HomeMy WebLinkAboutResolution 2023-166 N.C.S. 11/06/2023 DocuSign Envelope ID:5CFD8B2A-543E-427A-965A-CE33BA83269F
Resolution No. 2023-166 N.C.S.
of the City of Petaluma, California
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA AUTHORIZING THE
CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE SONOMA MARIN AREA
TRANSIT (SMART) FOR FUNDING REIMBURSEMENT RELATED TO PAVING AND
BICYCLE/PEDESTRIAN IMPROVEMENTS ON NORTH MCDOWELL BOULEVARD WITHIN
THE LIMITS OF THE SMART's MUP PROJECT
WHEREAS, Sonoma-Marin Area Rail Transit (SMART) has completed the California Environmental
Quality Act (CEQA) review and is proceeding with the design and construction of passenger rail service and
accompanying multi-use path along an approximately 70-mile existing rail corridor extending from Cloverdale
in Sonoma County, California, to a location near the ferry terminal in Larkspur, Marin County, California; and
WHEREAS,SMART received bids for the Petaluma North Station Platform,Grade Crossing Reconstruction,
and Pathway Project, which includes the reconstruction of the North McDowell Blvd. crossing and a Class 1
pathway in both the SMART right-of-way as well as the City right-of-way and adding a new signalized pedestrian
crosswalk across McDowell Blvd. which is within the jurisdiction and area the City is paving; and
WHEREAS, due to overlapping work at the crossing of North McDowell Blvd., the City and SMART staff
have determined that it is cost-effective to coordinate the City's improvements where project elements overlap;
and
WHEREAS, at the request of the City, SMART is agreeable to constructing the City's improvements as part
of its reconstruction of the North McDowell Blvd. crossing; and
WHEREAS, PG&E has notified the City of PG&E's desire and need to replace, relocate, and upgrade the
existing gas transmission pipeline with a replacement gas transmission pipeline by the construction of the project
consisting of the installation of a 16-inch diameter steel natural gas replacement pipeline installed using horizontal
directional drilling methods under the Petaluma River, which facilities will traverse the property, and removal of
two parallel 368 foot subsurface sections of existing 12-inch diameter steel natural gas pipeline and driplines,
pursuant to which construction is scheduled to commence on or about October 15, 2023; and
WHEREAS, in accordance with Government Section 830.6, the Director of Public Works and Utilities and
the Deputy Director of Operations have the discretion to review and approve the plan and design and, after
reviewing the plan, find it reasonable,based on their expertise and training,that the design complies with current
editions of Manual of Uniform Traffic Control Devices (CA), Highway design manual and Caltrans standard
plans and design practices, and from reviewing the site of the proposed construction; and
WHEREAS, SMART approved the construction bid with the bid alternative for City Paving contingent on
the City authorizing the execution of this agreement at their regular meeting on October 18, 2023.
NOW, THEREFORE, BE IT RESOLVED,by the City Council of the City of Petaluma as follows:
1. The City Council hereby finds and determines the foregoing recitals to be true and correct and hereby
incorporates them into this resolution as findings and determinations of the City Council.
2. Finds that this project is categorically exempt from California Environmental Quality Act ("CEQA")
requirements pursuant to Article 19, Section 15301(c), of Title 14 of the California Code of Regulations
Resolution No. 2023-166 N.C.S. Page 1
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("CEQA Guidelines") because the project consists of the repair, maintenance, and minor alteration of
existing public facilities involving negligible or no expansion of existing or former use. The restoration
work will repair and maintain existing pedestrian travel ways and related facilities without changing the
use of those facilities.Accordingly,there is negligible or no expansion of use beyond what currently exists,
and there are no cumulative impacts, unusual circumstances, or other factors that would make the
exemption inapplicable pursuant to CEQA Guidelines section 15300.2. Additionally, SMART has
completed the CEQA review and is proceeding with the design and construction of passenger rail service
and accompanying multi-use path along an approximately 70-mile existing rail corridor extending from
Cloverdale in Sonoma County,California,to a location near the ferry terminal in Larkspur,Marin County,
California. The proposed work on City property falls within the more extensive CEQA review for the
SMART project.
3. Authorizes the City Manager, or her designee, to execute an Agreement with the Sonoma Marin Area
Transit (SMART) for Funding Reimbursement Related to Paving and Bicycle/Pedestrian Improvements
on North McDowell Boulevard Within the Limits of the SMART's MUP Project substantially similar to
Exhibit E, attached to the concurrent staff report and incorporated herein.
4. Finds that the City issuing competitive proposals for this project would be unavailing or would not produce
an advantage. The advertisement for a competitive bid would thus be undesirable, impractical, or
impossible (Graydon v. Pasadena Redevelopment, Agency(1980) 104 CA3d 631); as SMART is bidding
on the project, the purpose behind the City's requirement to bid on the project will be achieved. There is
no advantage in having the City bid out the project separately again. Additionally, adopting the attached
resolution is beneficial to the City as staff time is saved, staff do not need to go through the bidding
process, and there are likely cost savings for the actual construction costs since SMART's contractor will
already be mobilized.
5. If any section, subsection, sentence, clause, phrase, or word of this resolution is for any reason held to be
unconstitutional,unlawful, or otherwise invalid by a court of competent jurisdiction or preempted by state
legislation, such decision or legislation shall not affect the validity of the remaining portions of this
resolution.The City Council of the City of Petaluma hereby declares that it would have passed and adopted
this resolution and each and all provisions thereof, irrespective of the fact that any one or more of said
provisions be declared unconstitutional, unlawful, or otherwise invalid.
6. This resolution shall take effect immediately upon City Council's adoption.
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 Approved as to
Council of the City of Petaluma at a Regular meeting on the 61'day of November Docusigneaprni:
2023 by the following vote:
City Attorney
AYES: McDonnell,Barnacle,Cader Thompson,Healy,Nan,Pocekay, Shribbs
NOES: None
ABSENT: None
ABSTAIN: None
DocuSigned by: DocuSigned by:
[HpuqA, F V, AU06VAIL&
ATTEST:
City Clerk Mayor
Resolution No. 2023-166 N.C.S. Page 2
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DocuSign Envelope ID:5CFD8B2A-543E-427A-965A-CE33BA83269F
City Rev 10/12/23
SMART Rev 10/13/23
FUNDING REIMBURSEMENT AGREEMENT
SONOMA-MARIN AREA RAIL TRANSIT DISTRICT AND CITY OF PETALUMA
THIS REIMBURSEMENT AGREEMENT("Agreement") is entered into as of , by
and between the SONOMA-MARIN AREA RAIL TRANSIT DISTRICT(District), a regional transportation
district duly established under the laws of California, and the CITY OF PETALUMA(City), a California
municipal corporation and charter city.
Recitals
A. The SMART District rail corridor, historically known as the Northwestern Pacific Railroad Authority
(NWPRA), generally parallels Highway 101 running north-south in Sonoma and Marin Counties.The
corridor is owned by the District from Milepost(MP) 84 in Cloverdale southward to MP 11.4 in Corte
Madera.
B. The District operates and maintains the rail corridor in accordance with applicable California Public
Utilities Commission (CPUC) and Federal Railroad Administration (FRA) laws and regulations.
C. The District has completed California Environmental Quality Act (CEQA) review and is proceeding with
design and construction of passenger rail service and accompanying multi use path along an
approximately 70-mile existing rail corridor extending from Cloverdale in Sonoma County, California,to
a location near the ferry terminal in Larkspur, Marin County, California.
D. The City is currently in the process of repaving North McDowell Boulevard from Old Redwood Highway
to Sunrise Parkway, including the roadway adjacent to the Districts' railroad crossing of North
McDowell Boulevard at railroad milepost MP 40.7 ("Crossing"), including class 2 bicycle path of travel
improvements along North McDowell Blvd ("City Project").
E. The City developed construction documents for the City Project, including paving and bicycle path of
travel improvements for the Crossing.
F. The District received bids for the Petaluma North Station Platform, Grade Crossing Reconstruction and
Pathway Project which includes the reconstruction of the Crossing and a class 1 pathway in both the
District right-of-way as well as the City right-of-way, and adding a new City signalized pedestrian
crosswalk across McDowell Boulevard ("District Project"), which is within the City right of way that the
City is paving pursuant to the City Project.
G. Due to overlapping work pursuant to the City and District Projects at the Crossing,the City and District
staff have determined that it will be cost effective to coordinate concerning the City and District
Projects where project elements overlap. For purposes of this Agreement,the City and District
improvements pursuant to their overlapping Projects at the Crossing are together referred to as the
Crossing Improvements.
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SMART Rev 10/13/23
H. The District is agreeable to constructing the Crossing Improvements, including the Crossing
Improvements that are or will become a part of the City Project,.
I. The City is committed to reimbursing the District for the full cost and expense of constructing the
Crossing Improvements that make up part of the City Project, as specified in this Agreement, including,
without limitation, in Section 3 and Exhibit D.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, City and District agree as follows:
1. RECITALS
The above recitals are true and correct and are hereby incorporated in and expressly form a part of
this Agreement.
2. COORDINATION
The City shall coordinate the Work with The District's Chief Engineer or his designee, contact
information for the parties' respective representatives is set forth below:
District City
Bill Gamlen Jeff Stutsman
Chief Engineer Deputy Director of Operations
Sonoma Marin Area Rail Transit District (SMART) City of Petaluma
5401 Old Redwood Highway, Suite 200 202 N McDowell Blvd.
Petaluma, CA 94954 Petaluma, California 94954
Phone: 707.794.3330 Phone: 707.776.3673
Email: BGamlen@sonomamarintrain.or� Email: JStutsman@cityofpetaluma.org
3. SCOPE OF WORK
i. Crossing Improvements. The Crossing Improvement work covered by this agreement at the
Crossing is graphically depicted in Exhibit A("Crossing Improvements").
The City's Class 2 bicycle pathway improvements at the Crossing are shown in Exhibit A and Exhibit
B ("City Improvements")
District shall pave roughly 28,100 square feet of City roadway and construct City's class 2 bicycle
pathway improvements including but not limited to entrance and exit ramps on Northbound and
Southbound North McDowell Boulevard including green bike lane striping pursuant to City's design.
In addition to improving the Crossing itself,the District is constructing a class 1 bicycle and
pedestrian pathway from Southpoint Boulevard to Main Street in Penngrove as part of the planned
north-south pathway network connecting stations in Marin and Sonoma counties ("District
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City Rev 10/12/23
SMART Rev 10/13/23
Improvements"). A portion of the class 1 at the Crossing pathway will be in City right of way along
the south-west side of North McDowell Boulevard from the north side of the crossing to the
entrance to Petaluma Estates where the class 1 pathway will cross North McDowell Boulevard in a
new City signalized pedestrian crosswalk. The pathway will also include a new City signalized
pedestrian crossing on Corona Road. These District constructed improvements in the City's right of
way("District-Constructed City Improvements") are shown in Exhibits A and C.These two new City
signalized pedestrian crossing at North McDowell Boulevard and Corona Road shall be accepted,
owned, operated and maintained by the City and shall become the property of the City upon
completion of the Crossing Improvements.
ii. Deductive Change Order
1. Following award of the District Contract,the District will issue a deductive change order
amending some of the bid items listed in Exhibit D of this Agreement that comprise the City
Improvements, as those bid items appear in the District Contract. Following issuance of the
deductive change order, Exhibit D and Section 5, paragraph ii of this Agreement shall be
amended accordingly, by memorandum in accordance with this section or otherwise,to reflect
the amended scope of the City Improvements and the City Improvements costs that the City is
obligated to reimburse pursuant to this Agreement. The District and the City estimate that
following issuance of the deductive change order and corresponding amendment of this
Agreement,the cost of the City Improvements will be reduced from $806,102.00 to
approximately$574,000.
iii. Request for Additional Work.
1. Initiation Conference:The City may initiate a request for additional work to be covered under
this Agreement. Such request shall be made in writing to District.The request shall include a
description of the proposed work. Following receipt of the request, the parties shall meet to
establish and agree on the following information:
a. Project Manager Information (name, address, phone number,fax number, and email
address).
b. Project Information (project name, project area, location map).
c. Project/task number.
d. Account number.
e. Time allowed to perform the work or Construction Schedule.
2. Agreement Memorandum.The District will prepare an Agreement Memorandum setting forth
the terms for the additional work as established during the Initiation Conference.The
Agreement Memorandum will be executed by authorized representatives of both parties and
become an amendment to this Agreement prior to the District issuance of a written
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authorization to proceed.
4. DISTRICT'S RESPONSIBILITIES
The District shall be responsible for the following:
i. Contract Administration: District has included the City Improvements in a construction contract
(CV-BB-23-004,the "District Contract")that will provide for construction of a new passenger rail
station in Petaluma, reconstruction of the North McDowell Boulevard at-grade crossing, and
bicycle and pedestrian pathways in the District right-of-way as well as in and along portions of City
right of way comprising the Crossing Improvements. The City Improvements were included as
Additive Alternate Bid Table E—North McDowell Boulevard Reconstruction (Petaluma Section) in
the District Contract.
ii. Construction: The District will oversee and administer the District Contract, manage day-to-day
construction activities, and accept the construction of the District Project, including the Crossing
Improvements (which include the City and District Crossing Improvements). The District shall not
be responsible for inspecting the City Improvements for conformance with the City Improvements
design.
iii. Permitting and Approvals: District shall participate and submit a joint GO 88B application to the
CPUC that-includes the crossing Improvements.
5. CITY'S RESPONSIBILITIES
The City agrees to perform the following:
i. Permitting and Approvals: City shall participate and submit a joint GO 88B application to the CPUC
for the crossing Improvements and inspect, review, approve and accept the City Improvements
constructed pursuant to this Agreement and the District Contract,to the extent the City
Improvements are in accordance with the City Improvements design and the District Contract.
ii. Payment:The cost for the Improvements is$806,102 as shown in the District Contract CV-BB-23-
004 Additive Alternate Bid Table E, which is included in Exhibit D of this Agreement. The City shall
allocate an additional ten percent (10%) contingency funding in the amount of$806,102 to cover
unknowns, differing site conditions and other unanticipated costs that may arise in constructing the
City Improvements for a total estimated City financial commitment for construction of the City
Improvements pursuant to this agreement of up to $886,712, including contingency. This amount
does not represent a "cap" on costs for the City Improvements. The City shall be responsible for all
the costs of constructing the City Improvements. City payments for City The City shall reimburse
District in accordance with Section 6 below.
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iii. Right of Entry: City shall provide any required permits to the District's Contractor at no cost to
construct the Crossing Improvements.
iv. McDowell Boulevard Roadwav Shutdown: the City shall allow and coordinate with the District
concerning complete closure of McDowell Boulevard for up to two weekends between Friday night
at 20:00 to Monday morning at 05:00 during construction of the Crossing Improvements . The City
shall waive any fees for the roadway closure and issue any necessary permits in a timely manner.
District and/or its contractor shall provide City a minimum of 30 days' notice prior to any full
closure of McDowell Boulevard.
V. Construction:The City shall be responsible for timely inspection and acceptance of the City
Improvements, and shall promptly notify District if it determines the City improvements are not in
conformance with City Improvements design. In the event of such non-conformance of the City
Improvements, City and District will confer and agree on a resolution; however, City may not direct
the District's contractor.
vi. Ownership of City's improvements: Upon completion and acceptance of the City Improvements in
accordance with the City Improvements design,the District Contract and this Agreement, City shall
be deemed to have assumed full responsibility, ownership, maintenance, and control of the City
Improvements.
6. PAYMENT AND REIMBURSEMENT PROCEDURES
i. Within 30 days of receipt of District's invoice, City shall reimburse District for the cost of
constructing the City Improvements. City payments for the cost of constructing the City
Improvements will be consistent with the unit prices bid and measured quantities for the City
Improvements work completed in accordance with the City Improvements design and the District
Contract.
7. INDEMNIFICATION
i. Insurance and Indemnification: District shall require its contractor to include City as an additional
insured party under the contract per the standard requirements of the DISTRICT contract. District
agrees to secure such protections against liability for the City to the maximum extent permitted by
such contracts. City agrees to fully cooperate with District concerning securing protection against
liability for the City pursuant to this provision.To the extent that the District is an additional insured
and/or a loss payee and/or the beneficiary of waivers of liability—such as,for example, waivers of
subrogation -or of policy endorsements concerning insurance requirements that apply pursuant to
the District Contract and any related contracts concerning construction of the Crossing
Improvements, District agrees to secure such protections against liability for the City to the
maximum extent permitted by such contracts.
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ii. City shall indemnify, defend, and hold the District harmless concerning any and all liability, damage,
claims, suits actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
penalties,fines, expenses and costs (including without limitation, claims expenses, attorneys'fees
and costs and fees of litigation), of any nature caused by the design, maintenance and operation of
the City Improvements. To the extent that the City is an additional insured and/or a loss payee
and/or the beneficiary of waivers of liability—such as,for example,waivers of subrogation -or of
policy endorsements concerning insurance requirements that apply pursuant to contracts of the
City concerning design of the City Improvements,the City agrees to secure such protections against
liability for the District to the maximum extent permitted by such contracts. District agrees to fully
cooperate with City concerning securing protection against liability for the District pursuant to this
provision.This indemnification obligation shall survive the expiration or termination of this
Agreement.
iii. Upon the completion and acceptance of the City Improvements in accordance with Section 5,
paragraph (vi) of this Agreement, and upon the termination or expiration of this Agreement,the
respective duties of the District and the City concerning improvements owned by each of them in
their property and rights of way shall be those duties established under applicable laws and
regulations. Nothing in this Agreement is intended to modify or may be construed to modify the
respective duties of the District and the City concerning improvements owned by each of them in
their property and rights of way pursuant to applicable laws and regulations. This provision shall
survive the expiration or termination of this Agreement.
8. ADDITIONAL REQUIREMENTS
i. Amendments to Agreement
This Agreement may be amended only by the mutual written consent of both parties.
ii. Termination
Either party may terminate this Agreement by giving 30-days prior written notice to the other
party, in the manner described below in Section 8.iii of this Agreement of its intent to terminate.
City shall pay District for all expenses, cost, contractor's claims associated with the portion of City's
work as of the termination date.
iii. Notice
Unless otherwise requested by a party, all notices, demands, requests, consents, or other
communications which may be or are required to be given by either party to the other shall be in
writing and shall be deemed effective upon service. Notices shall be deemed to have been properly
given when served on the party to whom the same is to be given by hand delivery or by deposit in
the United States mail addressed to the party as follows:
District: Bill Gamlen, P.E
Chief Engineer
Sonoma-Marin Area Rail Transit District
5401 Old Redwood Highway
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Petaluma, CA 94954
City: Jeff Stutsman
Deputy Director of Operations
City of Petaluma
202 McDowell Blvd.
Petaluma, California 94954
When a notice is given by a generally recognized overnight courier service, the notice, invoice, or
payment shall be deemed received on the next business day. When a notice or payment is sent via
United States Mail, it shall be deemed received seventy-two (72) hours after deposit in the United
States Mail, registered or certified, return receipt requested, with the postage thereon fully
prepaid. In all other instances, notices and payments shall be effective upon receipt by the
recipient. Changes may be made in the names and addresses of the person to whom notices are to
be given by giving notice pursuant to this paragraph.
iv. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of
California.
V. Entire Agreement
This instrument contains the entire agreement between the parties, and no statement, promise, or
inducement made by either party or agents of the parties that is not contained in this written
contract shall be valid or binding; and this contract may not be enlarged, modified, or altered
except in writing signed by the parties.
vi. Authority of City and District
The undersigned District and City officials hereby represent and warrant that they have the
authority to execute and deliver this Agreement on behalf of City or District, as applicable.
vii. No Waiver of Breach
The waiver by any of the Parties of any breach of any term or promise contained in this Agreement
shall not be deemed to be a waiver of such term or provision or any subsequent breach of the same
or any other term or promise contained in this Agreement.
viii. Time of Essence
Time is and shall be of the essence of this Agreement and every provision hereof.
ix. Construction
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To the fullest extent allowed by law,the provisions of this Agreement shall be construed and given
effect in a manner that avoids any violation of statute, ordinance, regulation, or law. The parties
covenant and agree that in the event that any provision of this Agreement is held by a court of
competent jurisdiction to be invalid,void, or unenforceable, the remainder of the provisions hereof
shall remain in full force and effect and shall in no way be affected, impaired, or invalidated
thereby. City and District acknowledge that they have each contributed to the making of this
Agreement and that, in the event of a dispute over the interpretation of this Agreement,the
language of the Agreement will not be construed against one party in favor of the other. City and
District acknowledge that they have each had an adequate opportunity to consult with counsel in
the negotiation and preparation of this Agreement.
f. Consent
Wherever in this Agreement the consent or approval of one party is required to an act of the other
party, such consent or approval shall not be unreasonably withheld or delayed.
g. No Third-Party Beneficiaries
There is no third person or entity who is an intended third-party beneficiary under this agreement.
No incidental beneficiary, whatever relationship such person may have with the Parties, shall have
any right to bring an action or suit, or to assert any claim against the Parties under this agreement.
Nothing contained in this agreement shall be construed to create and the Parties do not intend to
create any rights in third parties.
h. Captions
The captions in this Agreement are solely for convenience of reference. They are not a part of this
Agreement and shall have no effect on its construction or interpretation.
i. Acceptance of Electronic Signatures and Counterparts
The parties agree that this Agreement, any Agreements ancillary to this Agreement and related
documents to be entered into this Agreement will be considered executed when all parties have
signed this Agreement. Signatures delivered by scanned image as an attachment to electronic mail
or delivered electronically through the use of programs such as DocuSign must be treated in all
respects as having the same effect as an original signature. Each party further agrees that this
Agreement may be executed in two or more counterparts, all of which constitute one and the same
instrument.
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IN WITNESS WHEREOF,the District and the City have executed this Agreement as of the date first
above written.
CITY OF Petaluma: SONOMA-MARIN AREA RAIL TRANSIT DISTRICT:
By: By:
Peggy Flynn Eddy Cumins
City Manager General Manager
City of Petaluma SMART District
ATTEST:
By:
Kami Noriega
Deputy City Clerk
APPROVED AS TO FORM FOR CITY: APPROVED AS TO FORM FOR DISTRICT:
By: By:
Eric Danly Thomas Lyons
City Attorney SMART District Counsel
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