Professional Services Agreement - Page 1 of 7
Phase II MS4 NPDES Permit Compliance Program
WGR Southwest, Inc.
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF RIPON AND
WGR Southwest, Inc.
This Agreement for Professional Services (“Agreement”) is entered into on, September 12, 2023 (the “Effective Date”) between the City of Ripon, a California municipal corporation (“City”) and WGR Southwest, Inc. (“Consultant”), (together sometimes referred to as the “Parties”).
Section 1. SERVICES. In accordance with the terms and conditions set forth in this Agreement, Consultant agrees to perform all services described in the Consultant’s Scope of Services attached hereto as Exhibit A. In the event of a conflict in or inconsistency between the terms of this Agreement and said scope of services, this Agreement shall prevail.
1.1 Term of Services. This Agreement shall begin upon signature by all Parties and shall end when Consultant completes the work described in said scope of work, or no later than two (2) years from the date this Agreement was signed by City, which ever is longer, unless the term of the Agreement is otherwise terminated or modified, as provided for herein. Notwithstanding the foregoing,
1.2 Standard of Performance. Consultant shall diligently perform all services required in connection with this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services in connection with this Agreement.
1.4 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. In the event of termination, Consultant shall be entitled to compensation for services satisfactorily completed as of the date that written notice of termination is received by consultant; City, however, may condition payment of such compensation upon Consultant delivering to City documents and records identified in Section 8.1 of this Agreement.
Section 2. COMPENSATION.
City hereby agrees to pay Consultant an amount NOT TO EXCEED Thirty Five Thousand Nine Hundred Seventy Two Dollars ($35,972) for all work described within the Cost Proposal set forth in Exhibit A and made a part of this Agreement.
2.1 Invoices. Consultant shall submit invoices as necessary during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date.
2.2 Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred.
2.3 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
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Section 3. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance listed below for the period covered by the Agreement. (Rev 3/18)
3.1 General Liability. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than two million dollars ($2,000,000) per occurrence, four million dollars ($4,000,000) general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability.
Consultant’s general liability policies shall be primary and non-contributory, and be endorsed using Insurance Services Office form CG 20 10 (or equivalent) to provide that City and its officers, officials, employees, and agents shall be additional insureds under such policies. For construction contracts, an endorsement providing completed operations to the additional insured, ISO form CG 20 37, is also required.
3.2 Workers’ Compensation. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance with limits of at least one million dollars ($1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
3.3 Auto Liability. Consultant shall provide auto liability coverage for owned, nonowned, and hired autos using ISO Business Auto Coverage form CA 00 01, or the exact equivalent, with a limit of no less than one million dollars ($1,000,000) per accident. If Consultant owns no vehicles, this requirement may be met through a nonowned auto endorsement to the CGL policy.
3.4 Professional Liability. Consultant shall maintain professional liability insurance that insures against professional errors and omissions that may be made in performing the Services to be rendered in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement, and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
3.5 All Policies Requirements.
3.5.1 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall, at the sole option of the City, provide City with (1) certified Certification of Insurance that demonstrates compliance with all applicable insurance provisions contained herein; (2) certified policy endorsements to the general liability policy adding the City of Ripon as an Additional Insured and declaring such insurance primary in regard to work performed pursuant to this Agreement; or (3) upon request by the City, complete certified copies of all policies and/or complete certified copies of all endorsements that demonstrate compliance with this Section 3.
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3.5.2 Notice of Reduction in or Cancellation of Coverage. A copy of the cancellation provisions must be attached to all insurance obtained in accordance with this Agreement.
Section 4. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. (Rev 3/18)
4.1 Indemnity for Professional Liability: When the law establishes a professional standard of care for Consultant’s Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend, and hold harmless City and any and all of its officials, employees and agents from and against any and all losses, liabilities, damages, costs, and expenses, including legal counsel’s fees and costs but only to the extent the Consultant (and its Subconsultants), are responsible for such damages, liabilities and costs on a comparative basis of fault between the Consultant (and its Subconsultants) and the City in the performance of professional services under this agreement.
4.2 Indemnity for Other Than Professional Liability: Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend, and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsel’s fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or City for which Consultant is legally liable, including, but not limited to officers, agents, employees, or subcontractors of Consultant.
Section 5. STATUS OF CONSULTANT.
5.1 Independent Consultant. At all times during the term of this Agreement, Consultant shall be an independent Consultant and shall not be an employee of City. Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.
Section 6. LEGAL REQUIREMENTS.
6.1 Governing Law. The laws of the State of California shall govern this Agreement.
6.2 Compliance with Applicable Laws. Consultant and any sub-Consultants shall comply with all laws applicable to the performance of the work in connection with this Agreement.
6.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any sub-Consultants have all licenses, permits, qualifications, and approvals of whatsoever nature, that are legally required to practice their respective professions.
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6.4 Nondiscrimination and Equal Opportunity. In compliance with federal, state and local laws, Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, sub-Consultant, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement.
6.5 Work Requiring Payment of Prevailing Wages. In accordance with California Labor Code Section 1771, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which these services are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in the California Labor Code shall be paid to all workers engaged in performing the services under this Agreement.
Section 7. MODIFICATION.
7.1 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
7.2 Assignment and Subcontracting. Consultant may not assign this Agreement or any interest therein without the prior written approval of the City. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the sub-Consultants noted in the proposal, without prior written approval of the City.
7.3 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
7.4 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following:
7.4.1 Immediately terminate the Agreement;
7.4.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant in accordance with this Agreement;
7.4.3 Retain a different Consultant to complete the work described in said scope of work not finished by Consultant; or
7.4.4 Charge Consultant for City's excess cost of completion of the unfinished work described in Exhibit A, if any. City's excess costs shall be reimbursed by Consultant where City's reasonable cost of completion paid to another qualified new consultant exceeds the amount City would have paid to Consultant pursuant to Section 2 absent the material breach; provided, however that any such excess cost reimbursement shall not exceed 25% of Consultant's quoted price for any unfinished task. Thus, by way of example, if following a material breach by Consultant a specific task which is budgeted at Professional Services Agreement - Page 5 of 7
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$10,000 has not commenced or adequately completed, and City must retain another new qualified consultant to complete that specific task Consultant would be responsible to reimburse City in the amount of up to $2,500 (25% of the Consultant’s $10,000 quoted price for the subject task). By way of further example, if the Consultant’s cost of completion of that specific task is $14,000, Consultant would be responsible to reimburse City in the amount of up to $3,500 (25% of the Consultant’s $14,000 quoted price for the subject task).
Section 8. KEEPING AND STATUS OF RECORDS.
8.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains in accordance with this Agreement and that relate to the matters covered under the terms of this Agreement shall be the property of the City. This clause does not include instruments of service.
8.2 Consultant’s Books and Records. Consultant shall maintain any and all records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
8.3 Confidential Information and Disclosure. During the term of this Agreement, either party (the "Disclosing Party") may disclose confidential, proprietary or trade secret information (the "Information"), to the other party (the "Receiving Party"). The Receiving Party shall hold the Disclosing Party's Information in confidence and shall take all reasonable steps to prevent any unauthorized possession, use, copying, transfer or disclosure of such Information. Consultant understands that the City is a public entity and is subject to the laws that may compel it to disclose information about Consultant’s business.
Section 9 MISCELLANEOUS PROVISIONS.
9.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
9.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of San Joaquin or in the United States District Court for the Eastern District of California.
9.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect.
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9.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
9.5 Contract Administration. This Agreement shall be administered by Kevin Werner, who shall act as the City’s representative. All correspondence shall be directed to or through the representative.
9.6 Notices.
Any written notice to Consultant shall be sent to:
Mr. John Teravskis
Operations Manager
WGR Southwest, Inc.
11780 N. Highway 99
Lodi, CA 95240
Any written notice to the City shall be sent to:
Mr. Kevin Werner
Administrator/City Engineer
City of Ripon
259 N. Wilma Avenue
Ripon, CA 95366
9.7 Integration; Incorporation. This Agreement, including all the exhibits attached hereto, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. All Exhibits attached hereto are incorporated by reference herein.
9.8 Alternative Dispute Resolution. If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations, City and Consultant agree to resolve the dispute in accordance with the following:
Each party will designate a senior management or executive level representative to negotiate the dispute. Through good faith negotiations, the representatives will attempt to resolve the dispute by any means within their authority. If dispute remains unresolved after fifteen (15) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by mediation through a disinterested third person as mediator selected by both Parties. Mediation will begin within thirty (30) days of the selection of this disinterested third party, and will end fifteen (15) days after commencement. The Parties shall equally bear the costs of any third party in any alternative dispute resolution process.
The alternative dispute resolution process is a material condition to this Agreement and must be exhausted as an administrative remedy prior to either party initiating legal action. This alternative dispute resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code Section 900, et. seq.
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9.9 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
The Parties have executed this Agreement as of the date signed by the City.
CITY OF RIPON CONSULTANT
Michael Restuccia, Mayor John Teravskis, Operations
Manager
Attest:
_________________________
Lisa Roos, City Clerk
Approved as to Form:
____________________________
Thomas Terpstra, City Attorney
11780 N. Hwy. 99 Lodi, CA 95240 (209) 334-5363 Fax (209) 334-5374 Los Alamitos, CA Lodi, CA
September 5th, 2023
Mr. James Pease
Public Works Director
City of Ripon
259 N. Wilma Avenue
Ripon, CA 95336
RE: Proposal for Compliance Support of the City of Ripon’s Phase II MS4 Compliance Program for July 1, 2023 – June 30, 2025
Dear Mr. Pease,
WGR Southwest, Inc. (WGR) is pleased to provide you with this proposal for providing ongoing compliance support for the City’s Phase II Municipal Separate Stormwater Sewer System (MS4) NPDES Permit compliance program. Although the City’s storm water permit expired on June 30, 2018, the City will be required to maintain its permit compliance programs until a new permit is adopted. Based on discussions and workshops with the State Water Resources Control Board, it is estimated that a new or renewed Phase II MS4 Permit will be released for public comment late 2024, early 2025. We have included some extra time to evaluate the draft permit, submit comments to the Water Board on behalf of the City, and new permit activities should it be adopted before the end of next year.
Estimated Budget Proposal
Please find included with this proposal Attachment A which provides a line-item cost estimate to provide compliance support for likely future needs through June 30, 2025.
We thank you for this extended opportunity to serve you. Should you have any questions or comments, please do not hesitate to contact me at (209) 334-5363, extension 110.
Sincerely,
WGR Southwest, Inc.
John M. Teravskis, CPESC, QSP/QSD
Senior Compliance Specialist and
Operations Manager for WGR’s Lodi Office
EXHIBIT A
ATTACHMENT A
WGR Southwest, Inc.
Estimated Two-Year Costs for City of Ripon Phase II MS4 Permit Compliance Program Support July 1, 2023 - June 30, 2025
Construction Program Element: Sub-totals
MS4 Inspection and SWPPP Review Program (E.10):
Monthly MS4 Construction Inspections (First Time Inspections for CGP-permitted projects) 2 New sites @ $245 Per inspection $490 Monthly MS4 Construction Inspections (Subsequent inspection and all inspections for non-CGP permitted projects) - this is assuming City staff are still performing the majority of QSD/QSP inspections 2 Monthly Inspections for 1 Sites @ $205 Per inspection $410 Follow-up MS4 Construction Inspections (as required) 2 Follow-up Inspections @ $205 Per re-inspection $410 ESCP Review as a part of the Plan Check Process 2 projects @ $250 review $500 SWPPP Review as a part of the Plan Check Process 2 projects @ $425 review $850 Post-Construction Standards Plan Program Element (E.12):
Review of Project-Specific Post Construction Standards Plans 24 projects @ $425 review $10,200 $10,200 Education & Outreach Support (E.7 and E.8):
16 Senior Compliance Specialist hours @ $166 /hr. $2,656 Other MS4 Permit Support:
2023 & 2024 Phase II MS4 Annual Report & Effectiveness Assessment Preparation (E.14 & E.16) 2 Annual Reports @ $4,750 report $9,500 40 Senior Compliance Specialist hours @ $166 /hr. $6,640 4 Senior Compliance Specialist hours @ $166 /hr. $664
2 Senior Compliance Specialist hours @ $166 /hr. $332
20 Senior Compliance Specialist hours @ $166 /hr. $3,320 Total Estimated 2023-2025 Cost: $35,972
Costs may be reimbursed to the City by developer fees. Number of projects estimated.
Misc. Permit Support - Respond to spills, SSOs, or illicit discharges; assist with State / Federal audits and/or correspondence; City staff / council presentations; Community outreach events; etc. $20,456 Permit renewal support and implementation
$2,660
City staff educational classes with WGR (WGR prepares and presents classes) Classes to be on PostConstruction and ESCP reviews, good housekeeping, integrated pest management for Public Works and Parks & Rec. staff
Pyrethroid Management Program support
Trash Management Program implementation and tracking
$2,656