HomeMy WebLinkAboutStaff Report 4.E 05/07/2018LU�
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DATE: May 7, 2018
TO:
FROM
Honorable Mayor and Members of the City Council through City Manager
Dan St. Job, F'SCE — Director, Public Works & Utilities
Leah G. Walker, P.E. — Environmental Services Manager
SUBJECT: Resolution Authorizing the City Manager to Execute a Professional Services
Agreement with GHD, Inc. for Environmental Review and Permitting Services
for the Ellis Creek Water Recycling Facility and Water Recycling Program
RECOMMENDATION
It is recommended that the City Council adopt the attached Resolution Authorizing the City
Manager to Execute a Professional Services Agreement (PSA) with GHD, Inc. for
Environmental Review and Permitting Services for the Ellis Creek Water Recycling Facility and
Water Recycling Program.
BACKGROUND
The City's wastewater treatment and reuse facilities include the Ellis Creek Water Recycling
Facility (ECWRF), 155 acres of ponds with a capacity of 1,441 acre-feet (469 million gallons)
for oxidation and storage, disinfection facilities, an outfall pipe and outfall structure for
discharge to the Petaluma River, and a recycled water distribution system that provides service to
agricultural and urban customers. The ECWRF has been in operation since early 2009 and
currently processes an average dry weather daily flow of 4.5 million gallons per day. Recent
improvements at the facility include the addition of a second digester and related solids handling
equipment, and the Biomass to Biofuel (13213) project currently under construction that will
beneficially reuse biomethane to produce compressed natural gas for vehicle fuel. Several
improvements being planned for the future are in need of environmental services related to
specialized permitting and California Environmental Quality Act (CEQA) processes.
An example of such an improvement is the treated wastewater effluent discharge outfall pipeline
to the Petaluma River, which has deteriorated significantly, leading to a loss of capacity and the
potential for complete pipe failure. The outfall pipe runs through wetlands between the Chlorine
Facility on the southeast corner of the oxidation ponds to the River. The 3,200 -foot outfall,
constructed in the 1970's, is comprised of a 42 -inch diameter of "Techite" brand composite
fiberglass pipe. This material was popular for construction of water and wastewater facilities in
the 1970's due to its lightness and corrosion resistance. Unfortunately, the material has not held
up well. The City received permission from the Regional Water Quality Control Board (Water
Board) to use a temporary alternate outfall as needed while studies are conducted to determine
the best means to repair or replace the existing outfall pipe. Modernization of the Chlorine
Facility is also planned.
In addition, the City wants to offer recycled water to the areas around Frates and Adobe Roads to
the southeast of town. Existing agricultural irrigators have expressed an interest and the existing
piping and pumping infrastructure is adequate to expand in this direction. This will require an
addendum to the EIR that addresses the Water Recycling Program.
The Environmental Impact Report (EIR) for the ECWRF, referred to as the Water Recycling
Facility and River Access Improvements EIR — State Clearinghouse #2001052089, was certified
by the City of Petaluma in 2002. Minor changes made before and during construction of the
treatment plant facilities required four EIR Addenda dated April 2004, July 2005, February 2006,
and April 2007. Addendum Number 5 to the EIR was approved by the City in 2016 to include
the 13213 project and tertiary treatment expansion. Modifications or replacement of the failing
outfall pipe may require further addenda.
The EIR for the Water Recycling Expansion Program (WREP) (State Clearinghouse
#2007052146) was certified by the Council in 2008, Resolution 2008-206 N.C.S. An addendum
was approved in 2015 to expand the recycled -water service area boundaries and to adopt an
update to the EIR's Mitigation Monitoring Program.
DISCUSSION
The specialized nature of the proposed work requires experts in environmental analysis and
documentation to assure compliance with the CEQA and the various State and federal permits
required for the proposed improvements. For that reason, it is recommended that the original EIR
consulting team be retained because of their knowledge of the facility, and of the intricacy of the
environmental permitting requirements. It is recommended that the City retain GHD, Inc. to
perform the CEQA and permit services for the following project elements:
Outfall:
Replacement options are being evaluated for the river outfall pipeline, including complete
replacement of the pipe, construction of new discharge facilities at an alternate location, or a
combination of these alternatives. The depth of CEQA documentation and evaluation will
depend upon the replacement option selected, however in any case, CEQA documentation for the
replacement of the pipeline or addition of new outfall facilities could tier from the ECWRF EIR.
The range of potential CEQA documents could be an Addendum to the EIR for replacement of
the existing pipeline, a subsequent Mitigated Negative Declaration tiering from the EIR, or a
Supplemental to the EIR for establishing a new permanent discharge point. Technical reporting
needs would vary depending on the option.
PJ
The estimated consulting costs for assessing of CEQA and permitting needs is $20,290, and
supporting resource agency permitting is $58,830. Depending on the alternative selected, the
estimated cost of CEQA documentation would range from approximately $40,000 for an EIR
Addendum, up to $150,000 for a Supplemental EIR. GHD will not proceed with this task until
GHD and the City agree upon a specific scope of work, schedule, and budget; however,
authorization to include the EIR step in the PSA is sought.
Recvcled Water Pipeline:
Due to increased demand for recycled water by agricultural customers, a conceptual plan was
developed to extend recycled water pipelines to the area near Adobe and Frates Roads. Before
beginning detailed design, the proposed expansion must be evaluated to determine whether the
project is within the scope of the WREP EIR. The expansion will require permits and approvals
from resource agencies. The estimated consulting cost for CEQA documentation is $36,490,
while the cost for resource agency permits is $24,320.
Other Facilities:
GHD will provide environmental review and permitting assistance for additional projects
including the upgrade to the Chlorine Facility at the southeast comer of the oxidation ponds for
an estimated cost of $5,520, and relocation of employee parking because of the planned
expansion of tertiary recycled water treatment for an estimated cost $5,520. An optional
consulting task provides a contingency of $23,880 for on-call assistance that may arise. Project
management costs for the agreement are estimated at $10,750.
Due to the need to move swiftly on the outfall project and to build off of existing environmental
documents, a proposal was solicited from GHD Inc., an international firm providing professional
services in water, energy and resources, environment, property and buildings, and transportation
for the projects described. GHD staff from the Santa Rosa office have prepared all the
environmental documentation for the ECWRF and the WREP since the initial EIR in 2002 and
have retained significant knowledge and expertise in all relevant areas of the facility. Because of
GHD's background and competency in this area, no other firms were included in the request for
proposal process. Public Works and Utilities staff have worked with multiple environmental
firms for recycled water pipeline projects, wastewater pump stations, regulatory and
environmental permits, and regional recycled water studies. While other firms have provided
satisfactory service, GHD has the most detailed knowledge in the particular issues associated
with the ECWRF and the recycled water program, including special species habitat, wetlands
delineation, mitigation and permitting, and discharge impacts on the Petaluma River. Experience
has shown that it is most cost effective and quickest to continue with one consultant in these
areas to avoid paying additional costs for conflicting advice and for the time for consultants to
become knowledgeable with the site and its issues. Based on the project needs and experience, a
team from the Engineering and the Environmental Services divisions recommended that GHD be
requested to submit a proposal. GHD's work on the outfall alternatives will coordinate with work
being done by Woodward & Curran, formerly RMC, to assist the City with water quality permits
from the Water Board. GHD staff are available to perform the required work and will not need
additional time to familiarize themselves with previous ECWRF environmental studies.
It is recommended that City Council approve the subject resolution to award a PSA to GHD, Inc.
for the described services for a total authorized contract amount of $335,600, including $311,720
for required tasks and $23,880 for an optional task. Compensation would be based on time and
materials as estimated in the attached PSA. Contingency services and outfall EIR preparation
will require signed authorization from the City based upon an agreed scope, schedule, and fee.
FINANCIAL IMPACTS
Funding for the agreement is included in the existing and proposed City Budgets and will be split
between multiple Capital Improvement Projects and wastewater operating budget accounts over
multiple fiscal years as summarized in the table below. There are sufficient funds within existing
and planned CIP and Operating budgets for the PSA expense.
Project
Outfall
Recycled Water
Chlorine Facility
Employee Parking
J Proj ect Management
Contingency
TOTALS
ATTACHMENTS
Environmental Permitting and CEQA Services PSA
Amounts Budgeted
Near Term Costs
Future
Total Costs
Costs
CIP C66501836
$
79,120
$40,000-
$229,120
$150,000
Operations 66500.54150
$
60,810
$ 60,810
Operations 66700.54150
$
5,520
$ 5,520
Operations: 66700-54150
$
5,520
$ 5,520
Prorated
$
10,750
$ 10,750
Prorated
$ 23,880
$ 23,880
Not to Exceed
$161,720
$173,880
$335,600
1. Resolution
2. Professional Services Agreement
11
Attachment 1
RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A
PROFESSIONAL SERVICES AGREEMENT WITH GHD, INC. FOR
ENVIRONMENTAL REVIEW AND PERMITTING SERVICES FOR THE ELLIS
CREEK WATER RECYCLING FACILITY AND WATER RECYCLING PROGRAM
WHEREAS, the City of Petaluma has assessed the condition of the existing wastewater
treatment, reuse and disposal facilities; and
WHEREAS, the City has determined that improvements are needed to the effluent
outfall pipeline and facilities, and other minor modifications are needed to the Ellis Creek Water
Recycling Facility (ECWRF) site; and
WHEREAS, the City certified the Environmental Impact Report (EIR) for the ECWRF
(referred to as the Water Recycling Facility and River Access Improvements EIR — State
Clearinghouse #2001052089) in 2002 as well as five EIR Addenda, dated April 2004, July 2005,
February 2006, April 2007, and January 2016; and
WHEREAS, the City desires to expand its recycled water system to reduce wastewater
discharges to the Petaluma River by providing additional recycled water for agricultural uses;
and
WHEREAS, continued agricultural reuse of recycled water will support compliance with
the requirements of the Regional Water Quality Control Board through disposal/ beneficial reuse
of City recycled water; and
WHEREAS, expanded agricultural reuse of recycled water will result in financial
benefits to the City through sale of recycled water; and,
WHEREAS, the City certified the Program EIR for the Water Recycling Expansion
Program (WREP) (State Clearinghouse #2007052146) in November 2008, as well as an
addendum dated December 2015; and
WHEREAS, the replacement or reconstruction of the City's wastewater river outfall
requires timely action and the environmental documentation and permitting for this project will
build off of existing environmental documents; and
WHEREAS, the City solicited and GHD, Inc., of Santa Rosa, California, submitted a
comprehensive and complete proposal, considered to be fair and reasonable, to perform the
requisite services needed to amend the existing EIR documents and support agency permitting
for the identified plant improvements; and
WHEREAS, GHD, Inc. has significant knowledge and expertise in all related areas of
the ECWRF facility including special species habitat and wetlands delineation, mitigation and
permitting, and the GHD staff preparing the EIR addendum has prepared all the environmental
documentation for the ECWRF since the initial EIR in 2002.
5
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Petaluma hereby authorizes the City Manager to Execute a Professional Services Agreement
(PSA) with GHD, Inc. for Environmental Review and Permitting Services for the Ellis Creek
Water Recycling Facility and Water Recycling Program for a total not -to -exceed estimate of
$335,600 to be billed on a time and material basis as estimated in the attached PSA.
M.
Attachment 2 - Exhibit A to Resolution
PROFESSIONAL SERVICES AGREEMENT
Environmental Review and Pennittina Services for the Ellis Creels Water Rcevelina Facility and
Water Reevclina Proaram
(Title of Project)
FY 18 Fund # Cost Center Object Code Project # C66501836 Amount $100,000
For multi-year contracts or contracts with multiple accounts:
FY 19 Fund # Cost Center Object Code Project # C66501836 Amount $129,120
FY 18 Fund # 6600 Cost Center 66500 Object Code 54150 Project # Amount $60.810
FY 18 Fund # 6600 Cost Center 66700 Object Code 54140 Project # Amount $15,000
FY 19 Fund # 6600 Cost Center 66700 Object Code 54140 Project# Amount $30,670
FY Fund # Cost Center Object Code Project # Amount $
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into and effective
as of , 20 ("Effective Date"), by and between the City of Petaluma, a
(city use only)
municipal corporation and a charter city ("City") and GHD, Inc., a ("Consultant")
(collectively, the "Parties").
WHEREAS, the Parties enter into this Agreement for the purpose of Consultant providing
professional services to City under the terms and conditions set forth herein.
THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties
agree as follows:
1. Services. Consultant shall provide the services as described in and in accordance with
the schedule set forth in Exhibit "A" attached hereto and incorporated herein
("Services").
2. Compensation; Business Tax Certificate.
A. For the full performance of the Services as described herein, City shall
compensate Consultant in accordance with the rates specified in Exhibit A.
B. Consultant shall submit detailed monthly invoices reflecting all services
performed during the preceding month, and including a revised schedule for
performance and additional documentation requested by City, as applicable.
C. Consultant shall be compensated for services in addition to those described in
Exhibit A, only if Consultant and City execute a written amendment to this
Agreement describing the additional services to be performed and the
compensation to be paid for such services. In no case shall the total compensation
under this Agreement exceed $335,600 without prior written authorization of the
City Manager. Further, no compensation for a section or work program
component attached with a specific budget shall be exceeded without prior written
authorization of the City Manager.
D. Notwithstanding any provision herein, Consultant shall not be paid any
compensation until such time as Consultant has on file with the City Finance
Department a current W-9 form available from the IRS website (www.irs.aov)
and has obtained a currently valid Petaluma business tax certificate.
1
PROFESSIONAL SERVICES AGREEMENT
(609321) Oct 2017
E. City's obligation to pay compensation to Consultant as provided herein is
contingent upon Consultant's performance of the Services pursuant to the terms
and conditions of this Agreement and any amendments thereto.
3. Term. The term of this Agreement commences on the Effective Date, and terminates on
June 30, 2020, unless sooner terminated in accordance with Section 4. Upon termination,
any and all of City's documents or materials provided to Consultant and any and all of
the documents or materials prepared for City or relating to the performance of the
Services, shall be delivered to the City as soon as possible, but not later than fourteen
(14) days after termination of the Agreement.
4. Termination. _City may terminate this Agreement without cause upon ten (10) days'
written notice. City may immediately terminate or suspend this Agreement for cause.
Cause for immediate termination or suspension shall include, but not be limited to, any
breach of this Agreement by Consultant or Consultant's bankruptcy or insolvency. Upon
receipt of notice of termination or suspension for cause, Consultant shall immediately
stop all work in progress under this Agreement. In the event of early termination of this
Agreement by City, Consultant shall be entitled to payment for all Services performed to
the date of termination to the extent such Services were performed to the satisfaction of
City in accordance with the terns and conditions of this Agreement. If City terminates
this Agreement for cause, Consultant shall be liable to City for any excess cost City
incurs for completion of the Services.
Consultant's Representation: Independent Contractor. Consultant represents that
Consultant possesses distinct professional skills in performing the Services. City has
relied upon said representation as a material inducement to enter into this Agreement.
Consultant shall, therefore, provide properly skilled professional and technical personnel
to perform all Services under this Agreement. It is expressly understood that Consultant
and its agents and employees, shall act in an independent capacity and as an independent
contractor and not as officers, employees or agents of City. This Agreement shall not be
construed as an agreement for employment.
6. Facilities and EauiDment. Consultant shall, at its sole cost and expense, furnish all
facilities and equipment that may be required for furnishing Services pursuant to this
Agreement. City shall furnish to Consultant no facilities or equipment, unless the City
otherwise agrees in writing to provide the same.
7. Licenses, Permits. Etc. Consultant shall, at Consultant's sole cost and expense, keep in
effect at all times during the term of this Agreement any licenses, permits or other such
approvals which are legally required for performing the Services.
8. Time. Consultant shall devote such time to the performance of the Services as may be
reasonably necessary for satisfactory perfoiniance of Consultant's obligations pursuant to
this Agreement.
9. Inspection. Consultant shall provide the City every reasonable opportunity to ascertain
that the Services are being performed in accordance with the requirements and intentions
of this Agreement. All work done and materials furnished, if any, shall be subject to
PROFESSIONAL SERVICES AGREEMENT
(609321) Oct 2017 8
inspection and approval by the City. The inspection of such work shall not relieve
Consultant of any of its obligations pursuant to this Agreement,
10. Progress Reports. Upon the City's request, Consultant shall provide, in a form
acceptable to City, written progress reports of all oral and written observations, opinions,
recommendations, analyses, progress and conclusions related to Consultant's
performance of the Services.
11. Confidentiality. In the course of Consultant's employment, Consultant may have access
to trade secrets and confidential information, disclosure of which is protected of limited
by law. Consultant shall not directly or indirectly disclose or use any such confidential
information, except as required for the performance of the Services.
12, Conflict of Interest. Consultant represents that it presently has no interest, and
covenants that it shall not acquire any interest, direct or indirect, financial or otherwise,
which would conflict in any manner or degree with the performance of the Services
hereunder. Consultant further covenants that, in the performance of this Agreement, it
shall not employ any subcontractor or person having such a conflict of interest.
Consultant represents that no one who has or will have any financial interest under the
Agreement is an officer or employee of City. If such conflict of interest arises during this
Agreement or any extension, Consultant will immediately advise City and City may, at
its sole discretion, immediately terminate this Agreement. Certain Consultants are
subject to the requirements, including the disclosure and reporting requirements, of the
City's Conflict of Interest Code adopted pursuant to the Political Reform Act, Such
Consultants subject to the City's Conflict of Interest Code include those whose work may
involve: making government decisions regarding approval or adoption of rates, rules, or
regulations, action on permits or other applications, authorization to enter into of modify
contracts, or approval of plans, designs, reports, or studies. Consultant agrees to comply
fully with all such requirements to the extent they apply to Consultant's performance of
the Services,
13. Consultant No Aaent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
14. Standard of Performance. Consultant shall perform all the Services in a manner
consistent with the standards of Consultant's profession. All instruments of service of
whatsoever nature, which Consultant delivers to City pursuant to this Agreement, shall be
prepared in a substantial, workmanlike manner and conforrm to the standards of
Consultant's profession. All such instruments of service shall become the sole and
exclusive property of City upon delivery of the same.
15. Assieninent/Transfer. No assignment or transfer in whole or in part of this Agreement
shall be made without the prior written consent of City,
16, Subcontractors, Consultant shall directly perform all Services, and shall not subcontract
any portion of performance of the Services without the prior written consent of City.
Any such subcontractors shall be required to comply, to the full extent applicable, with
PROFESSIONAL SERVICES AGREEMENT
(60932 1) Oct 2017 9
the terms and conditions of this Agreement, including but not limited to, procuring and
maintaining insurance coverage as required herein and which shall name City as an
additional insured.
17. Compliance With All Laws. Consultant shall fully comply with all applicable local,
state and federal rules, laws, regulations and ordinances pertaining to the performance of
the Services required hereunder, including but not limited to, the California Building
Standards Code as in effect in the City, the Americans with Disabilities Act, and any laws
and regulations related to any copyright, patent, trademark or other intellectual property
right involved in performance of the Services. Consultant's failure to comply with any
law(s) or regulation(s) applicable to the performance of the Services hereunder shall
constitute a material breach of this Agreement. To the extent that any other government
agency or entity provides compensation for any Services, Consultant shall comply with
all rules and regulations applicable to such fiscal assistance.
18, Living Wage Ordinance. Without limiting the foregoing Section 17, Consultant shall
comply fully with all applicable requirements of Petaluma Municipal Code, Chapter 8.3 6,
Living Wage (the "Living Wage Ordinance"), as the same may be amended from time to
time. Upon the City's request Consultant shall promptly provide to the City documents
and information verifying Consultant's compliance with the requirements of the Living
Wage Ordinance, and shall within fifteen (1 S) calendar days of the Effective Date of this
Agreement, notify each of its affected employees as to the amount of wages and time off
that are required to be provided to them pursuant to the Living Wage Ordinance. The
Acknowledgement and Certification Pursuant to City of Petaluma Living Wage
Ordinance, attached to this Agreement as Exhibit C, shall be a part of this Agreement for
all purposes, and Consultants that are subject to Living Wage Ordinance requirements, as
determined by the City, must provide a properly completed Exhibit C in accordance with
the requirements of the Living Wage Ordinance, Consultant's noncompliance with the
applicable requirements of the Living Wage Ordinance shall constitute cause for City's
termination of this Agreement pursuant to Section 4 hereof.
19. Discrimination. During the performance of this Agreement, Consultant shall not
discriminate against any employee or applicant for employment because of race, religion,
creed, color, national origin, ancestry, gender, sexual orientation, age or physical or
mental disability in violation of any applicable law.
20. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant
to this Agreement shall be made in writing, and sent to the Parties at their respective
addresses specified below or to such other address as a Party may designate by written
notice delivered to the other Party in accordance with this Section. All such notices shall
be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice shall be
deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to the
sender's account, in which case notice is effective on delivery if delivery is
confirmed by the delivery service; or
PROFESSIONAL SERVICES AGREEMENT
(60932 1) Oct 2017 10
(iv) facsimile transmission, in which case notice shall be deemed delivered upon
transmittal, provided that (a) a duplicate copy of the notice is promptly delivered
by first-class or certified mail or by overnight delivery, or (b) a transmission
report is generated reflecting the accurate transmission thereof. Any notice given
by facsimile shall be considered to have been received on the next business day if
it is received after 5:00 p.m. recipient's time or on a nonbusiness day.
City: city Clerk
City of Petaluma
Post Office Box 61
Petaluma, California 94953
Phone: (707) 778-4360
Fax: (707) 778-4554
Email: cityclerk&i.petaluma.ca.us
And:
Dan St. John, RASCE
Director, Public Works & Utilities,
202 N. McDowell Blvd.
Petaluma. CA 94954
Phone: 707-778-4546
Fax: 707-206-6034
Email-' DSTJOHM,ci.i)etaluma.ca,us
Consultant: Kristine Gaspar
GHD, Inc.
2235 Mercury Wav, Suite 150
Santa Rosa, CA 95407
Phone: 707523-1010
Fax: 707-5278679
Email: X fistine. Gawaraand. coin
21. Ownex•shin of Documents. All original papers, documents or computer material on disk
or microfilm and copies thereof, produced as a result of this Agreement, shall be the
property of City and may not be used by Consultant without the written consent of City.
Copies of such documents or papers shall not be disclosed to others without the written
consent of the City Manager or his or her designated representative.
22, Indemnification. To the maximum extent permitted by law, Consultant shall, at its oAqi
expense, indemnify, defend with counsel acceptable to the City, (which acceptance will
not be unreasonably withheld), and hold harmless City and its officers, officials,
employees, agents and volunteers ("Indemnitees") from and against any and all liability,
loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings,
regulatory proceedings, civil penalties and fines, expenses and costs (including, without
limitation, claims expenses, attorney's fees and costs and fees of litigation) (collectively,
"Liability") of every nature, whether actual, alleged or threatened, arising out of or in
connection with the Services or Consultant's failure to comply with any of the terms of
this Agreement, regardless of any fault or alleged fault of the Indemnitees.
PROFESSIONAL SERVICES AGREEMENT
(60932 1) Oct 2017
The Consultant's obligation to indetimify, defend and hold harmless under this provision
shall not be excused because of the Consultant's inability to evaluate Liability, or because
the Consultant evaluates Liability and determines that the Consultant is not or may not be
liable. The Consultant -must respond within 30 calendar days to any tender for defense
and indemnity by the City, unless the time for responding has been extended by an
authorized representative of the City in writing, If the Consultant fails to accept tender of
defense and indemnity within 30 calendar days, in addition to any other remedies
authorized by law, so much of the money due or that may become due the Consultant
tinder this Agreement as shall reasonably be considered necessary by the City, may be
retained by the City until disposition has been made of the matter subject to tender, or
Luttil the Consultant accepts the tender, whichever occurs first. In the event that the City
must file responsive documents in a matter tendered to Consultant prior to Consultant's
acceptance of tender, Consultant agrees to Ailly reimburse all costs, including but not
limited to attorney's fees and costs and fees of litigation, incurred by the City in filing
such responsive documents,
The Consultant waives any and all rights to express or implied indemnity against the
Indemnitees concerning any Liability of the Consultant arising out of or in connection
with the Services or Consultant's failure to comply with any of the terms of this
Agreement. The defense and indemnification obligations of this Agreement shall no way
be limited by, the insurance obligations that apply to this Agreement pursuant to Section
23.
Notwithstanding the foregoing, to the extent this Agreement is a "construction contract"
as defined by California Civil Code Section 2783, as may be amended from time to time,
Consultant's duty to indemnify under this provision shall not apply when to do so would
be prohibited by California Civil Code Section 2782, as may be amended from time to
time.
Notwithstanding the foregoing, to the extent that the Services include design professional
services subject to California Civil Code Section 2782.8, as may be amended from. time
to tune, Consultant's duty to indemnify shall only be to the maxiinurn extent permitted by
California Civil Code Section 2782.8.
23, Insurance. Consultant shall comply with the "Insurance Requirements for Consultants"
in Exhibit B-2, attached hereto and incorporated herein by reference, ---. —
City reserves the right to review any and all of the required insurance policies and/or
endorsements, but has no obligation to do so. City's -failure to demand evidence of full
compliance with the insurance requirements set forth in this Agreement or City's failure
to identify any insurance deficiency shall not relieve Contractor ftom, nor be construed or
deemed a waiver of, its obligation to maintain the required insurance at all times during
the performance of this Agreement,
24, Aniendinent, This Agreement may be amended only by a written instrument executed
by both Parties,
PROFESSIONAL SERVICES AGREEMENT
(60932 1) Oct 2017 12
25. Litigation. If litigation ensues which pertains to the subject matter of Consultant's
services hereunder, Consultant, upon request from City, agrees to testify therein at a
reasonable and customary fee.
26. Construction. This Agreement is the product of negotiation and compromise on the part
of both Parties and that the Parties agree that, notwithstanding Civil Code Section 1654,
any uncertainty in the Agreement shall not be construed against the drafter of the
Agreement.
27. Governing Law; Venue. This Agreement shall be enforced and interpreted under the
laws of the State of California and the City of Petaluma. Any action arising from or
brought in connection with this Agreement shall be venued in a court of competent
jurisdiction in the County of Sonorna, State of California.
28. Non -Waiver. The City's failure to enforce any provision of this Agreement or the
waiver thereof in a particular instance shall not be construed as a general waiver of any
part of such provision. The provision shall remain in full force and effect.
29. Severabilitv. If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
30. No Third Partv Beneficiaries. The Parties do not intend to create, and nothing in this
Agreement shall be construed to create any benefit or right in any third party.
31. Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising
out of this Agreement through mediation prior to commencing litigation. The Parties
shall mutually agree upon the mediator and shall divide the costs of mediation equally.
32. Consultant's Boolo and Records.
A. Consultant shall maintain any and all ledgers, books of accounts, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating
to charges for services, or expenditures and disbursements charged to the City for
a minimum period of three (3) years or for any longer period required by law,
from the date of final payment to Consultant pursuant to this Agreement.
B. Consultant shall maintain all documents and records which demonstrate
performance under this Agreement for a minimum period of three (3) years or for
any longer period required by law, from the date of termination or completion of
this Agreement.
C. Any records or documents required to be maintained pursuant to this Agreement
shall be made available for inspection or audit, at any time during regular business
hours, upon written request by the City Manager, City Attorney, City Finance
Director, or a designated representative of these officers. Copies of such
documents shall be provided to the City for inspection at Petaluma City Hall
when it is practical to do so. Otherwise, unless an alternative is mutually agreed
upon, the records shall be available at Consultant's address indicated for receipt
of notices in this Agreement.
PROFESSIONAL SERVICES AGREEMENT
(609321) Oct 2017 13
33,
D. Where City has reason to believe that such records or documents may be lost or
discarded due to dissolution, disbandment or termination of Consultant's
business, City may, by written request by any of the above-named officers,
require that custody of the records be given to the City and that the records and
documents be maintained in Petaluma C4 Hall. Access to such records and
documents shall be granted to any party authorized by Consultant, Consultant's
representatives, or Consultant's successor in interest.
lleadinLys. The headings used in Ibis Agreement are for convenience only and are not
intended to affect the interpretation or construction of any provisions herein,
34. Survival. All obligations atising prior to the termination or expiration of this Agreement
and all provisions of this Agreement allocating liability between City and Consultant
shall survive the termination or expiration of this Agreement,
35. FwAlre Aureemeitt. This Agreement, including the exhibits attached hereto and
incorporated herein, constitutes the entire agreement between the Pat -des with respect to
the Services, and supersedes all prior agreements or understandings, oral or written,
between the Parties In this regard,
IN WITNESS WHEREOF, the parties hereto have executed this document the day, month mid
year first above written,
CITY OF PETAL UMA
City Maiiagor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
file namo., OHD2018
8
CONSULTANT
By
Titio
AM,=
City State zip
Taxpayer X.A. NwAbor
Z' -
Petaluma Business Tax CoMfloate Number
PROPUSSIONAT, 8ERMUS AOREEMENT
(609321) 0012017
14