Revision to Agenda Item No. 12
Attachment Changes
Pages in Attachment A have been revised and need to be substituted. Language in Amendment No. 13 has been revised and is acceptable to Woodard and Curran and their legal counsel, City staff, and the City Attorney. A blackline document has been included to compare the updated version of Amendment 13 to the version originally published on the original agenda. A clean copy of Amendment 13 has also been included. There are no changes to the dollar amounts of compensation. Also, there are no changes to the original staff report or Exhibit ‘A’ of Amendment No. 13.
CLEAN VERSION
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13 AMENDMENT NUMBER: 13
TO
CONSULTANT/PROFESSIONAL SERVICES PROVIDER
AGREEMENT
BY AND BETWEEN
CITY OF VICTORVILLE
AND
WOODARD & CURRAN, INC.
FOR
OPERATION AND MAINTENANCE OF SCLA WASTEWATER TREATMENT PLANT
THIS AMENDMENT (the “Amendment”) is made and entered into this _ day of May, 2022, by and between the City of Victorville, a municipal corporation, organized and existing in the County of San Bernardino under and by virtue of the laws of the State of California (hereinafter referred to as “City”), and Woodard & Curran, Inc., a Maine Corporation, hereinafter referred to as “Consultant” ; City and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties”.
Recitals
1. WHEREAS, the City has a Professional Services Agreement with the Consultant to provide professional services for the Operation and Maintenance of SCLA Wastewater Treatment Plant. The Professional Services Agreement has been amended on twelve (12) prior occasions (The Professional Services Agreement, as amended, shall hereinafter be referred to as the “Original Agreement”); and
2. WHEREAS, the Original Agreement was entered into for the purposes of having the Consultant provide design, engineering, operation and maintenance services for the City’s Industrial Waste Water Treatment Plant (“IWWTP”), located at SCLA; and
3. WHEREAS, the IWWTP provides wastewater treatment services to, amongst others, the Dr. Pepper Snapple Group (“DPSG”) manufacturing plant which is also located at SCLA; and
4. WHEREAS, pursuant to the Original Agreement the Consultant facilitated the installation of a Membrane bioreactor which has not been operating as planned and therefore requires replacement; and
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13
5. WHEREAS, the failure of the current Membrane bioreactor has led to a dispute between Consultant and the City as to the obligations of the Parties under the Original Agreement (the “Dispute”); and
6. WHEREAS, the Parties deem it desirable to enter into this Amendment to, amongst other things, resolve the Dispute; and
7. WHEREAS, the Parties deem it desirable to further issue Amendment 13 to amend the Original Agreement and to have Consultant enter into and manage a Membrane Replacement Agreement with Suez Water Technologies & Solutions/ZENON Environmental Corporation in order to facilitate the replacement, installation, operation, and maintenance of certain components of the current Membrane bioreactor at the IWWTP; and
8. NOW THEREFORE, in consideration of the covenants, conditions, and promises contained herein and for such other good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree to amend the Original Agreement as stated below.
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13 Contract Amendment
The Original Agreement is being amended as follows:
1. The Term of the Original Agreement shall be extended to June 30, 2034.
2. The Original Agreement is her eby amended to ac knowledge and enable Consultant to enter into a Mem brane Replacement Agreement with Suez Water Technologies & Solutions / ZENON Environmental Corporation substantially in the form of Exhibit ‘A’ attached hereto and incorporated by this reference (the “Suez Agreement”). The Suez Agreement will have a twelve-y ear term. The purpose of said Suez Agreement is to provide for the replacement, installation, operation and maintenance of the certain components of the existing membrane bior eactor at the IWWTP all as more fully described in Exhibit ‘A’.
3. Subject to the provisions of Section 5 hereinafter, the compensation payable to Consultant for the additional (to the regular fee) annual costs relative to the Suez Agreement (“Suez Membrane Costs”) for Fiscal Year 22/23 shall be equal to $515,630. The purpose of this Amendment 13 is specific to the Suez Membrane Costs relative to the Suez Agreement.
4. Subject to the provisions of Section 5 hereinafter, the Suez Membrane Costs otherwise payable to Consultant for each subsequent fi scal year after 22/23 through June 30, 2034 shall be equal to $415,630.
5. As consideration for the se ttlement of the Dispute, the annual compensation amounts set forth in Section 3 and Section 4 hereof shall be reduc ed by a total amount over the term of $843,920 which is Consultant’s consideration hereunder, which amount shall be applied on a pro rata basis in the amount of $70,327 each year for the next twelve years of the Original Agreement.
6. Upon a termination of the Original Agreement for any reason, the City accepts an assignment of the Suez Agreement from Consultant to City and, upon the assignment, the Consultant shall have no fur ther responsibilities with r espect to the Suez Agreement.
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13
7. The City, and its agents, employees, representatives, officials, attorneys, accountants, beneficiaries, and each of them (collectively, "Releasing Parties"), do hereby release and forever discharge the Consultant and its successors, assigns, affiliates, subsidiaries, agents, employees, contractors, representatives, officers, directors, shareholders, attorneys, accountants, beneficiaries, and each of them (collectively, "Released Parties"), of and from any and all claims, demands, damages, debts, liabilities, actions and causes of action related to the Dispute, whether now known or unknown, which Releasing Parties have had, now have, or may hereafter have, against the Released Parties through and including the Effective Date of this Amendment, arising out of, based upon, or relating to the Dispute. The Releasing Parties acknowledge that they have been informed by their attorneys of the provisions of Section 1542 of the Civil Code of the State of California, which reads as follows: “ A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND
THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY”. The Releasing Parties do hereby expressly waive and relinquish all rights and benefits which they have, had, or may have under Section 1542 wi th respect to the release set forth herein. This is the result of a settlement of disputed claims and shall never at any time nor for any purpose be considered as an admission of liability or responsibility on the part of any party to this A mendment, or a s an admission or concession of the truth of any claim, allegation, or statement of fact or law which is the subject of the Dispute described herein.
Except as amended herein, the terms and conditions of the Original Agreement and all previous amendments shall remain in full force and effect.
(SIGNATURES ON NEXT PAGE)
IN WITNESS WHEREOF, the parties hereto have caused the Amendment to the Original Agreement to be entered as of the dates written below.
THE CITY OF VICTORVILLE WOODARD & CURRAN, INC.
By: __ By:
Debra Jones, Mayor
Dated:______________ Dated: _ _______
THE CITY OF VICTORVILLE
By: ___________________________________
Lee Brown, Risk Manager
Dated:______________
APPROVED AS TO STANDARD FORM
By: _____________________________________
Andre de Bortnowsky, City Attorney
Dated:______________
EXHIBIT ‘A’
EQUIPMENT PURCHASE AND SERVICE AGREEMENT WITH SUEZ WATER
TECHNOLOGIES & SOLUTIONS/ZENON ENVIRONMENTAL CORPORATION
[To be attached once signed]
RED LINE VERSION
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13 AMENDMENT NUMBER: 13
TO
CONSULTANT/PROFESSIONAL SERVICES PROVIDER
AGREEMENT
BY AND BETWEEN
CITY OF VICTORVILLE
AND
WOODARD & CURRAN, INC.
FOR
OPERATION AND MAINTENANCE OF SCLA WASTEWATER TREATMENT PLANT
THIS AMENDMENT (the “Amendment”) is made and entered into this _ day of May, 2022, by and between the City of Victorville, a municipal corporation, organized and existing in the County of San Bernardino under and by virtue of the laws of the State of California (hereinafter referred to as “City”), and Woodard & Curran, Inc., a Maine Corporation, hereinafter referred to as “Consultant” ; City and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties”.
Recitals
1. WHEREAS, the City has a Professional Services Agreement with the Consultant to provide professional services for the Operation and Maintenance of SCLA Wastewater Treatment Plant. The Professional Services Agreement has been amended on twelve (12) prior occasions (The Professional Services Agreement, as amended, shall hereinafter be referred to as the “Original Agreement”); and
2. WHEREAS, the Original Agreement was entered into for the purposes of having the Consultant provide design, engineering, operation and maintenance services for the City’s Industrial Waste Water Treatment Plant (“IWWTP”), located at SCLA; and
3. WHEREAS, the IWWTP provides wastewater treatment services to, amongst others, the Dr. Pepper Snapple Group (“DPSG”) manufacturing plant which is also located at SCLA; and
4. WHEREAS, pursuant to the Original Agreement the Consultant facilitated the installation of a Membrane bioreactor which has not been operating as planned and therefore requires replacement; and
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13
5. WHEREAS, the failure of the current Membrane bioreactor has led to a dispute between Consultant and the City as to the obligations of the Parties under the Original Agreement (the “Dispute”); and
6. WHEREAS, the Parties deem it desirable to enter into this Amendment to, amongst other things, resolve the Dispute; and
7. WHEREAS, the Parties deem it desirable to further issue Amendment 13 to amend the Original Agreement and to have Consultant enter into and manage a Membrane Replacement Agreement with Suez Water Technologies & Solutions/ZENON Environmental Corporation in order to facilitate the replacement, installation, operation, and maintenance of certain components of the current Membrane bioreactor at the IWWTP; and
8. NOW THEREFORE, in consideration of the covenants, conditions, and promises contained herein and for such other good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree to amend the Original Agreement as stated below.
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13
Contract Amendment
The Original Agreement is being amended as follows:
1. The Term of the Original Agreement shall be extended to June 2030, 2034.
2. The Original Agreement is hereby amended to acknowledge and enable Consultant to enter into a Membrane Replacement Agreement with Suez Water Technologies & Solutions / ZENON Environmental Corporation substantially in the form of Exhibit ‘ A’ attached hereto and incorporated by this reference (the “ Suez Agreement”). The Suez Agreement will have a twelve-year term. The purpose of said Suez Agreement is to provide for the replacement, installation, operation and maintenance of the certain components of the existing Membranemembrane bioreactor at the IWWTP all as more fully described in Exhibit ‘A’.
3. Subject to the provisions of Section 5 hereinafter, the annual compensation amount otherwise payable to Consultant for the additional (to the regular fee) annual costs relative to the Suez Agreement (“Suez Membrane Costs”) for Fiscal Year 22/23 shall be equal to $515,630. The purpose of this Amendment 13 is specific to the Suez Membrane Costs relative to the Suez Agreement. $515,630.
4. Subject to the provisions of Section 5 hereinafter , the annual compensation amountSuez Membrane Costs otherwise payable to Consultant for each subsequent fiscal year after 22/23 through June 30, 2034 shall be equal to $415,630.
5. As consideration for the settlement of the Dispute, the annual compensation amounts set forth in Section 3 and Section 4 hereof shall be reduced by a total amount over the term of $843,920 which is Consultant’s consideration hereunder, which amount shall be applied on a pro rata basis in the amount of $70,327 each year for the next twelve years of the Original Agreement. $70,327 each year for the next twelve years.
6. Upon a termination of the Original Agreement for any reason, the City accepts an assignment of the Suez Agreement from Consultant to City and, upon the assignment, the Consultant shall have no further responsibilities with respect to
Consultant/Professional Services Provider Agreement/Woodard & Curran, Inc./IWWTP/Amendment 13 the Suez Agreement.
7. The City, and its agents, employees, representatives, officials, attorneys, accountants, beneficiaries, and each of them (collectively, "Releasing Parties"), do hereby release and forever discharge the Consultant and its successors, assigns, affiliates, subsidiaries, agents, employees, contractors, representatives, officers, directors, shareholders, attorneys, accountants, beneficiaries, and each of them (collectively, "Released Parties"), of and from any and all claims, demands, damages, debts, liabilities, actions and causes of action related to the Dispute, whether now known or unknown, which Releasing Parties have had, now have, or may hereafter have, against the Released Parties through and including the Effective Date of this Amendment, arising out of, based upon, or relating to the Dispute. The Releasing Parties acknowledge that they have been informed by their attorneys of the provisions of Section 1542 of the Civil Code of the State of California, which reads as follows: “ A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND
THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY”. The Releasing Parties do hereby expressly waive and relinquish all rights and benefits which they have, had, or may have under Section 1542 with respect to the release set forth herein. This is the result of a settlement of disputed claims and shall never at any time nor for any purpose be considered as an admission of liability or responsibility on the part of any party to this A mendment, or as an admission or concession of the truth of any claim, allegation, or statement of fact or law which is the subject of the Dispute described herein.
Except as amended herein, the terms and conditions of the Original Agreement and all previous amendments shall remain in full force and effect.
(SIGNATURES ON NEXT PAGE)
IN WITNESS WHEREOF, the parties hereto have caused the Amendment to the Original Agreement to be entered as of the dates written below.
THE CITY OF VICTORVILLE WOODARD & CURRAN, INC.
By: __ By:
Debra Jones, Mayor
Dated:______________ Dated: _ _______
THE CITY OF VICTORVILLE
By: ___________________________________
Lee Brown, Risk Manager
Dated:______________
APPROVED AS TO STANDARD FORM
By: _____________________________________
Andre de Bortnowsky, City Attorney
Dated:______________
EXHIBIT ‘A’
REPLACEMENTEQUIPMENT PURCHASE AND SERVICE AGREEMENT WITH SUEZ
WATER TECHNOLOGIES & SOLUTIONS/ZENON ENVIRONMENTAL
CORPORATION
[To be attached once signed]