shall be promptly notified and shall be provided with an accounting of such expenses. Any extraordinary expenses must be approved by the City in advance and payment thereof shall be the responsibility of the City.
5.5 Alliance shall maintain documentation of routine maintenance. A duly authorized representative of the City shall have the right to inspect these records during regular business hours. Maintenance shall not include repair resulting from flood, fire or other extraordinary occurrences customarily not encountered in the operation and maintenance of the City’s Utility System.
5.6 Except as stated in Section 5.7, Capital Expenditures are not included in the scope of Alliance’s services under this Agreement. All capital expenditures shall be the responsibility of the City, and if to be performed by Alliance, shall be the subject of a separate agreement and paid for by the City.
5.7 Notwithstanding Section 5.6, Alliance shall make emergency Capital Expenditures if such expenditures are necessary to continue operation of the City’s Utility System so as to provide adequate service, and prior approval of Utility reasonably cannot be obtained. The City shall reimburse Alliance for such emergency Capital Expenditures in accordance with Section 7.
5.8 Alliance shall not be responsible for payment of any elected or appointed officials’ compensation.
5.9 The following expenditures are specifically excluded from Alliance’s scope of work and payment obligations:
a. Capital Expenditures, except those described in Section 5.7
b. Changes in scope of work which would have the effect of increasing Alliance’s payment obligations, except as otherwise mutually agreed upon by Alliance and the City.
c. Flood and fire damages.
d. Property damage, liability and directors’ liability insurance.
e. The City’s expenses including electric, gas, telephone, water and sewer, SCADA, circuit communications and alarm expenses. (Cell phone and internet expenses excluding those related to SCADA are included in Alliance’s Base Fee.)
f. Excavations and repairs made by contractors for extraordinary or routine maintenance of mains and appurtenances.
g. Professional services including but not limited to legal, accounting and design engineering services.
h. Maintenance and repair services necessary to restore newly acquired facilities to reasonable operating condition.
i. Personal property or other taxes.
j. Extraordinary maintenance repair or equipment replacement expense as specified in Section 5.4 or as otherwise provided for in the annual utility budget.
k. Wholesale treatment charges or water purchase expenses.
l. All office and field services building expense including but not limited to rent, utilities and maintenance expense.
5.10 Alliance will staff the City’s Utility System with sufficient numbers of State water and wastewater Certified Operators experienced in the City’s Utility System operation and maintenance to meet regulatory requirements.
5.11 Alliance has the right to use subcontractors and consultants to satisfy its obligations under this Agreement.
5.12 The City at any time may request Alliance to perform additional services which are outside the Scope of Services under this Agreement. Alliance shall invoice such services to the City at actual cost plus 10%. The City shall pay such invoices in accordance with Section 7.
5.13 Alliance shall prepare and provide a monthly operations report, meet and discuss report with the City or duly authorized representative when requested.
5.14 Alliance shall develop and prepare annual Consumer Confidence Reports for the City to distribute to customers in accordance with MDNR regulations.
5.15 Alliance shall direct the work of any of the City’s real estate and easement acquisition agents, work cooperatively with the City’s engineers and Legal Counsel for the purposes of obtaining water and sewer easements, property acquisitions and other real estate needs as determined necessary by the City.
5.16 Alliance shall develop and prepare annual budgetary proposals and recommendations for the City’s consideration.
5.17 Alliance shall prepare or assist in the preparation of governmental, official and customer correspondence including monthly, quarterly or annual reports, develop and prepare press releases, provide other information and educational materials as deemed necessary or appropriate to help perform the City’s public purpose.
5.18 Alliance shall be responsible for the feeding and watering of the animals held in the City’s dog pound and the cleaning of the kennels. The City shall provide for all feed and supplies used for these tasks.
6.1 The City shall pay Alliance a Base Fee of $385,000.00 per year ($32,083.33 per month) for services rendered as described in the Agreement for the first full year of service beginning January 1, 2019 and ending December 31, 2019. The Base Fee for the first full year of service includes a $20,000.00 Repair Limit and a $45,000.00 Chemical Limit as described in this agreement.
The City shall pay Alliance a prorated Base Fee of $160,416.65 ($32,083.33 per month) for services rendered as described in the Agreement for the period starting August 1, 2018, and ending December 31, 2018. The prorated Base Fee includes a $8,333.00 Repair Limit and a $18,750.00 Chemical Limit.
6.2 The Base Fee, Repair Limit, and Chemical Limit shall be subject to renegotiation at the end of the first year of service and annually thereafter and thus may be revised with the written consent of both parties. In the event that the parties fail to agree, the Base Fee, Repair Limit, and Chemical Limit shall be adjusted in proportion to the change in the Consumer Price Index for all urban consumers (U.S. City Average) in the most recent twelve (12) month period prior to the time of renegotiation as published by the U.S. Department of Labor. Such increase shall not be less than 3% and not more than 8% unless otherwise agreed upon.
6.3 The Base Fee, Repair Limit, and Chemical Limit shall be subject to renegotiation due to any substantial change in the costs of the City’s Utility System operation and maintenance, including but not limited to changes in flow, customer accounts, monitoring or reporting requirements, personnel or staffing requirements, or increased costs due to Force Majeure occurrences.
6.4 In the event that a change in the Scope of Services provided by Alliance occurs, and is mutually agreed upon with the City, Alliance and the City will negotiate a commensurate adjustment in compensation. All compensation adjustments resulting from changes in the Scope of Services provided by Alliance shall be retroactive to the date the new or increased level of service is first provided.
- PAYMENT OF COMPENSATION
7.1 The compensation described in Section 6 shall be payable monthly and shall be due and payable on the first of the month for which services were rendered.
7.2 All other compensation due to Alliance from the City shall be due upon receipt of Alliance’s invoice and payable within thirty (30) days.
7.3 The City shall pay interest at the rate of nine percent (9%) per annum on compensation not paid when due, or payments of invoices not paid within thirty (30) calendar days. Interest shall commence on the due date.
- INDEMNITY, LIABILITY AND INSURANCE
8.1 Alliance shall indemnify, save harmless and defend the City and its officers, employees, and agents from any and all claims, liabilities, penalties, fines, forfeitures, suits and costs and expenses incident thereto, including reasonable attorneys’ fees, which the City may incur, pay in settlement, or become responsible for as result of death or bodily injury to any person, damage to any property, adverse effects on the environment, or violation of any law arising out of or relating to Alliance’s material breach of any term of this Agreement, or any negligent or willful act or omission of Alliance, its employees, or subcontractors in the performance of this Agreement.
The City shall, to the extent permitted by law and without any waiver of sovereign immunity, indemnify, save harmless and defend Alliance from any and all claims, liabilities, penalties, fines, forfeitures, suits and costs and expenses incident thereto, including reasonable attorney’s fees, which Alliance may incur, pay in settlement, or becoming responsible for as a result of death or bodily injury to any person, damage to any property, adverse effects on the environment, or violation of any law arising out of or relating to the City’s material breach of any term of this Agreement, or any negligent or willful act or omission of the City, its employees, or subcontractors in the performance of this Agreement.
The City and Alliance shall each provide the other with prompt and timely written notice of any event or proceeding of which either acquires knowledge and for which indemnification may be sought so that each shall have any opportunity which exists to take such actions as may be desirable to contain or minimize the consequences of any such event or proceeding and to defend or settle at such party’s expense any such proceeding.
8.2 Alliance shall be liable for fines or civil penalties imposed by regulatory agencies for violation of the City’s NPDES permits or rules or regulations of the Missouri Department of Natural Resources or the United States Environmental Protection Agency which occur during the term of this Agreement and which were caused by Alliance’s negligence or willful conduct. Alliance shall be given full authority to contest such violations and the City shall assist Alliance in such proceedings. Except to the extent caused by Alliance’s negligence, willful conduct, or breach of its obligations under this Agreement, Alliance shall not be responsible for fines or penalties or any other liability if influent characteristics exceed Facility design parameters, influent contains biologically toxic substances, source water contains non-treatable substances or the Facility is inoperable due to circumstances beyond Alliance’s control (See Exhibit B).
8.3 Alliance’s liability under this Agreement specifically excludes any and all indirect or consequential damages arising from the operation, maintenance, and management of the Facility. Alliance shall not be responsible for damages caused by any defects or flaws inherent in the City’s Utility System as it exists prior to Alliance beginning operations. Additionally, Alliance shall not be responsible for such damages in the event that Alliance has notified the City of any defects and the City fails to authorize appropriate corrective action. Alliance and the City agree that throughout the life of this Agreement any and all damage claims related to the City’s Utility System shall continue to be processed and resolved in accord with the City’s current practice.
8.4 Each party shall obtain and maintain insurance coverage of a type and in amounts described in Exhibit A. Each party, to the extent permitted by law, shall name the other party as an additional insured on all insurance policies covering the Facility and shall provide the other party with satisfactory proof of insurance upon written request.
- TERM AND TERMINATION
9.1 This Agreement shall become effective on August 1, 2018, and shall remain in effect through December 31, 2023, subject to annual appropriation of funds by the City. If the City appropriates funds for operation and/or maintenance of the City’s Utility System this Agreement shall remain in force and effect.
9.2 This Agreement shall be automatically renewed for successive terms of one (1) year each unless notice of cancellation is given by either party no less than ninety (90) days prior to date of expiration.
9.3 This Agreement may be terminated by either party for breach of contract terms by the other. Such right of termination shall be in addition to any other claims or remedies either party may have against the other at law or in equity.
9.4 Such termination shall be effected as follows: The party declaring a breach shall give the other written notice of the breach and sixty (60) days from the date of notice to cure. In the event the other party fails to cure within that period, the party serving notice may elect to terminate and shall give written notice of its election to terminate effective not more than ninety (90) days after the date of the notice of election to terminate.
9.4 If a breach is claimed by Alliance over a disputed invoice or payment, Alliance will, at the City’s option, continue to perform under the Agreement subject to resolution of the dispute by a court or agency of competent jurisdiction, provided either party initiates such action within the sixty (60) day cure period.
- LABOR DISPUTES
10.1 In the event labor stoppages by employee groups or unions (i.e., picketing) cause a disruption in Alliance’s employees entering and working on the City’s Utility System, Alliance, at its own option, may seek appropriate injunctive court orders or temporary, additional, qualified personnel. During the labor dispute, Alliance shall operate the City’s Utility System on a best efforts basis until labor relations are normalized.
- EXTRAORDINARY CIRCUMSTANCES
11.1 Neither party shall be liable for its failure to perform its obligations under this Agreement if performance is made extraordinarily difficult, or costly, due to any unforeseeable occurrences beyond its reasonable control, including, but not limited to, fire, abnormal flooding, riot, war, sabotage, governmental laws, ordinances, rules or regulations, except that Alliance will be responsible for failure to perform as a result of governmental action based on Alliance’s failure to comply with rules, regulations and laws pertaining to the City’s Utility System; inability to obtain electricity or other type of power, cessation of transportation, and other similar contingencies.
11.2 The party claiming inability to perform hereunder shall notify the other party immediately by verbal communication and in writing by certified mail, return receipt requested, of the nature and extent of the contingency within fourteen (14) days after its occurrence.
11.3 A declaration of inability to perform under this contract by either party does not relieve the parties from obligations not affected by the conditions claiming inability under this provision of the Agreement.
- FUTURE CONSTRUCTION
12.1 Alliance, along with the City and the City’s designated Consulting Engineering firm, will work together to maintain accessibility and minimize disruption and outages to the existing City’s Utility System when future improvements are under construction.
12.2 Alliance will work with the City and the City’s consulting engineer(s) and contractor(s) to coordinate activities. In the event a critical piece of equipment or plant must be taken out of service, a plan shall be developed and approved by all parties ten (10) working days prior to the scheduled outage, and addressing the impact on plant operations, length of outage, and methods of removing and reactivating the equipment to full service. The City shall pay all extra costs associated with said equipment outage. Alliance shall not be responsible for regulatory violations due to such interruptions.
12.3 In the event the City’s contractor or subcontractor causes damage to the City’s Utility System, Alliance shall immediately notify the City’s duly authorized representative and shall take all actions necessary to minimize further damage.
12.4 The City, or Alliance on behalf of the City, shall direct the contractor to complete all repairs within a reasonable time. In the event that contractor does not make the repairs in a timely and reasonable manner, Alliance shall notify contractor and the City of such failure to repair, and if work is not initiated immediately to effectuate such repair, within forty-eight (48) hours of such notice, Alliance shall, with the City’s consent, make said repairs, and recover costs of the repairs from the City.
13.1 This Agreement may be modified only by written amendment signed by both parties.
14.1 A waiver on the part of either party of any term, provision, or condition of this Agreement shall not constitute precedent, nor bind either party to a waiver of any succeeding breach of the same or any other term, provision, or condition of this Agreement.
- APPLICABLE LAW
15.1 This Agreement shall be governed by and interpreted in accordance with the laws of the State of Missouri.
16.1 This Agreement shall be binding upon and endure to the benefit of the respective successors and assigns.
17.1 Section headings used in this Agreement are inserted for convenience of reference only and shall not affect the content of its various provisions.
18.1 All notices shall be in writing and delivered in person or transmitted by certified mail, return receipt requested, postage prepaid, as follows:
If to the City: City of Rich Hill
120 N 7th St.
Rich Hill, MO 64779
If to Alliance: Alliance Water Resources, Inc.
206 South Keene St.
Columbia, MO 65201
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized and their respective corporate seals to be herewith affixed and attested by their respective officers having custody thereof the day and year first above written.
CITY OF RICH HILL, MISSOURI:
Alliance WATER RESOURCES, INC.
Alliance shall maintain:
A1. Statutory Worker’s Compensation Insurance for all Alliance employees at the Utility as required by law.
A2. Comprehensive or commercial general liability insurance for bodily injury and/or property damage as follows:
General Aggregate $3,000,000
Each Occurrence Limit $1,000,000
Umbrella Aggregate $4,000,000
A3. Shall maintain adequate property insurance for its equipment and real and personal property, including but not limited to extended coverage.
A4. Shall provide, with respect to its owned vehicles, Commercial Automobile Liability Insurance for bodily injury and/or property damage with $1,000,000 per occurrence.
The City agrees:
A5. To file sewer backup claims with their insurance carrier.
A6. Assist the City to provide information and documentation to support or deny the settlement of claims by the City’s insurance carrier.
WATER TREATMENT FACILITY
B.1 Alliance shall not be responsible for fines or penalties or any other liability if there are limitations with the water treatment facility which limit adequate treatment, or the City’s Utility System is inoperable due to circumstances beyond Alliance’s control.
B.2 In the event that water quality requirements are revised in the future, Alliance shall have the right to renegotiate the terms of Sections 5 through 7 in the Agreement by giving notice to the City of the revised water quality requirements.
WASTEWATER TREATMENT FACILITY
B.3 Alliance shall not be responsible for fines or penalties or any other liability if there are limitations in the collection system design or plant design which limit adequate collection or treatment, or if the wastewater influent exceeds facility design parameters including maximum daily and instantaneous flow, does not contain adequate nutrients, contains biologically toxic substances, or the Facility is inoperable due to circumstances beyond Alliance’s control.
B.4 Alliance liability regarding payment of fines, penalties or any other related liability is restricted to effluent limitations established in existing NPDES Permit No MO-0092517 dated December 1, 2017. In the event that effluent limitations are revised in subsequent NPDES permits, Alliance shall have the right to renegotiate the terms of Sections 5 and 6 in the Agreement by giving notice to the City within forty-five (45) days after the effective date of the revised permit.