HomeMy WebLinkAboutESG OPERATIONS
AGREEMENT
for
OPERATIONS, MAINTENANCE AND
MANAGEMENT SERVICES
for
AUGUSTA, GEORGIA
THIS AGREEMENT is made on this ~"day of December, 2009; between AUGUSTA,
GEORGIA, by and through the Augusta-Richmond County Commission, a political
subdivision of the State of Georgia (hereinafter "Augusta"), and ESG OPERATIONS, INC., a
Georgia corporation, (hereinafter "ESG").
Augusta and ESG, for and in consideration of the mutual covenants, agreements and promises as
hereinafter set forth, do hereby agree and contract as follows:
1. GENERAL
1.1 All definitions of words or phrases used in this Agreement are contained in Appendix A
which is herewith incorporated by reference and made a part hereof.
1.2 All grounds, facilities, equipment, and vehicles owned by Augusta as of the date of this
Agreement or acquired by Augusta during the term of this Agreement shall remain the
property of Augusta.
1.3 This Agreement shall be governed by and interpreted in accordance with the laws of the
State of Georgia.
1.4 This Agreement shall be binding upon the successors and assigns of each of the parties,
but neither party will assign this Agreement without the prior written consent of the
remaining party to this Agreement. Consent concerning a proposed assignment shall not
be unreasonably withheld.
1.5 All notices required or permitted to be made under this Agreement shall be in writing,
signed by the party giving such notice, and delivered personally, sent by certified mail or
sent by overnight mail to the other party at the address set forth below, or at such other
address as the other party may hereafter designate in writing.
City of Augusta
City Administrator, 530 Greene Street, Room 801, Augusta, GA 30911
Utilities Director, 360 Bay St, Suite 180, Augusta, GA 30901
ESG Operations, Inc., 6400 Peake Road, Macon, Georgia 31210
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1.6 This Agreement, including Appendices, is the entire Agreement of the parties. This
Agreement may be modified only by written agreement signed by both parties. Wherever
used, the terms "ESG" and "Augusta" shall include the respective officers, agents,
directors, elected or appointed officials, and employees.
2. ESG's SCOPE OF SERVICES
ESG shall, pursuant to the terms and conditions of this Agreement, perform the following
services as may be related to the Project (collectively the "Scope of Services"):
2.1 Operate and maintain the Project over a 24-hour per day, seven-day per week period,
under full-service contract operations and maintenance. The agreed on initial budgeted
staffing levels to provide adequate operation and maintenance of the Project is
identified in Appendix F. The Messerly facility shall be staffed continuously; however,
ESG may utilize off-site staff to meet staffing requirements regarding the remaining
Project facilities. ESG shall make every reasonable effort to maintain the agreed to
staffing levels, but will not be in breach of this agreement for mutually-agreed upon
deviations in actual staffing, or for short term fluctuations due to the time required to
hire replacement employees. ESG and Augusta acknowledge that staffing for the
Project may require modification due to changes in the requirements of proper operation
and the services to be provided pursuant to the terms of this Agreement. Following the
initial six (6) months of this Agreement, ESG may, at any time during the term of this
Agreement, recommend an alteration in staffing for consideration and approval by
Augusta.
2.2 Staff the Project with qualified personnel, inclusive of management, administrative,
operational, technical, laboratory and clerical, who meet the applicable certification
requirements of the State of Georgia as may be specifically related to the Project tasks
performed by each such employee. ESG staff shall be capable and demonstrate the
necessary experience to operate and maintain the Project.
2.3 Provide a minimum of 26 hours per year per employee (prorated for those not working a
full year) of training for personnel in areas of operation, maintenance, and safety, with
additional training as appropriate for professional and specific skills development.
2.4 Augusta shall have the right to approve each and every resident Project Manager that
ESG assigns to direct the management, operation and maintenance of the Project. The
initial Project Manager shall be Paul Tickerhoof. ESG agrees not to reassign the initial
Project Manager for at least the initial three years of this Agreement, unless directed or
agreed by Augusta. Augusta agrees not to unreasonably withhold approval of a
proposed Project Manager in the event the initial Project Manager is (a) reassigned by
ESG following the completion of the initial three year period; (b) voluntarily terminates
his or her employment with ESG; or (c) is terminated by ESG.
2.5 Within the design capacity and capability of the Messerly WPCP, Spirit Creek WPCP
and Spirit Creek Pump Station facilities, manage, operate, and maintain said facilities in
full compliance with the requirements of the applicable NPDES permit for each facility
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and all applicable federal, state and local laws or regulations. Meet reporting
requirements as provided by all applicable laws and regulations concerning the
operation, management and maintenance of the Messerly and Spirit Creek facilities.
2.6 The Messerly and Spirit Creek facilities shall be operated in a manner that effectively
controls odor and noise so that no avoidable disruption of adjacent neighborhoods or
businesses results.
2.7 Provide for monitoring and control of septage deliveries as provided by Augusta's
applicable sewer use ordinance.
2.8 Provide for the collection and hauling of screenings, grit, sludge and scum ("Waste") to
Augusta's existing or approved disposal sites. All Waste and/or byproduct generated
during ESG's performance of services are and shall remain the sole and exclusive
property of the Augusta. All manifests or other documentation required for disposal of
Waste shall be signed by or in the name of Augusta.
2.9 Effective January 1, 2010 provide for the disposal of sludges and biosolids to disposal
utilization sites consistent with industry-accepted management practices. ESG will
maintain adequate records regarding disposal or utilization of residuals and make
reasonable efforts to minimize associated cost. Any permits for sludge disposal or
utilization shall remain in the name of Augusta.
2.9.1 Industry accepted management practices shall include, but shall not be limited to,
the following:
2.9.1.1 General. ESG shall be responsible for removing sludges and biosolids
from the Messerly facility for transporting said sludges and biosolids to
destination points at approved sites, and for applying the biosolids to
Approved sites in an approved manner. ESG shall be responsible for
acquiring, operating, and maintaining all equipment, and for providing
sufficient, trained personnel required for its operations described herein.
2.9.1.2 Utilization at Approved Sites. ESG shall:
2.9.1.2.1 Arrange for utilization of all of the biosolids on approved
sites. ESG acknowledges that Augusta currently has contracts in
place for the utilization of biosolids on certain sites within
Richmond County, Burke County, and Jefferson County, Georgia,
which sites shall be Approved sites. ESG agrees to continue the
utilization of biosolids on said sites, and to comply with all terms
and conditions contained in those existing contracts. Owner and
ESG may open new sites with the mutual consent of the parties,
which sites will then become Approved sites. In such instance,
ESG and Owner shall collaborate in negotiating contracts
acceptable to Augusta for the utilization ofbiosolids on the site, for
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executing any and all contacts required for use of any approved
site and in advance of utilization, obtain all permits; provided,
however, that any such permits shall be in the name of Augusta,
Georgia. Augusta may, in its sole discretion, direct ESG to
develop and use a particular site as an Approved site, pending
necessary regulatory and/or landowner approval. Any such
directive shall comply with all applicable environmental laws and
all other applicable laws. Such agreements shall be between
Augusta and the site owners.
2.9.1.2.2 Obtain, when contracting for the use of any approved site,
the long-term, continued right of ingress and egress by Augusta for
the purpose of testing and monitoring each approved site to review
compliance by ESG with all federal, state, and local Environmental
Laws.
2.9.1.2.3 Not place, hold, locate, release or dispose of, or knowingly
permit others to place, hold, locate, release, or dispose of, any
hazardous substance, hazardous waste, or other toxic substance on,
under or at any Approved site.
2.9.2 Utilization of Biosolids. ESG shall dispose of and utilize the biosolids in
accordance with the Rules of the Georgia Environmental Protection Division,
Chapter 391-3-4, all Federal Statutes, rules, and regulations, including without
limitation 40 CFR Part 503, and all applicable State and local statutes, rules and
regulations.
2.9.3 Equipment and Vehicles. ESG shall be responsible for providing all equipment
and vehicles necessary to remove, transport, and utilize the biosolids without
unreasonable interruption of operation due, for example, to breakdown or in
operation of such equipment and vehicles. ESG will maintain all of its equipment
and vehicles, including any which are leased by ESG, in good working order and
clean, free from any buildup of mud, dirt, rock, gravel and other sediment. ESG
shall take every precaution reasonably necessary to prevent its equipment and
vehicles from depositing Biosolids, mud, dirt, rock, gravel or other sediment on
public roadways or rights-of-way.
2.9.3.1 ESG further acknowledges and agrees that it is responsible for procuring
any and all licenses and permits, and making all filings with the State of
Georgia and/or other applicable regulatory authorities, necessary in
connection with operation of the vehicles.
2.9.4 Liming Program. ESG shall operate a liming program in conjunction with the
biosolids services to be performed hereunder, as follows:
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2.9.4.1 ESG shall be responsible for taking annual soil samples of approved sites,
and applying lime to said sites in accordance with the
results/recommendations of the soil samples.
2.9.4.2 ESG shall not apply, nor invoice Augusta for more lime than is indicated
by the soil samples.
2.9.4.3 ESG agrees that it will avoid liming of any approved sites as to which past
liming practices have been poor with the intent of this subsection that
Augusta not be required to pay for reclamation liming of such sites, but be
required to apply only for liming which is part of a soil pH maintenance
program.
2.9.5 Federal Permit Requirements. ESG shall abide by all federal rules and
regulations governing the land application of wastewater and water residuals.
This includes the self-implementing provision of 40 CFR Part 503. ESG shall
abide by all federal monitoring and reporting requirements applicable to land
appliers. This includes preparation of an annual report to Augusta meeting the
monitoring and reporting requirements of 40 CFR Part 503 that are applicable to
land application, for submittal by Augusta to Region IV of the EP A.
2.9.6 State Land Application Permit Requirements. ESG shall abide by all
requirements and conditions of the State of Georgia Environmental Protection
Division Permit No. GA0037621 that are applicable to the land applier for the
continued operation of Augusta's wastewater residual land application program.
This includes preparation of an annual report to Augusta meeting the monitoring
and reporting requirements of State Regulations to land application for submittal
by Augusta.
2.9.7 Local Requirements and Issues. ESG shall comply with the following local
requirements:
2.9.7.1 ESG shall endeavor to maintain excellent working relationships with the
landowners. Periodic work shops shall be held to inform the landowners
of the current status of the program and of any changes.
2.9.7.2 ESG shall maintain equipment in a condition that is reasonably acceptable
to maintain a positive image for Augusta.
2.9.7.3 ESG shall develop a spill protection plan for transport and land application
sites and submit the plan for approval prior to beginning operations.
2.9.7.4 ESG shall inspect ESG's residuals storage, transport, and application
facilities to prevent malfunctions and deterioration, operator errors and
wastewater residual discharges which may cause or lead or the release of
wastes to the environment, a threat to human health, or a nuisance. ESG
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shall maintain an inspection log or summary including at least the date and
time of the inspection, observations made, and any maintenance, repairs,
or corrective actions taken by ESG.
2.9.7.5 ESG shall maintain and submit to Owner as requested a 6-month "look
ahead" schedule to facilitate communication with program participants
regarding potential application dates. This schedule will be updated
monthly.
2.9.8 If any part of the work under this Agreement is sublet or if any independent
contractor is hired to perform any part of the work under this Agreement, the
Subcontractor and/or independent contractor shall be required to meet all
insurance requirements set forth in Appendix C to the Agreement dated January 1,
2010, and the provision for Automobile Liability Insurance hereinafter set forth.
However, this will in no way relieve ESG from meeting all insurance
requirements or otherwise being responsible for the subcontractor and/or
independent contractor.
2.9.8.1 Automobile Liability. For each vehicle (whether owned, non-owned or
hired) utilized by ESG or any independent contractor or subcontractor
working with ESG in the performance of this Agreement, automobile
liability insurance must be carried as follows: bodily injury and property
damage liability covering all owned, non-owned and hired automobiles for
limits of not less than One Million Dollars ($1,000,000) bodily injury each
person, each accident and One Million Dollars ($1,000,000) combined
single limit bodily injury and property damage.
2.10 Be responsible for maintaining all manufacturers' warranties on new equipment
purchased by Augusta for Project use and assist Augusta in enforcing existing warranties
and guarantees applicable to equipment in use for the Project as of the effective date of
this Agreement.
2.11 Provide Augusta with a schedule for preventive and corrective maintenance on all
Augusta owned equipment utilized to execute the Scope of Services to be performed by
ESG in accordance with manufacturer's recommendations or good maintenance practices
at intervals and in sufficient detail as may be determined by Augusta. Provide Augusta
with complete documentation of maintenance performed inclusive of corrective and
preventive maintenance and a spare parts inventory.
2.12 Maintain the present industrial waste sampling and laboratory analysis program, as
described in the Augusta Pretreatment Ordinance. Results of all industrial sampling and
testing shall be reported to Augusta in a timely manner.
2.13 Be responsible for all laboratory testing and sampling required by any current or future
NPDES permit for the Project or for any other current or future permits required for the
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Project, excluding air quality testing except as related to odor control system performance
testing
2.14 Prepare state and federal plant performance reports and submit them to Augusta for
review and approval prior to transmittal by ESG to appropriate agencies. Any
unreasonable costs incurred in preparing said reports on account of an error or omission
by ESG shall be borne by ESG and not Augusta.
2.15 Prepare all NPDES permit reports related to the Scope of Services performed by ESG or
any report as may be required by any administrative order issued by the Georgia
Environmental Protection Division. Any such report shall be submitted to Augusta for
approval. ESG shall transmit approved reports to the appropriate agency. In the event a
fine is levied as a result of the submission of a late report, ESG shall be responsible for
payment of the fine if ESG failed to complete the report, secure Owner approval and file
the report in a timely manner.
2.16 Implement and maintain an operator safety program in compliance with all applicable
laws, rules and regulations and make recommendations to Augusta regarding the need, if
any, for Augusta to rehabilitate, expand or modify the Project to comply with
governmental safety regulations applicable to ESG's operations hereunder.
2.17 Develop and implement an Emergency Response Plan (ERP) on or before April 1 S\ 2010.
The ERP shall be submitted to Augusta for approval prior to implementation. Approval
by Augusta of the ERP shall not be unreasonably withheld.
2.18 Provide an inventory of equipment, chemicals and lubricants as set forth in Appendix D
that are presently being used for the Project as of the Effective Date of this Agreement.
Such inventory shall be provided on an annual basis to Augusta at the conclusion of each
contract year.
2.19 Provide and document all chemicals for the Project. Provide Augusta with an accounting
of actual chemical expenditures and consumption on not less than a quarterly basis. ESG
will provide Augusta with a detailed invoice of chemical expenditures over the annual
chemical expenditure budget. Should Augusta and ESG fail to agree for any given
Contract Year, the chemical expenditure budget will be determined by the application of
the Consumer Price Index adjusted for actual consumption in the prior year and any flow
increases over the prior year.
Upon termination of this Agreement, ESG shall leave all unused chemicals purchased by
Augusta for operation of the wastewater treatment facilities.
2.20 Provide and document repairs for a cost not to exceed the budget shown in Appendix F
for the initial year of this Agreement, January 1 S\ 2010 through December 31 S\ 2010 and
for a cost not to exceed the established amount for repairs as established for each
subsequent Contract Year. In the event actual repair costs exceed the repair cost limit
established, ESG shall invoice and Augusta shall pay excess repair costs on a monthly
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basis. Said repairs will be invoiced at direct costs with no markup for overhead or profit.
ESG shall rebate to Augusta the entire amount that actual repair costs are less than the
repair limit established for any year of this Agreement. Repair costs below or in excess
of annual repairs limits shall not contribute to base fee overages or underages. ESG shall
notify Augusta in writing as soon as repair trend provides a reasonable indication that
actual repair costs may exceed annual budget. ESG shall not exceed repair budget
without written authorization from Augusta's Designated Representative.
2.21 ESG may alter the process and/or facilities to achieve the objectives of this Agreement;
provided, however, no alteration shall be made without Augusta's written approval if
alteration shall cost in excess of Two Thousand Dollars ($2,000.00). Further, no
material alternation shall be made without ESG providing written documentation of such
to Augusta's Designated Representative to document said modification or alternation.
2.22 Interface with state regulatory agencies and represent Augusta as may be necessary
concerning operation, maintenance and management of the Project relative to all permits
issued by the state of Georgia directly related to the operations associated with the
Project. Coordinate and facilitate permit renewals and expansions related to the Project.
2.23 Investigate and respond to citizen complaints.
2.24 Assist Augusta on an as needed basis when Augusta undertakes grant applications related
to the Project.
2.25 Utilize Augusta's computerized maintenance management and asset management system
that furnishes complete and accurate records and is capable of readily providing historical
data and trends.
2.26 Provide Augusta within the first ninety (90) days of the term of this Agreement a listing
of any recommended capital improvements, inclusive of safety improvements, that ESG
believes will be required for any of the facilities covered under this Agreement. In the
event a recommended capital improvement does not require immediate implementation
such recommendation shall be included in the five year capital plan.
2.27 Provide an updated recommended five year capital plan each year for the wastewater
facilities. ESG shall work with Augusta staff and the engineer designated by Augusta in
the development and providing of each five year capital plan.
2.28 Provide Augusta with a full accounting of all project specific expenditures at intervals
and in sufficient detail as may be determined by Augusta and assist Augusta in the
preparation of annual operating budgets. Augusta shall be allowed to conduct or have
conducted audits at Augusta's sole cost and expense of all accounting related to the direct
performance of the Scope of Services pursuant to the terms of this Agreement at times to
be mutually agreed by the parties. To the extent possible all ESG project specific
expenditures with take place in Augusta, Georgia, unless otherwise agreed. ESG shall
provide that all accounts, operating records, documents, spreadsheets and correspondence
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relating to the performance of the Scope of Services under the terms of this Agreement
shall be open to inspection to Augusta during normal business hours upon the providing
of reasonable notice for the purpose of auditing costs or verifying ESG's performance.
ESG shall provide to Augusta copies of all records, accounts, operating records,
documents, spreadsheets and all correspondence relating to the performance of the Scope
of Services under the terms of this Agreement within thirty days of the termination of this
Agreement.
2.29 Owner-Directed Capital Improvements, to be funded by Augusta and which are not
included in Appendix F, are provided for during the term of this Agreement with an
annual allowance of Five Hundred Thousand Dollars ($500,000) for each year in order
to provide funding for ESG to perform major corrective repair, replacement,
rehabilitation, and/or construction of facilities and equipment associated directly with or
peripheral to Augusta's wastewater conveyance and treatment facilities. Augusta has the
sole authority to identify specific projects and issue formal written requests to ESG to
perform Owner-Directed Capital Improvements. ESG may accept or reject a project
based upon ESG's determination if the company has the expertise or resources available
to perform the project. ESG's compensation for Owner-Directed Capital Improvement
projects is direct cost plus five percent rather than the Management and Administrative
Fee established in Article 4. On site labor already covered under this Agreement shall
not be billed against the Owner-Directed Capital Improvements account.
2.30 Operate and maintain the present Industrial Pretreatment Program (IPP) including all
monitoring, inspections, sampling, testing, reporting and record keeping consistent with
Augusta's existing NPDES permits and IPP program. Results of all industrial sampling
and testing shall be made available to Owner upon request.
2.31 Provide 24-hour per day access to Project for Owner's personnel. Visits may be made at
any time by any of Owner's employees so designated by Owner's Representative. Keys
for the Project shall be provided Owner by ESG. All visitors to the Project shall comply
with ESG's operating and safety procedures.
2.32 Acknowledge that under Georgia law its records, accounts, operating records, documents,
spreadsheets and all correspondence relating to the Scope of Services, and other
documentation pertaining to the Scope of Services may be public records subject to
Georgia's Open Records Act (O.C.G.A. & 50-18-70, et seq.). ESG agrees to deliver
immediately to Augusta's Designated Representative any request made to ESG under
Georgia Open Records Act and to cooperate fully in responding to any request made to
either Owner or ESG and making all records, not exempt, available for inspection and
copying as provided by Georgia Law.
2.33 Provide Owner a statement of annual operating expenses prepared by ESG's external
auditor within one hundred twenty (120) days of year end (April 30th) with the auditor to
perform an agreed upon procedure certifying that expenses and fees are calculated in
accordance with this Agreement. This statement shall be prepared in accordance with
generally accepted accounting principles.
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2.34 Submit a written report to Owner's Designated Representative outlining the complete
details of any incidents of violations of Local Regulations, environmental requirements,
or an employee behavior resulting in a complaint from the public.
2.35 Provide Owner with a copy of ESG's Employee Manual and make every effort to
conform to guidelines contained within said manual.
2.36 Provide Owner with a copy of ESG's site-specific Emergency Response Plan and Safety
Plan.
2.37 Perform other services that are incidental to, but not included in, the Scope of Services as
directed by Augusta. Such services will be invoiced to Augusta based upon a mutual
agreement between Augusta and ESG regarding scope and fee.
3. SCOPE OF SERVICE - AUGUSTA
Augusta shall:
3.1 Pay all Capital Expenditures inclusive of owner-directed Capital Improvements.
3.2 Maintain all existing Project warranties, guarantees, easements, and licenses that have
been granted to Augusta.
3.3 Pay all property, franchise, or other taxes associated with the Project.
3.4 Provide ESG, within a reasonable time after a request by ESG, use at no cost of any piece
of Augusta's heavy equipment that is available so that ESG may discharge its obligations
under this Agreement in the most cost-effective manner. ESG shall not use or allow the
use of any of Augusta's heavy equipment under ESG's control by any person who is not
trained and qualified in the operation of the heavy equipment in question, including
licensing and certification, where appropriate. Such use may not be granted if Augusta
determines that removing the equipment from its normal activities for the time period
requested will be detrimental to Augusta's operations.
3.5 Provide all licenses and tags for vehicles owned by Augusta used in connection with the
Project.
3.6 Provide for ESG's use all vehicles, computers, copy machines, tools and equipment
currently owned by Augusta and in use at the Project, including the vehicles described in
Appendix D.
3.7 Pay directly to the vendors or suppliers the following Project costs:
3.7.A All electrical power costs associated with the Project.
3.7.B All potable water costs associated with the Project.
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3.8 Pay ESG the amount specified in Article 4.1 to operate the Project.
3.9 Provide access to Augusta's computerized maintenance management system.
3.10 Carry out enforcement of the IPP, in accordance with State and EP A requirements
including issuance of Notices of Violation (NOVs). Further, issue Significant Industrial
User (SID) permits which meet all State and EPA requirements. Permits shall be
prepared for Owner issuance by ESG per historical precedence.
4. COMPENSATION
4.1 Augusta shall pay to ESG a base fee equal to the Augusta budget shown in Appendix F.
This includes the actual cost of the Scope of Services performed by ESG plus a
Management and Administrative Fee. The base fee shall not include services which are
not specifically defined by Section 2 of this Agreement. The base fee for the initial term
of this Agreement shall be Four Million, Seven Hundred Fifteen Thousand, Two Hundred
Thiry Four Dollars ($4,715,234.00) and the Management and Administrative Fee shall be
Five Hundred Eighty Nine Thousand, Four Hundred Four Dollars and Twenty Five Cents
($589,404.25). The base fee and the Management and Administrative Fee shall be
payable in advance in equal monthly installments and for the initial term of this
Agreement the monthly amount shall be Four Hundred Forty Two Thousand, Fifty Three
Dollars and Nineteen Cents ($442,053.19). Said base fee shall be for the period
beginning on January 1St, 2010 and ending on December 31St, 2010. Thereafter, the Base
Fee will be negotiated as described in Article 4.2. The Management and Administrative
Fee shall increase proportionally with the base fee adjustments described in Articles 4.2
and 4.4.
4.2 The parties agree that the base fee represents an estimate of the cost of providing the
Scope of Services for the Contract Year in question. In the event actual expenditures are
projected to exceed the established base fee for a Contract Year by more than Twenty
Thousand Dollars ($20,000.00) the approval of Augusta of such costs shall be required.
ESG shall notify Augusta in writing as soon as trend of actual costs provides a reasonable
indication that the actual costs may exceed annual budget. ESG shall not exceed the
Augusta budget shown in Appendix F without written authorization from Augusta's
Designated Representative. The Management and Administrative Fee will not be applied
to any amounts in excess of the base fee in any contract year without prior approval of
Augusta.
ESG shall perform a reconciliation of estimated to actual cost attributable to the
performance of the Scope of Services on a quarterly basis and submit the reconciliation to
Augusta within thirty days following the conclusion of the quarter. A year-end
reconciliation shall be performed by ESG following ESG's annual audit and submitted to
Augusta within one hundred twenty days of the conclusion of the Contract Year in
question. Any difference due to Augusta will be paid within thirty days of the submission
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of the reconciliation by ESG. Augusta will pay ESG any amount due within 21 days of
final Augusta-Richmond County Commission approval.
The base fee shall be negotiated and agreed each year not less than three (3) months prior
to the beginning of each subsequent Contract Year. An increase or decrease in the annual
base fee may be based upon legal or regulatory changes that relate to the operation of the
Project, regulatory reporting or monitoring requirements, treatment level requirements
and personnel qualifications for staffing requirements. In the event Augusta and ESG fail
to agree, the base fee will be determined by the application of the base fee adjustment
formula shown in Appendix E which is incorporated by reference and made a part hereof.
ESG shall provide Augusta written notice no later than September 1 st of each Contract
Year to initiate the negotiation process.
4.3 A Management And Administrative Fee of 12.5% shall be added to all costs with the
exception of costs resulting from the providing of unrelated services as may be directed
by Augusta pursuant to Paragraph 2.37, Owner Directed Capital Improvement costs as
provided by Paragraph 2.29. It is specifically understood that the Management and
Administrative Fee is included in the calculation of the annual base fee. The
Management and Administrative Fee shall include all charges for personnel not assigned
to the Project on a full time basis (those working in Augusta, Georgia, and approved as
part of the Project budget). ESG support is included in the Management and
Administrative Fee, and any request for additional support is to be made to Augusta.
From time to time ESG may seek approval from Augusta for additional ESG staff as
necessary to fulfill ESG's contractual obligations or in response to Augusta's request for
additional services.
4.4 ESG's compensation for Owner-Directed Capital Improvements shall be as follows: (1)
programs undertaken by ESG personnel shall be subject to mutually agreeable terms and
conditions of compensation and payment; (2) programs which ESG assigns to
subcontractor personnel shall be billed at cost plus a fee of five percent of direct costs in
lieu of the Management and Administrative Fee. On-site labor already covered under this
Agreement shall not be billed against the Owner-Directed Capital Improvements account.
The total annual compensation limit for Owner-Directed Capital Improvements for each
year ofthis Agreement shall be as defined in 2.29. The costs for Owner-Directed Capital
Improvements are not included in the annual base fee.
4.5 In the event a change in the scope of services becomes necessary as a result of ESG's
obligations under Section 2, Augusta and ESG will negotiate a commensurate adjustment
in base fee.
5. PAYMENT OF COMPENSATION
5.1 One-twelfth (1112) of the base fee, the Management and Administration Fee for the initial
year and each subsequent Contract Year shall be due and payable on the first day of the
month for each month that services are provided, assuming that the Augusta
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Representative receives an accurate and payable invoice by the 15th of the previous
month.
5.2 All other compensation in addition to the monthly base fee, Management Fee and
Administrative Fee is due on receipt of ESG's invoice and payable within thirty (30)
days; provided, however, Augusta may contest any such invoice in the exercise of good
faith, and may delay payment of sums that are being contested.
6. INDEMNITY, LIABILITY AND INSURANCE
6.1 ESG hereby agrees to and shall hold Augusta and its agents, assigns, officers and
employees, harmless from any liability or damages for property damage or bodily injury,
including death, which may arise from ESG's negligent operations, willful misconduct or
material breach of contract under this Agreement, to the proportion such negligence,
willful misconduct or material breach of contract contributed to the damages, injury, or
loss. Augusta, to the extent allowed by law, agrees to and shall hold ESG harmless from
any liability or damages for property damage or bodily injury, including death, which
may arise from Augusta's negligence to the proportion such negligence contributed to the
damages, injury or loss.
6.2 In any Contract Year, ESG shall be liable for those fines or civil penalties to a maximum
aggregate of Five Hundred Thousand Dollars ($500,000) for the Contract Year in
question, which may be imposed by a regulatory agency having jurisdiction for violations
of the effluent quality requirements specified in Article 2.1 or which result from the
failure to comply with the terms and conditions of any duly authorized permit, court
order, administrative order, law statute or ordinance, that are a result of ESG's negligent
operation. Augusta will assist ESG to contest any such fines in administrative
proceedings and/or in court prior to any payment by ESG. ESG shall pay the costs of
contesting any such fines.
6.3 ESG's liability to Augusta under this Agreement specifically excludes any and all
indirect or consequential damages arising from the operation, maintenance, and
management of Project. However, in the event the indirect or consequential damages
incurred are the direct result of ESG' s sole negligence or material breach of the terms of
this Agreement this exclusion shall not be applicable. Augusta's liability to ESG under
this Agreement specifically excludes any and all indirect or consequential damages
arising from Augusta's negligence.
6.4 ESG and Augusta recognize that existing conditions within the sanitary sewer collection
system vary and that failures may occur in the system over time. ESG's scope of work is
limited to operation and maintenance of Augusta's two wastewater treatment facilities
and one pumping station. Augusta is responsible for maintenance of free-flowing
conditions within the collection system and to clean the sanitary collection system as
needed over the course of this Agreement. ESG shall be responsible only for injury,
property damage or economic loss that was caused by ESG's negligence or willful
misconduct. Furthermore, Augusta, to the extent allowed by law, agrees to indemnify
Page 13 of23
ESG against such claims for injury, property damage, or economic loss arising from
failures in the sanitary collection system unless such claims are caused by ESG's
negligence, willful misconduct or material breach by ESG of its obligations pursuant to
the terms of this Agreement. This Article takes precedence over any conflicting Article
of this Agreement, and extends to ESG, its officers, employees, and subcontractors.
6.5 ESG shall obtain and maintain during the term of this Agreement insurance coverage of
the type and in the amounts described in Appendix C which is incorporated by reference
and made a part hereof. Augusta shall be named as an additional insured on each policy
of insurance. ESG shall provide to Augusta a certificate evidencing such insurance upon
execution of this Agreement and as may be requested by Augusta during the term of this
Agreement.
6.6 It is understood and agreed that, in seeking the services of ESG under this Agreement,
Augusta is requesting ESG to undertake uninsurable obligations for Augusta's benefit
involving the presence or potential presence of hazardous substances. Therefore,
Augusta, to the extent allowed by law. agrees to hold harmless, indemnify, and defend
ESG from and against any and all claims, losses, damages, liability, and costs including,
but not limited to, costs of defense arising out of or in any way connected with the
presence, discharge, release, or escape of contaminants of any kind, excepting only such
liability as may arise out of the sole negligence, willful misconduct or breach of contract
of ESG in the performance of services under this Agreement.
7. TERM AND TERMINATION; DEFAULT REMEDIES
7.1 The initial term of this Agreement shall be five (5) years commencing on January 1St,
2010. Thereafter, this Agreement may be renewed by Augusta for successive five (5)
year terms subject to the mutual agreement of the parties to the terms and conditions of
such renewal.
7.2 Notwithstanding the other terms and conditions set forth herein Augusta and ESG
maintain the right to terminate this Agreement for the following reasons:
a) ESG management is not performing satisfactorily, and reasonable efforts are not
being made on ESG's behalf to correct the problem. If reasonable efforts have not
been initiated by ESG and reported to Augusta in writing by ESG within 45 days of
ESG's receipt of written notice from Augusta specifying the performance for which
Augusta is dissatisfied, Augusta may terminate this Agreement by providing 15 days
written notice to ESG of termination and the basis thereof.
b) Sufficient documentation is provided to ESG not less than 120 days prior to the close
of any fiscal year of Augusta, that Augusta will be unable financially, due to
budgetary constraints, to continue the services provided by ESG under the terms of
this Agreement in the forthcoming fiscal year of Augusta.
Page 14 of23
c) Owner may terminate this Agreement at any time after giving ESG four (4) months
notice of intent to terminate. Should Augusta exercise termination for convenience
on or before December 31 st, 2010, Augusta shall Pay ESG a lump sum payment of
$100,000.00 for demobilization and transition costs. This lump sum payment shall be
in addition to any other compensation due ESG under the terms of this Agreement as
of the effective date of the termination by Augusta. In the event Augusta terminates
this Agreement for convenience after December 31 st, 2010, ESG shall only be entitled
to compensation due under the terms of this Agreement as of the effective date of
termination by Augusta.
d) Upon a four (4) month written notice to Augusta, ESG may terminate this Agreement
for convenience.
7.3 Upon notice of termination by Augusta, ESG shall assist Augusta at a mutually agreeable
price for the purpose of assisting Augusta's resumption of the operation of the Project.
ESG will provide Augusta at the date of termination the quantities of chemicals shown in
Appendix D, which is incorporated by reference and made a part hereof. Augusta will
pay ESG for the cost of quantities in excess of the quantities shown in Appendix D. If
additional cost is incurred by ESG at request of Augusta, Augusta shall pay ESG such
cost in accordance with Article 5.2.
8. LABOR DISPUTES; FORCE MAJEURE
8.1 In the event activities by Augusta's or ESG's employee groups or unions cause a
disruption in ESG's ability to perform at the Project, Augusta, with ESG's assistance or
ESG, at its own option, may seek appropriate injunctive court orders. During any such
disruption, ESG shall operate the facilities on a best-efforts basis until any such
disruptions cease.
8.2 Neither party shall be liable for its failure to perform its obligations under this Agreement
if performance is made impractical, abnormally difficult, or abnormally costly, as a result
of any unforeseen occurrence beyond its reasonable control. The party invoking this
Force Majeure clause shall notify the other party immediately by verbal communication
and in writing by certified mail of the nature and extent of the contingency within ten
(10) working days after its occurrence.
9. MISCELLANEOUS
9.1 Augusta and ESG agree that ESG is an independent contractor and not an employee or
agent of Augusta. ESG shall have exclusive control of and the exclusive right to control
the details of the services and work performed hereunder, and nothing herein shall be
construed as creating a partnership, agency, joint venture or other similar relationship
between ESG and Augusta. ESG agrees that it will not represent to anyone that its
relationship with Augusta is other than that of an independent contractor.
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9.2 Augusta and ESG recognize that the environment of Augusta, specifically its rivers,
springs, bays and estuaries, are a vital part of the fragile environment and economy of
Augusta and that Augusta has long been dependent on same for industry, tourism and its
economy. Therefore, it is imperative that the parties continue protection of the
environment foremost in all their action under this Agreement at all times.
9.3 In the event a civil action is initiated by either party to this Agreement concerning a
claim, a dispute, or the enforcement of the terms of this Agreement said action shall be
brought in Augusta and ESG hereby submits to the jurisdiction and venue of said court.
The prevailing party in any such litigation shall be entitled to reasonable attorney fees
and costs.
Both parties indicate their approval of this Agreement by their signatures below.
Authorized signatures:
AUGUSTA, GEORGIA
By:
Daniel E. Groselle, Jr., PE, Principal
By: CS2~.(/
David S. Cope~er
Mayor
Date: j'z, ( {~ ( D1
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Date:
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Date Ivf III/! 1
Page 16 of23
Appendix A
DEFINITIONS
A.l The "Project" means all facilities, equipment, vehicles and grounds described in Appendix B and where
appropriate, in accordance with the terms of this Agreement, the management, operation, and maintenance
of such. As of the effective date of this Agreement the facilities are comprised of the James B. Messerly
WPCP ("Messerly"), the Spirit Creek WPCP ("Spirit Creek") and the Spirit Creek Pump Station.
A.2 "Capital Expenditures" means any expenditures for (1) the purchase of new equipment or facility items that
cost Five Thousand Dollars ($5,000.00) or more; or (2) major repairs that significantly extend equipment or
facility service life and cost Five Thousand Dollars ($5,000.00) or more; or (3) expenditures that are
planned, non-routine, and budgeted by Owner.
A.3 "Cost" means the total of costs for the scope of work defined by this Agreement as determined on an
accrual basis in accordance with generally accepted accounting principles, including but not limited to
direct labor, labor overhead, chemicals, materials, supplies, utilities, equipment, maintenance, repair, and
outside services.
A.4 "Maintenance" means the cost ofthose routine and/or repetitive activities required or recommended by the
equipment or facility manufacturer or ESG to maximize the service life of the equipment, sewer, vehicles,
and facility.
A.5 "Repairs" means the cost of those nonroutine/nonrepetitive activities required for operational continuity,
safety, and performance generally resulting from failure or to avert a failure of the equipment, sewer,
vehicle, or facility or some component thereof.
A.6 "Biologically Toxic Substances" means any substance or combination of substances contained in the plant
influent in sufficiently high concentrations so as to interfere with the biological processes necessary for the
removal of the organic and chemical constituents of the wastewater required to meet the discharge
requirements of Augusta's NPDES permit. Biologically toxic substances include but are not limited to
heavy metals, phenols, cyanides, pesticides, and herbicides.
A.7 "Adequate Nutrients" means plant influent nitrogen, phosphorous, and iron contents proportional to BODS
in the ratio of five (5) parts nitrogen, one (1) part phosphorous, and one-half (0.5) part iron for each one
hundred (100) parts BODS.
A.8 "Contract Year" means each year subsequent to the initial year of January IS" 2010 through December 31 s"
2010, for which this Agreement is in effect.
A.9 "Fiscal Year" shall mean for Augusta that period beginning any January I and ending the next following
December 31.
A.I0 "Augusta's Designated Representative" shall mean Assistant Director for Wastewater Treatment.
Page 17 of23
Appendix B
WASTEWATER PROJECT CHARACTERISTICS
NPDES PERMIT AND PROJECT CHARACTERISTICS
B.l ESG will operate Project so that effluent will meet the requirement ofNPDES Permits No. GA0037621 and
GA0047147 (copies attached). ESG shall be responsible for meeting the effluent quality requirements of
Augusta's NPDES permit unless one or more of the following occurs; (1) the Project influent does not
contain Adequate Nutrients to support operation of Project biological processes and/or contains
Biologically Toxic Substances that cannot be removed by the existing process and facilities; (2) dischargers
into Augusta's sewer system violate any or all regulations as stated in the Water and Sewer Ordinance; (3)
the flow, influent BOD5, suspended solids and/or ammonia loading exceeds the Project design parameters
for the WWTP facility, which are million gallons of flow per day, pounds of BOD5 per day, pounds of
suspended solids, pounds of ammonia, and a daily peaking factor of times flow.
Define Maximum Month Average Daily Values for:
JB Messerly WPCP
46.1 mgd
90,000Ibs/day
90,000Ibs/day
8000 Ibs/day
1.5
Flow, MGD
Influent BOD, Lbs/Day
Influent TSS, Lbs/Day
Influent Ammonia, Lbs/Day
Daily Hydraulic Peaking Factor
Spirit Creek WPCP
2.24 mgd
4200 Ibs/day
4200 Ibs/day
375 Ibs/day
1.5
B.2 In the event of permit violation and anyone of the Project influent characteristics, suspended solids, BOD5,
ammonia, or flow, exceeds the design parameters stated above, ESG shall return the plant effluent to the
characteristics required by the NPDES permit in accordance with the following schedule after Project
influent characteristics return to within design parameters.
Characteristics Exceeding
Design Parameters By
Recovery Period
Maximum
10% or Less
Above 10% Less than 20%
20% and Above
5 days
10 days
30 days
Not withstanding the above schedule, if the failure to meet effluent quality limitations is caused by the
presence of Biologically Toxic Substances or the lack of Adequate Nutrients in the influent, then ESG will
have a thirty (30) day recovery period after the influent is free from said substances or contains Adequate
Nutrients.
B.3 ESG shall not be responsible for fines or legal action as a result of discharge violations within the period
that influent exceeds design parameters, does not contain Adequate Nutrients, contains Biologically Toxic
Substances, and the subsequent recovery period.
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Appendix C
INSURANCE COVERAGE
ESG shall maintain:
1. Statutory workers' compensation for all of ESG's employees at the Project as required by the State of
Georgia.
2. Comprehensive general liability insurance in a minimum amount not less than Five Million Dollars
($5,000,000.00) combined single limits for bodily injury and/or property damage.
3. Property damage and liability insurance in a minimum amount not less than One Million Dollars
($1,000,000.00) for all vehicles owned and operated by ESG under this Agreement.
4. Contractor's Pollution Liability insurance for pollution events arising from operation ofthe Project in a
minimum amount of not less than Two Million Dollars ($2,000,000.00) per claim and in the aggregate.
Page 19 of23
Appendix D
DESCRIPTION OF FACILITIES AND INVENTORY OF CHEMICALS,
LUBRICANTS, & EQUIPMENT
DESCRIPTION OF FACILITIES:
The Facilities shall include all of the following, in existence as of the commencement date
hereof:
James B. Messerly WPCP 46.1 MCG advanced secondary treatment facility followed by
a 360 acre constructed treatment wetland.
Spirit Creek WPCP 2.24 MGD aerated lagoon facility employing parallel treatment
trains.
Spirit Creek Pump Station located adjacent to the Spirit Creek WPCP.
INVENTORY OF CHEMICALS. LUBRICANTS & EQUIPMENT:
----To be completed on January 1,2010-----
Page 20 of23
Appendix E
BASE FEE ADJUSTMENT FORMULA
BF = BFa x C/Co
Where:
BFa
Base fee specified in Article 4.1 for previous contract year
BF
Adjusted base fee
Co
CPI for All Urban Consumers (U,S. City Average) as published by U.S. Department of
Labor, Bureau of Labor Statistics in the CPI Detailed Report for the month three (3)
months prior to ESG beginning service of previous year under this Agreement
C
CPI for All Urban Consumers (U,S. City Average) as published by U,S. Department of
Labor, Bureau of Labor Statistics in the CPI Detailed Report for the month three (3)
months prior to the beginning of the period for which an adjusted base fee is being
calculated
Page 21 of23
Appendix F
2010 Project Budget and Staffing Plan
Project Budget
PERSONNEL SERVICES $ 1,926,234.00
ADMINISTRATIVE EXPENSES 119,000.00
UTILITIES 96,000.00
CHEMICALS 399,000.00
MATERIALS & SUPPLIES 110,000.00
VEHICLES & EQUIPMENT 125,000.00
OUTSIDE SERVICES 285,000.00
BIOSOLIDS MANAGEMENT 1,105,000.00
MAINTENANCE & REPAIR 300,000.00
TOTAL OPERATING BUDGET $ 4,465,234.00
MANAGEMENT & ADMINISTRATIVE FEE
(12.5%) 558,154.25
CONTRACTOR'S SUBTOTAL $ 5,023,388.25
DIRECTOR'S ALLOWANCE $ 250,000.00
MANAGEMENT & ADMINISTRATIVE FEE
(12.5%) 31,250.00
DIRECTOR'S ALLOWANCE SUBTOTAL 281,250.00
TOTAL 2010 BUDGET $ 5,304,638.25
Page 22 of 23
Appendix F (Continued)
2010 Project Budget and Staffing Plan
Project Staffing Plan
Bud2eted Position
Bud2eted Number
Project Director 1
Assistant Project Manager 1
Lab/IPP Manager 1
Maintenance Manager 1
Land Application Manager 1
Operators 10
Lab Analysts 2
IPP Technicians 3
Mechanics 8
Maintenance Support 3
Administrative 1
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