TWELFTH AMENDMENT TO
CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SUNNYV ALE AND
PSOMAS FOR WATER POLLUTION CONTROL PLANT
CONSTRUCTION MANAGEMENT SERVICES
Thi
s Twelfth Amendment to Consultant Services Agreement, dated _____________, is by and between the CITY OF SUNNYV ALE (“CITY”), a California chartered municipal corporation, and PSOMAS (“CONSULTANT”).
REC
ITALS
WHE
REAS, on May 6, 2015, CITY and the Covello Group, Inc. (“Covello Group”) entered into an agreement entitled, “Consultant Services Agreement between City of Sunnyvale and the Covello Group, Inc. for Water Pollution Control Plant Construction Management Services” (“Agreement” or “Consultant Services Agreement”); and
WH
EREAS, on March 13, 2018, CITY and the Covello Group entered into a First Amendment to Consultant Services Agreement whereby the Services by the Covello Group, Notice to Proceed, and Time for Performance were modified to incorporate Exhibit A -1, and the Payment for Fees and Expenses was modified as not to exceed $8,665,632; and WH
EREAS, on June 28, 2018, the Covello Group was dissolved via an executed Stock Purchase Agreement, as evidenced by Exhibit “D”; and
WH
EREAS, on June 28, 2018, CITY was issued written notification that the resulting legal entity is on and the same, with no change in corporate staff nor changes in services rendered to CITY , nor changes in assignment of contract personnel will occur as a result of the legal entity name change, as evidenced by Exhibit “E”; and
WH
EREAS, on October 17, 2018, CITY and CONSULTANT entered into a Second Amendment to Consultant Services Agreement whereby CITY acknowledged all references to “The Covello Group, Inc.” shall henceforth be to “PSOMAS”; and WH
EREAS, on December 7, 2019, CITY and CONSULTANT entered into a Third Amendment to Consultant Services Agreement whereby the Services by CONSULTANT, Notice to Proceed, and Time for Performance were modified to incorporate Exhibit A-2, and the Payment for Fees and Expenses was modified as not to exceed $8,985,991; and WH
EREAS, on March 4, 2020, CITY and CONSULTANT entered into a Fourth Amendment to Consultant Services Agreement whereby the Project Manager stated in the Services by Consultant and Notice were changed to Mike Redig; and Attachment 3
WHEREAS, on November 11, 2020, CITY and CONSU LTANT entered into a Fifth A
mendment to Consultant Services Agreement whereby the Time for Performance was extended t
hrough August 31, 2021; and
W
HEREAS, on October 19, 2021, CITY and CONSU LTANT entered into a Sixth A
mendment to Consultant Services Agreement whereby the Services by CONSUL TANT, Notice t
o Proceed, and Time for Performance were modified to incorporate Exhibit A-3, Exhibit A-4, Exhibit B-2, a nd Exhibit B -3, and the Payment for Fees and Expenses was modified as not to e
xceed $13,316,082; and
WHEREAS, on November 13, 2021, CITY and CONSU L TANT entered into a Seventh Amendment to Consultant Services Agreement whereby the Services by CONSU L TANT was modified to include attorney client privileges; and
WHEREAS, on December 12, 2021, CITY and CONSU LTANT entered into a n Eighth A
mendment to Consultant Services Agreement whereby the Services by CONSUL TANT, Notice t
o Proceed, and Time for Performance were modified to incorporate Exhibit A-5 and Exhibit B-4, and the Payment for Fees and Expenses was modified as not to exceed $29,966,549.00; and WHEREAS, on February 24, 2023, CITY and CONSU LTANT entered into a Ninth Amendment to Consultant Services Agreement whereby Services by CONSU L TANT, Notice to Proceed, and Payment of Fees and Expenses were modified to incorporate Exhibit A- 6 and Exhibit B-5, and the Payment for Fees and Expenses was modified as not to exceed $36,429,124.00; and WHEREAS, on October 2, 2024, CITY and CONSU LTANT entered into a Tenth Amendment to Consultant Services Agreement whereby the Time for Performance was extended t
hrough December 31, 2025; and
WHEREAS, on April 20, 2026, CITY and CONSU L TANT entered into a n Eleventh Amendment to Consultant Services Agreement whereby the Time for Performance was extended t
hrough December 31, 2026; and
WHEREAS, the parties desire to modify the Services by CONSUL TANT by updating language relating to the attorney client privileges, extend further the Time for Performance through May
1, 2029, and modify Payment for Fees and Expenses as not to exceed $39,846,201.00; and
W
HEREAS, CITY and CONSULTANT agree that a Twelfth Amendment to the Agreement is advis able.
NOW THEREFORE, t he parties ag ree to enter into this Twelfth Amendment to the Consultant Services Agreement as follows:
1. Sect
ion 1 is hereby amended in its entirety to read as follows:
1. Se
rvices by CONSULTANT
Attachment 3
CONSULTANT shall provide services in accordance with Exhibit "A" entitled "Scope of Work", Exhibit "A-1" entitled "Additional Scope of Work", and Exhibit "A -2" entitled "Additional Scope of Work – 1”, Exhibit “A-3” entitled “Additional Scope of Work – 2”, Exhibit “A -4” entitled “Additional Scope of Work – 3”, Exhibit “A -5” entitled “Additional Scope of Work – 4”, and Exhibit “A-6” entitled “Additional Scope of Work – 5”. All exhibits referenced in this Agreement are attached hereto and are incorporated herein by reference. To accomplish that end, CONSULTANT agrees to assign Mike Redig, PE, to this project, to act in the capacity of Project Manager and personally direct the professional services to be provided by CONSULTANT.
Except as specified in this Agreement, CONSULTANT shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to satisfactorily complete the services required in this Agreement.
In addition to the services being provided to the Department of Public Works as described above, CONSULTANT shall provide the following services related to the project under the direction of the City Attorney. CONSULTANT shall determine the method, details and means of performing such services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT'S services.
CONSULTANT shall perform the services at such times and places as CONSULTANT shall determine, with the exception of attendance at meetings required in conjunction with the services rendered. CONSULTANT shall assist the City Attorney and City's outside contract attorney(s) by providing specialized consulting services and technical advice and, if necessary, expert testimony under oath related to any potential claim or actual claim filed by C. Overaa & Co. (“Overaa”) including, but not limited to, Overaa’s Change Order Requests 171.1 and 171.2 (failure by PG&E to provide permanent power to the project site), C. Overaa & Co. v. City of Sunnyvale (Santa Clara County Case No. 25CV462318), and other Change Order Requests submitted by Overaa as requested by the City Attorney, or their designee. The City, City Attorney, and the City’s outside contract attorney(s) will otherwise be solely responsible for the defense of such claims. Any communications between CONSULTANT and the City Attorney and/or outside counsel are confidential communications.
2. Section 2, subsection (b), is hereby amended to read as follows:
2. Notice to Proceed/Completion of Services
(b) When CITY determines that CONSULTANT has satisfactorily completed the services defined in Exhibit “A”; Exhibit “A-1”; Exhibit “A-2”; Exhibit “A-3”, Exhibit “A- 4”, and Exhibit “A-5”, and Exhibit “A-6”, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder.
CONSULTANT may request this determination of completion when, in its opinion, it has satisfactorily completed the Scope of Work (Exhibit “A”); Additional Scope of Work (Exhibit “A-1”); Additional Scope of Work – 1 (Exhibit “A-2”); Additional Scope of Work Attachment 3
– 2 (Exhibit “A-3”); Additional Scope of Work – 3 (Exhibit “A-4”); and Additional Scope of Work – 4 (Exhibit “A-5”); and Additional Scope of Work – 5 (Exhibit "A-6”); and if so requested, CITY shall make this determination within fourteen (14) days of such request.
3. Section 3 is hereby amended in its entirety to read as follows:
3. T ime for Performance
The term of this Agreement will be from contract execution through May 1, 2029.
CONSULTANT shall deliver the agreed upon services to CITY as specified in the scopes of work as specified in Section 1 of this Agreement.
4. Section 4 is hereby amended in its entirety to read as follows:
4. Payment of Fees and Expenses
Payments shall be made to CONSULTANT on a monthly basis as set forth in the attached Exhibit “B” entitled "Compensation Schedule”, Exhibit “B -1” entitled "Additional Compensation Schedule”, Exhibit "B -2” entitled "Additional Compensation Schedule -1”, Exhibit "B-3” entitled "Additional Compensation Schedule – 2”, Exhibit “B- 4” entitled “Additional Compensation Schedule – 3”, Exhibit “B-5” entitled “Additional Compensation Schedule – 4”, and Exhibit “B -6” entitled “Additional Compensation Schedule – 5”. All compensation will be based on monthly billings as provided in Exhibit “B”, Exhibit "B -1”, Exhibit "B -2”, Exhibit "B -3”, Exhibit "B -4”, Exhibit "B -5”, and Exhibit “B-6”. Compensation will not be due until said detailed billing is submitted to CITY within a reasonable time before payment is expected to allow for normal CITY processing. An estimate of the percent of total completion associated with the various categories of the services shall be furnished by CONSULTANT with said billing. When applicable, copies of pertinent financial records will be included with the submission of billing(s) for all direct reimbursables. Compensation shall not exceed the amounts set forth in Exhibit “B”, Exhibit "B-1”, Exhibit "B-2”, Exhibit "B-3”, Exhibit "B-4”, Exhibit "B-5”, and Exhibit “B-6” for each phase. In no event shall the total amount compensation payable under this agreement exceed the sum of Thirty- Nine Million Eight Hundred Forty-Six Thousand Two Hundred One and No/100 Dollars ($39,846,201.00) unless upon written modification of this Agreement. All invoices, including detailed backup, shall be sent to City of Sunnyvale, attention Accounts Payable, P.O. Box, Sunnyvale, CA 94088-3707.
5. Section 8 is hereby amended in its entirety to read as follows:
8. Scope of Work
CONSULTANT represents and maintains that it is skilled in the professional calling necessary to perform the services and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT's representations regarding its skills and knowledge. CONSULTANT shall perform such services and duties in conformance to and consistent with the standards generally recognized as being Attachment 3
employed by professionals in the same discipline in the State of California. The plans, designs, specifications, estimates, calculations reports and other documents furnished under the scopes of work as specified in Section 1 shall be of a quality acceptable to CITY .
The criteria for acceptance of the work provided under this Agreement shall be a product of neat appearance, well -organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar projects.
6. Exhibit B -6, entitled “Additional Compensation Schedule – 5”, is attached hereto and incorporated into the Agreement.
7. All of the terms and conditions not specifically modified by this Twelfth Amendment shall remain in full force and effect.
IN WITNESS HEREOF on the day and year first written above, the parties have executed this Twelfth Amendment.
CITY OF SUNNYV ALE ("CITY") PSOMAS (“CONSULTANT”)
By _____________________________ By _____________________________
TIM KIRBY
City Manager
________________________________
Name and Title
ATTEST:
By _____________________________
By ___________________________
DA VID CARNAHAN
City Clerk ________________________________
Name and Title
APPROVED AS TO FORM:
By ___________________________
SUSAN YOON
Assistant City Attorney
Attachment 3
Exhibit B-6
Additional Compensation Schedule – 5
Attachment 3