HomeMy WebLinkAboutResolution 2016-108 N.C.S. 07/11/2016Resolution No. 2016-108 N.C.S.
of the City of Petaluma, California
RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE
A REIMBURSEMENT AGREEMENT WITH KAISER PERMANENTE
FOR THE RECYCLED WATER SYSTEM EXTENSION PROJECT
— OAKMEAD BUSINESS PARK PHASE 1 PROJECT
WHEREAS, the City of Petaluma General Plan 2025 recognizes the use of recycled
water as a potable water offset and to meet regulatory requirements for wastewater discharge;
and
WHEREAS, the City of Petaluma desires to expand its recycled water system to reduce
wastewater discharges and provide additional potable water offset; and
WHEREAS, on November 3, 2008, the Council, by Resolution 2008-206 N.C.S.,
certified the Program Environmental Impact Report for the Water Recycling Expansion Program
of which this project is conceptually included and therefore CEQA compliant; and
WHEREAS, the Recycled Water System Extension — Oakmead Business Park Phase 1
project is part of the updated Recycled Water System Master Plan as presented to City Council
on November 16, 2015; and
WHEREAS, the City successfully negotiated a Reimbursement Agreement with Kaiser
Permanente to fund sixty-five percent of the construction cost for the Recycled Water System
Extension— Oakmead Business Park Phase 1 Project; and
WHEREAS, the necessary funds are available in the 2016/2017 CIP Wastewater Capital
Funds.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Petaluma hereby approves and authorizes the City Manager to execute the Reimbursement
Agreement attached hereto as Exhibit A with Kaiser Permanente for sixty —five percent of the
construction costs of the Recycled Water System Extension — Oakmead Business Park Phase 1
Project, with a not to exceed amount of $400,000.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the
Council of the City of Petaluma at a Regular meeting on the l lth day of July, 2016,
by the following vote:
AYES:
Albertson, Mayor Glass, Healy, Kearney
NOES:
None
ABSENT:
Barrett, Vice Mayor King, Miller
ABSTAIN:
None
ATTEST:
City Clerk
Mayor
Approved as to
qr '
, Z
AssistanrYCity Attorney
Resolution No. 2016-108 N.C.S. Page 1
Exhibit A
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (:`Agreement") is made this 5th day of MIm, by and between the
City of Petaluma, a municipal corporation and Charter City (`;City") and Kaiser Permanente ("1C;nisc►=').
RECITALS
This Agreement is made with respect to the 1-61lowing facts:
A. Kaiser desires to extend recycled water service for landscaping purposes to the Kaiser lacility
located at 3900 Lakeville 1 hvy, Petaluma CA("Kaiser Facility").
B. The City owns and operates all existing recycled water pipeline a reasonable distance from
said facility.
C. Cite is willing to construct an extension of the recycled water pipeline from the current
terminus at Cypress Drive to the Kaiser facilify as sliown on I-:xhibit A (referred to herein as
"Project"), wbich wotild provide recycled water service to Kaiser and other potential future
customers provided Kaiser pays for its fair share of construction of the Project.
D. Kaiser is willing to pay for its fair share of the cost of construction of the Project.
AGREEMENT
NOW, THEREFORL-;, in consideration orthe following mutual promises and agreements, City
and Kaiser agree as follows:
L Incorporation of Recitals.
The parties agree that the Recitals constitute the factual basis upon w1licl7 tine City and Kaiser have
entered into this Agreement. The City and Kaiser each acknowledge the accuracy of the Recitals and
agree that the Recitals are incorporated into this Agreement as though lolly set Forth at length.
2. I-esigt
2.1. The City shall provide the desig►► services For the Project, which includes providing design
services that nnav result from or be caused by a change order during construction of the
Project. Payment of all costs for design services shall be the sole responsibility of the City,
2,2. The City reserves the right, in its sole discretion, to amend the scope of work for the design
services for the Project as it deems necessary and appropriate where such amendments are
reasonably necessary, as determined in the City's sole and reasonable discretion,
3. Construction.
3.1. Bidding: The City sbajl bid const•uetion of the I'Mc�ject pursuant to applicable state and local
regulations. Upon opening of the bids pursuant to applicable procedures, the City shall
promptly notify Kaiser of the costs of the bids, as well as staff's recommendation for award
of the const•uetion contract ("Staffs Recommendation").
Resolution No. 2016-108 N.C.S. Page 2
Reimbursement Agreement pa►„e 2
3.2. Award oIContract. `t he City reserves the right to reject all bids. If tate Cite decides to award
it contract for construction of the Project, such award shall be to the lowest, responsive,
responsible bidder as determined by the City Council in accordance with applicable state and
local law ("CO
3.3. Construction: The City agrees to be solely responsible for managing and inspecting
construction of the Project. In the City's sole discretion, the City may issue change orders to
the Contractor'
3.4. Payment:
3.4. I .The City shall pay the Contractor for all worked perfonped ("Paid Amount") as
required by the terms and conditions of the agreement between the City and the
Contractor ("Consh-action Contract"), as may be amended by the City and the
Contractor through change orders and applicable law.
)A.2.haiscr agrees that it shall reimburse the Cite for sixty -live percent (65%) of the Paid
Amount in a total amount not to exceed $400,000.00 (four Ifundred Thousand Dollars),
City may invoice Kaiser for partial payments of the Amount Paid, in which Kaiser
agrees to pay said invoice within ninety (90) days.
3.43.Kaiser agrees to cooperate in good faith with the City and Contractor.
4. Deliver y of Recycled Water. The City shall not be obligated to deliver recycicd water unless and
until Kaiser fultills its obligations under Section 3.4 of this Agreement and executes a Recycled
Water Services Agrcentent with the City. Upon such execution of'a Recycled Water Services
Agreement betwecn Kaiser and the City, the parties' recycled water delivery rights and
obligations will be solely as provided in such agreement.
5. Term of Agreement and Termination
5.1. The term ofthis Agreement shall commence on the date of execution orthis Agreement and
Continue until the parties have fulfilled their responsibilities or this Agreement is terminated
pursuant to this paragraph.
5.2. City 'Termination:
5.2.I .The City may terminate this Agreement upon written notice at any time, with or without
cause, provided Kaiser has not made any payment, whether whole or partial, as required
under this Agreement,
5.2.2. 1 he City may terminate this Agreement for cause ulaon failure of Kaiser to satisfy its
obligations under Section 3.4 of this Agreement regardless ofwhether or not Kaiser has
made any payment as reduired under this Agreement.
5.3. Kaiser Termination: if the proposed cost for Staffs 1Zeconurnendation exceeds $615,000,
upon providing written notice at least 72 hours prior to the City Council awarding the
Construction Contract, Kaiser may terminate this Agreement. If the prq�lcct is not awarded
by City Council by July I, 2017, Kaiser may terminate this Agreement by written notice.
Kaiser may not unilaterally terminate this Agreement once the City Council awards the
Contract.
6. Nonwaiver of Rigl,its or Rcm«lics.
Resolution No, 2016-108 N.C.S. Page 3
Reinibursemeut Agrcen►cr►t Pate 3
The Iailure 01'a party to exercise any one or more of its rights or remedies under this Agreement shall not
constitute a waiver of that party's right to enforce that right or seek that remedy in the finure. No course
of conduct or act of forbearance on any one or more occasions by any party to this Agreement shall
preclude that party from asserting any right to remedy available to it in the future, No course of conduct
or act of forbearance on any o►le or more occasions shall be deemed to be an implied modification of the
terms of this Agreement.
7. Assignability,
This Agreement may not be assigned by either party without the prior and express written consent of' tile
other party, which consent shall not lie unreasonably withheld. In determining whether to approve a
t'equest by Kaiser to assign this Agreement, the City may consider, among other things, the proposed
assignee's financial status and commitment to the Project. Any attempted assignment ofthis Agreement
not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or
benefits upon the assignee.
8. No Oral Modifications.
This Agreement represents the entire understanding of the City and Kaiser and supersedes all other prior
or contemporaneous writle►t or oral agreements petlaining to the subject matter of this Agreement. This
Agreement may be modified only in writing signed by the authorized representatives of both the City and
Kaiser.
9. Binding UT)on Successot-s.
This Agreement and each of its terms shall be binding upon the City, Kaiser and their respective officers,
elected officials, employees, assents, contractors, and permitted successors and assigns.
10. Attornevs' fees.
In the event that any action or proceeding, including arbitration, is commenced by either the City or
Kaiser against the other to establish the validity ofthis Agreement or to enforce any one or more of its
terms, tale prevailing party in any such action or proceeding shrill be entitled to recover From the other, in
addition to all odtcr legal aid equitable remedies available to it, its actual attorneys' fees and costs of
litigation, including, without limitation, filing lees, service tees, deposition costs, arbitration ofcosts and
expert witness Ices, including actual costs and attorneys' tees on appeal.
11. Jurisdiction and Venue.
This Agreement is executed and is to be performed in the City of" Petaluma, and any action or proceeding
brought relative to this Agreement shall be heard in the appropriate cOurt in the County of Sonm
oa,
California, The City and Kaiser each consent to the personal jurisdiction of the court in tiny such action
or proceeding.
12. Time is oldie Essence.
Except as Otherwise expressly stated, time is ofthe essence in the performance ofeach and every action
required pursuanl to this Agreement.
13. Covenant Of Further Assurances,
Resolution No. 2016-108 N.C.S. Page 4
Reimbursement Agreement _ _ Page 4
The City and Kaiser shall tale all other actions and execute all other documents, which are reasonably
accessary to efTectuate this Agreement.
14. II nt�mretation.
14.1. The City and Kaiser agree that this Agreement is the product of mutual negotiations and
is all arms -length transaction. Each party has negotiated this Agreement with the advice and
assistance of legal counsel of its own el(oosing.
14.2. It is further agreed that the terms of this Agreement shall be construed in accordance with
the nlea►aing of the 1►urgnage and shall not be construed for or against either party by reason
ofauthorship and the rule that ambiguities in a document shall he construed against the
draiier of the document shall have no application to this Agreement. In construhrg and
interpreting this Agreement, the tinder of iFrct shall give effect to the mutual intention ol'thc
City and Kaiser, notwithstanding such ambiguity, and may refer to the facts and
circumstances under which this such
is made and such other CXtraneous evidence as
may assist the finder of fact in ascertaining the intent of the City and Kaiser.
15. Scvcrability.
Wally term or provision of this Agreement is round to be invalid or unenforceable, the City and Kaiser
both agree that they would have executed this Agreement notwithstanding the invalidity oi'such term or
provision. the invalid tenn or provision may be severed from the Agreement and the remainder ofthe
Agreement may be enforced in its entirety.
16. l-leadin �s.
The headings oreach section ofthis Agreement are For the purposes ofconveil ience only and shall not he
construed to either expand or limit the express terms and language of each section.
17. Representations of Authority.
Each party signing (Itis Agreement on behalf ofa party which is not a natural person hereby represents
and warrants to the other party that all necessary Icgal prerequisites to that party's execution of this
Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the
party on whose behalf he or she signs.
18. Notices.
Notices required under this Agreement shall be sent to the following:
If to the City: City of Petaluma
Atto: Larry Zimmer, Deputy Director Public Works and Utilities
202 N. Mc Dowell boulevard
Petaluma, CA 91954
Ifto Kaiser: Kaiser Fotmdation Hospitals
Attn: Jodie Clay, LISA Capital Projects 'Ream Manager
100 Snaith Ranch Road, Suite 200
San Rafael, CA 94903
Resolution No. 2016-108 N.C.S. Page 5
Reimbursement Agreement Page 5
Notices given pwSuant to this Agreement shall be deemed received as follows;
If'sent by United States Mail - live (5) calendar days after deposit
into the United States Mail, first class postage prepaid.
If by express courier service or hand delivery — on the date of receipt by the receiving party,
The addresses to notices set forth in this section may be changed upon written notice of such
change to either the City or Kaiser, as appropriate.
Dated:
AT"ITST:
Claire Cooper, City Clerk
APPROVED AS TO FORM:
City Attorney
('I TY OF 1)E1'ALtJNIA
A Charter City (the "City")
lay:
Dated x:;S KAISER I'I_ RMANTE
By <1��
'^ t t�l/'YTd� t,)Er-is
APPROVED AS TO FORM:
Legal Counsel for Kaiser Permanente
Resolution No. 2016-108 N.C.S. Page 6