HomeMy WebLinkAbout07-06-2016 Operations Committee Agenda Packet Orange County Sanitation District Wednesday, July 6, 2016
Regular Meeting of the a 5:00 P.M.
OPERATIONS COMMITTEE Administration Building
Board Room
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7433
AGENDA
CALL TO ORDER
PLEDGE OF ALLEGIANCE
DECLARATION OF QUORUM: Clerk of the Board
PUBLIC COMMENTS: If you wish to address the Committee on any item,please complete a Speaker's
Form (located at the table outside of the Board Room) and submit it to the Clerk of the Board or notify the
Clerk of the Board the item number on which you want to speak. Speakers will be recognized by the Chairman
and are requested to limit comments to three minutes.
REPORTS: The Committee Chair and the General Manager may present verbal reports on miscellaneous
matters of general interest to the Committee Members. These reports are for information only and require no
action by the Committee.
CONSENT CALENDAR: The Consent Calendar Items are considered to be routine and will be enacted,
by the Committee, after one motion, without discussion. Any items withdrawn from the Consent Calendar for
separate discussion will be considered in the regular order of business.
1. APPROVAL OF MINUTES (Clerk of the Board)
RECOMMENDATION: Approve Minutes of the June 1, 2016 Operations Committee
Meeting.
07106/2016 Operations committee Agenda Page 1 of 5
2. FISH TRACKING STUDY - SOLE SOURCE CONTRACT WITH
DR. CHRISTOPHER LOWE — CALIFORNIA STATE UNIVERSITY LONG BEACH
(James E. Colston)
RECOMMENDATION: Recommend to the Board of Directors to:
Award a Sole Source Contract to Dr. Christopher Lowe of the California State
University Long Beach to conduct a fish tracking study in support of the Orange
County Sanitation District's National Pollution Discharge Elimination System
(NPDES) Ocean Discharge Permit for the period August 1, 2016 through June 30,
2018, at a project cost not to exceed $200,000.
3. MONTEREY BAY AQUARIUM RESEARCH INSTITUTE OCEAN ACIDIFICATION
AND HYPDXIA MOORING SUPPORT (James E. Colston)
RECOMMENDATION: Recommend to the Board of Directors to:
Approve a Service Agreement to the Monterey Bay Aquarium Research Institute
(MBARI) to provide technical support and training to District staff to develop the in-
house ability to operate, service, and maintain the Orange County Sanitation
District's Ocean Acidification and Hypoxia mooring for the period of July 1, 2016 to
June 30, 2017,for an amount not to exceed $120,000 with the option of four(4)one-
year renewals.
4. INLAND EMPIRE REGIONAL COMPOSTING AUTHORITY CONTRACT
AMENDMENT 2015-2016 (James E. Colston)
RECOMMENDATION: Recommend to the Board of Directors to:
Approve Contract Amendment number 4600001879-001 with Inland Empire
Regional Composting Authority (IERCA) for the Orange County Sanitation District to
1) use farm bed trailers to transport biosolids to the Inland Empire Regional
Composting Facility, and 2) pay to IERCA for biosolids received and processed at a
base fee of$55.00 per wet ton, plus an administrative fee of$2.00 per wet ton and
any other adjustments provided for in the original agreement. This Contract
Amendment shall serve as the first annual renewal of three one-year renewal options
of the original agreement in a total annual amount not to exceed $900,000/year for
IERCA to receive and compost up to 50 wet tons per day (Monday thru Friday) of
OCSD's biosolids.
5. PURCHASE OF REPLACEMENT VALVES FOR PLANT NO. 2 DIGESTERS E & H
(Ed Torres)
RECOMMENDATION: Award a purchase order contract to CS-AMSCO for
replacement valves for Plant No. 2 Digesters E & H for a total amount not to exceed
$196,104.60.
07/06/2016 operations CommRtee Agenda Page 2 of 5
6. CONTRACT FOR NATURAL GAS, SPECIFICATION NO. C-2016-778BD
(Ed Torres)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve a purchase order agreement to Constellation NewEnergy — Gas
Division, LLC for the purchase of Natural Gas, Specification No. C-2016-
778BD for the period August 1, 2016 through July 31, 2017 for a monthly index
unit price of $0.039 per Million British Thermal Units (MMBtu) for a total
estimated annual cost of $296,000, with four (4) one-year renewal options;
and
B. Approve unit price contingency of(10%).
7. CONTRACT FOR ANIONIC POLYMER, SPECIFICATION NO. C-2016-751BD
(Ed Torres)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve an agreement to Polydyne, Inc.for the Purchase of Anionic Polymer,
Specification No. C-2016-751BD, for the period September 1, 2016 through
August 31, 2017, for a unit price of $2.605 per active pound delivered, plus
applicable sales tax, for a total estimated annual amount of $370,000, with
four one-year renewal options; and
B. Approve a unit price contingency of 10%.
NON-CONSENT CALENDAR:
8. 2017 FACILITIES MASTER PLAN — PROJECT PS15-10 (Rob Thompson)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve a Professional Services Agreement with Carollo Engineers, Inc. to
provide professional services for 2017 Facilities Master Plan, Project
PS15-10, for an amount not to exceed $3,132,052; and
B. Approve a contingency of$313,205 (10%).
9. SAFETY IMPROVEMENT AT PLANT NOS. 1 AND 2, PROJECT NO. J-126
(Rob Thompson)
RECOMMENDATION: Recommend to the Board of Directors to:
07/06/2016 Operations CommRtee Agenda Page 3 c f 5
A. Approve a Professional Design Services Agreement with Arcadis U.S., Inc. to
provide program and engineering design services for Safety Improvement at
Plant Nos. 1 and 2, Project No. J-126, for an amount not to exceed $1,540,000;
and
B. Approve a contingency of$154,000 (10%).
10. PRIMARY TREATMENT REHABILITATION AT PLANT 2, PROJECT NO. P2-98
(Rob Thompson)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve a Professional Design Services Agreement with Black & Veatch to
provide engineering design services for Primary Treatment Rehabilitation at
Plant 2, Project No. 132-98, for a total amount not to exceed $18,141,423; and
B. Approve a contingency of$1,814,142 (10%).
11. HEADQUARTERS COMPLEX, SITE AND SECURITY, AND ENTRANCE
REALIGNMENT PROGRAM, PROJECT NO. P1-128 (Rob Thompson)
RECOMMENDATION: Recommend to the Board of Directors to:
Approve a Broker Representation Agreement with Cushman & Wakefield to give
exclusive authority to represent the Orange County Sanitation District, at no cost, for
the investigation and potential negotiation to acquire existing office building and/or
land for a new Administration Building in an area near Plant No. 1.
INFORMATION ITEMS:
12. ENERGY SUPPLY AND DEMAND (Rob Thompson)
DEPARTMENT HEAD REPORTS:
OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS,
IF ANY:
07106/2016 Operations Committee Agenda Page 4 of 5
ADJOURNMENT:
The next Operations Committee meeting is scheduled for Wednesday, September 7, 2016,
at 5:00 p.m.
Accommodations for the Disabled: Meeting Rooms are wheelchair accessible. If you require any special disability
related accommodations, please contact the Orange County Sanitation District Clerk of the Board's office at
(714) 593-7433 at least 72 hours prior to the scheduled meeting. Requests must specify the nature of the disability
and the type of accommodation requested.
Agenda Posting: In accordance with the requirements of California Government Code Section 54954.2,this agenda
has been posted outside the main gate of the Sanitation District's Administration Building located at 10844 Ellis Avenue,
Fountain Valley,California,not less than 72 hours prior to the meeting date and time above. All public records relating
to each agenda item,including any public records distributed less than 72 hours prior to the meeting to all,or a majority
of the Board of Directors,are available for public inspection in the office of the Clerk of the Board.
Agenda Description: The agenda provides a brief general description of each item of business to be considered or
discussed. The recommended action does not indicate what action will be taken. The Board of Directors may take
any action which is deemed appropriate.
NOTICE TO DIRECTORS: To place items on the agenda for the Committee Meeting,items must be submitted to the
Clerk of the Board 14 days before the meeting.
Kelly A. Lore
Clerk of the Board
(714)593-7433
klore(rpocsd.cem
For any questions on the agenda,Committee members may contact staff at:
General Manager Jim Hedberg (714)593-7300 iherberg(glocsd.com
Assistant General Manager Bob Ghirelli (714)593-7400 rghirelli2Zocsd.com
Director of Engineering Rob Thompson (714)593-7310 rlhompson(cfomd.com
Director of Environmental Services Jim Colston (714)593-7450 icolston(docsd.com
Director of Operations&Maintenance Ed Torres 714 593-7080 etorres ocsd.com
07/06/2016 Operations Committee Agenda Page 5 of 5
ITEM NO. 1
MINUTES OF THE
OPERATIONS COMMITTEE
Orange County Sanitation District
Wednesday, June 1, 2016, 5:00 p.m.
A regular meeting of the Operations Committee was called to order by Committee Chair
Withers on Wednesday, June 1, 2016 at 5:03 p.m. in the Administration Building.
Director Murphy led the Flag Salute.
A quorum was declared present, as follows:
COMMITTEE MEMBERS PRESENT: STAFF PRESENT:
John Withers, Chair Jim Herberg, General Manager
David Shawver, Vice-Chair Bob Ghirelli, Assistant General Manager
Tom Beamish Celia Chandler, Director of Human Resources
Ellery Deaton Rob Thompson, Director of Engineering
Steve Jones Ed Torres, Director of Operations and Maintenance
Robert Kiley Tina Knapp, Deputy Clerk of the Board
Richard Murphy Jennifer Cabral
Steve Nagel Mike Dorman
Fred Smith Dean Fisher
Michelle Steel Alfredo Garcia
Chad Wanke Mark Manzo
Mariellen Yarc Kathy Millea
Greg Seboum, Board Vice-Chair Jeff Mohr
Wendy Sevenandt
COMMITTEE MEMBERS ABSENT: Richard Spencer
John Nielsen, Board Chair Mike White
Mickey Whitney
Eros Yong
OTHERS PRESENT:
Brad Hogin, General Counsel
Michael Beverage, Alternate Director YLWD
Bob Ooten, Alternate Director CMSD
PUBLIC COMMENTS:
None.
REPORT OF COMMITTEE CHAIR:
Committee Chair Withers did not provide a report.
06/01/2016 Opeations Committee Minutes Page 1 of 5
REPORT OF GENERAL MANAGER:
General Manager Jim Herberg did not provide a report.
CONSENT CALENDAR:
1. APPROVAL OF MINUTES (Clerk of the Board)
MOVED. SECONDED. and DULY CARRIED TO: Approve Minutes of the
May 4, 2016 Operations Committee Meeting.
AYES: Beamish, Deaton, Jones, Kiley, Murphy, Nagel, Sebourn,
Shawver, F. Smith, Steel, Wanks, Withers, and Yarc
NOES: None
ABSTENTIONS: None
ABSENT: Nielsen
2. ON-CALL CONTRACTOR SUPPORT SERVICES (Ed Torres)
MOVED, SECONDED, and DULY CARRIED TO: Recommend to the Board of
Directors to: Approve Amendment No. 1 to the On-Call Contractor Support
Services Contract, Specification No. S-2011-483BD, with Jamison Engineering
Contractors, Inc., providing for construction support, extending the contract period
for a four month period from July 1, 2016 to October 31, 2016, with no increase
to the contract amount.
AYES: Beamish, Deaton, Jones, Kiley, Murphy, Nagel, Sebourn,
Shawver, F. Smith, Steel, Wanks, Withers, and Yarc
NOES: None
ABSTENTIONS: None
ABSENT: Nielsen
3. PLANT WATER SYSTEM REHABILITATION AT PLANT NO. 2, PROJECT NO.
P2-101 (Rob Thompson)
MOVED. SECONDED. and DULY CARRIED TO: Recommend to the Board of
Directors to: Recommend to the Board of Directors to: Approve a project budget
increase of$150,000 for Plant Water System Rehabilitation at Plant No. 2 included
in the Proposed Budget for Fiscal Years 2016-17 and 2017-18 scheduled to be
approved at the June 22, 2016 Board of Directors meeting.
AYES: Beamish, Deaton, Jones, Kiley, Murphy, Nagel, Sebourn,
Shawver, F. Smith, Steel, Wanke, Withers, and Yarc
NOES: None
ABSTENTIONS: None
ABSENT: Nielsen
06/01/2016 Operations Committee Minutes Page 2 of 5
NON-CONSENT CALENDAR:
4. HEADQUARTERS COMPLEX, SITE AND SECURITY, AND ENTRANCE
REALIGNMENT PROGRAM, PROJECT NO. P1-128 (Rob Thompson)
Director of Engineering Rob Thompson provided an informative PowerPoint
presentation pertaining to both Items 4 and 5. The presentation included
information regarding the implementation plan for the Administrative Facilities,
impacts of the Orange County Transportation Authority 1-405 Improvement Plan,
and North and Pacific location alternatives as required by the California
Environmental Quality Act (CEQA). Mr. Thompson responded to questions from
the Committee regarding overall project costs, additional items included in the
project, and the proposed alternative locations.
A motion was made and seconded and Items 4 and 5 were approved as one single
action.
MOVED. SECONDED. and DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a Professional Services Agreement with LSA Associates, Inc. to
provide environmental services for the preparation of a California
Environmental Quality Act compliant document for the Headquarters
Complex, Site and Security, and Entrance Realignment Program,
Project No. P1-128 for an amount not to exceed $420,927; and
B. Approve a contingency of$42,093 (10%).
5. HEADQUARTERS COMPLEX, SITE AND SECURITY, AND ENTRANCE
REALIGNMENT PROGRAM, PROJECT NO. P1-128 (Rob Thompson)
MOVED. SECONDED. and DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a Professional Design Services Agreement with HDR Architecture,
Inc. to provide architectural and engineering design services for the
Headquarters Complex, Site and Security, and Entrance Realignment
Program, Project No. 131-128, for an amount not to exceed $11,785,709;
and
B. Approve a contingency of$1,178,571 (10%).
AYES: Beamish, Deaton, Jones, Kiley, Murphy, Nagel, Sebourn,
Shawver, F. Smith, Steel, Wanke, Withers, and Yarc
NOES: None
ABSTENTIONS: None
ABSENT: Nielsen
06/01/2016 Operations Committee Minutes Page 3 of 5
INFORMATION ITEMS:
6. WORKFORCE PLANNING (Celia Chandler)
Directorof Human Resources Celia Chandler provided a brief overview of this item
and introduced Richard Spencer, Human Resources Manager. Mr. Spencer
provided a PowerPoint presentation with an overview of the organizational
structure and demographics of the Orange County Sanitation District including
attrition and retirement eligibility statistics. Mr. Spencers presentation also
included planning for future needs of the workforce and planning for these needs.
Mr. Spencer responded to questions from the Committee regarding the percentage
of employees eligible for employment, and how it compares to similar agencies,
and the recruitment process.
7. 2016-17/2017-18 BUDGET PRESENTATION (Lorenzo Tyner)
Director of Finance and Administrative Services Lorenzo Tyner provided a brief
overview of this item and introduced Controller Mike White, who provided a
PowerPoint presentation on the proposed budget for fiscal years 2016-17 and
2017-18. The presentation included major revenue components, a comparison of
single family residential rates between comparable agencies, anticipated
performance of property tax revenue, outlay categories, a summary of proposed
operating expenses, Capital Improvement Program (CIP) components, and debt
issuances.
Mr. White and Mr. Herberg responded to questions from the Committee regarding
what percentage of revenue represents CIP costs. Mr. Tyner indicated that the
budget will be presented to the Administration Committee and Board of Directors
for approval in June. Mr. Tyner also responded to a questions and comments from
the Committee regarding unfunded liability and the release of actuarial reporting.
DEPARTMENT HEAD REPORTS:
None.
OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS,
IF ANY:
None.
06/01/2016 Operations Committee Minutes Page 4 of 5
ADJOURNMENT
At 6:09 p.m., Committee Chair Withers declared the meeting adjourned to the next
scheduled meeting of Wednesday, July 6, 2016 at 5:00 p.m.
Submitted by,
Tina Knapp
Deputy Clerk of the Board
06/01/2016 Operations Committee Minutes Page 5 of 5
OPERATIONS COMMITTEE MeaHngDae TOBd.OfDir.
07/O6/16 07/27/16
AGENDA REPORT ItemNumber Item Number
z
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: James E. Colston, Director of Environmental Services
SUBJECT: FISH TRACKING STUDY - SOLE SOURCE CONTRACT WITH
DR. CHRISTOPHER LOWE — CALIFORNIA STATE UNIVERSITY LONG
BEACH
GENERAL MANAGER'S RECOMMENDATION
Award a Sole Source Contract to Dr. Christopher Lowe of the California State University
Long Beach to conduct a fish tracking study in support of the Orange County Sanitation
District's National Pollution Discharge Elimination System (NPDES) Ocean Discharge
Permit for the period August 1, 2016 through June 30, 2018, at a project cost not to
exceed $200,000.
BACKGROUND
The Orange County Sanitation District (Sanitation District) is required under the NPDES
Ocean Discharge Permit to monitor for the tissue levels of certain chemical contaminants
in specified fish species. These species include the Hornyhead Turbot, English Sole, and
California Scorpionfish. Fish are collected at two sites, one at the end of the outfall
diffuser and one at a farfield (reference) site about five miles up coast from the outfall.
The muscle and livertissue of these fish are analyzed for a suite of chemical contaminants
and reported to regulators in the Marine Monitoring Annual Report.
These tissue contaminant levels are used to assess ecosystem health and human health
risk from consuming fish caught near the discharged final effluent. The location of capture
of the fish is de facto considered to be the location of exposure to the chemicals measured
in their tissues. This may or may not be accurate since virtually nothing is known about
the movement of these fishes. Regardless, the Sanitation District is held accountable for
the contaminant levels in tissues in fish collected at the outfall site.
RELEVANT STANDARDS
• NPDES permit requirements
• California Ocean Plan Standards
PROBLEM
The Sanitation District discharges treated effluent into the coastal ocean. The Sanitation
District's NPDES permit requires monitoring the tissues of certain fish species for a suite
of chemical contaminants to assess potential environmental and human health impacts
Page 1 of 2
from the consumption of fish caught near the Sanitation District's point of effluent
discharge.
PROPOSED SOLUTION
The purpose of this fish tracking study is to monitor the movements of these fish in the
monitoring area to determine if the location of capture is indeed of sufficient exposure to
answer the questions of potential environmental and human health impacts from the
Sanitation District's effluent discharge.
Dr. Lowe was chosen for this project as he is the regional expert in conducting fish
tracking studies. He has conducted extensive fish tracking studies in southern California
for the National Oceanic and Atmospheric Administration (NOAA), the State of California,
and the Los Angeles County Sanitation Districts in addition to his academic research.
TIMING CONCERNS
N/A
RAMIFICATIONS OF NOT TAKING ACTION
The Sanitation District will continue to monitor tissue contaminant levels in fish species
that may not be representative of exposure to the discharged final effluent.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
N/A
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the OCSD's Purchasing Ordinance.
Sufficient funds have been allocated in the Fiscal Year 2016/18 Budget, Environmental
Laboratory and Ocean Monitoring Operating Budget (Section 6, Page 48). Project
contingency funds will not be used for this contract.
ATTACHMENT
The following attachmentla) maybe viewed on-line at the OCSD website (www.ocsd.com) with the
complete agenda package:
• Sole Source Service Contract Justification and Quote
Page 2 of 2
• Om
June 29, 2016
MEMORANDUM
TO: Robert P. Ghirelli, D.Env.
Assistant General Manager
From: Ron Coss,
Environmental Laboratory and Ocean Monitoring Division Manager
FROM: DR. Danny Tang
Scientist
SUBJECT: Sole Source Justification for Service Contract to Dr. Chris Lowe for Fish
Tracking Study
The District's Ocean Monitoring Program (OMP) assesses discharge effects on marine
communities, including analyses of tissue contamination levels in hornyhead turbot,
English sole and rockfishes (e.g. CA scorpionfish) relative to background levels and
human health consumption guidelines. In making these comparisons it is assumed that
the location of capture is also the location of exposure. However, little is known about
the movement patterns of the fish species used in the OMP. As such, a fish tracking
study is needed to understand the site fidelity and potential risk exposure of the fishes
used in the OMP. A sole source to Dr. Chris Lowe at California State University, Long
Beach for the study of fish movement patterns is required because he is the local
expert in this field of study. Dr. Lowe has studied the movement patterns of a wide
variety of southern California fishes, including those residing near the Los Angeles
County Sanitation District's outfall. The proposed study will use passive acoustic
telemetry tracking (Vemco VPS system)to quantify fine-scale, longer-term movements
of tagged adult homyhead turbot, CA scorpionfish, and English sole within a 4.8 km2
area surrounding the District's 120-inch outfall and a 2.3 km2 area around an upcoast
reference site.
This service contract will cover the salary for one graduate student, fish tagging
materials, and boat fuel. The contractor will also submit a final report to the District as
well as publish the findings in a peer-reviewed journal. The contract coverage is from
August 1, 2016 to June 30, 2018 at a cost not to exceed $200,000.
Sole source memo—Chris Lowe(CSULB)_May2016
Budget
OCSD Fish Trackin¢Sud¢et
8/1/16-6/30/17 )/1/1)E/30/18 IlProject Total
Salaries&Fringe Benefits:
Lowe 0.93 months $ 11,375 - $ 11,375
Fringe(8.85%) $ 1,006 $ 1,006
Burns(graduate student) 1450 hrs(yr 1);500 hrs(yr 2)at$18/hr $ 26,101 $ *9,1g0 $ 35,281
Fringe(10.68%) $ 2,788 $ 980 $ 3,768
Salaries&Fringe Total $ 41,270 $ 10,160 $ 51,430
Travel:
Domestic travel to conferences(air,hotel,registration) $ 3,000 is 2,000 $ 5,000
Travel Total 15 3,000 is 2,000 5 51000
Mae rialsand Suoolies,
coded acoustic transmitters(V9-2H,150 at 5400) $ 60,000 - $ 60,000
synch tap(V16,14 at 5400) $ 5,600 $ 5,600
reference lags(V9,30 at$400) $ 4,000 $ 4,000
VPS rendering(1 year,3 downloads) $ 14,000 $ 14,000
surgical supplies $ Soo $ Boo
boat Net $ 3,000 - $ 3,000
acoustic release batteries(36 at$100) $ 3,600 $ 3,600
acoustic release burnwires(162 at$8) $ 1,300 $ 1,300
mooring supplies $ 1,200 $ 1,200
field notebook $ Soo $ 500
acoustic receiver batteries(40 at$2)) $ 1,og0 - $ 1,080
acoustic release,(6 at$870) IS 5,220 - 5 5,220
Materials and Supplies Total $ 100,300 $ 100,300
other:
Publication costs - $ 2,000 $ 2,000
Other Total $ 2,000 $ 2,000
Total Direct Costs $ 144,570 $ 14,160 5 158,730
Indirect Costs/overhead(26%of Total Direct Costs) $ 37,588 $ 3,682 $ 41,270
Total Costs $ 182,158 $ 17,842 $ 200,000
❑there is a 2%salary escalator for the graduate student during year 2.
OPERATIONS COMMITTEE Meng D310 TOBE. Dir.
07/lti06/16 07/27/1Or6
AGENDA REPORT Item Item Number
3
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: James E. Colston, Director of Environmental Services
SUBJECT: MONTEREY BAY AQUARIUM RESEARCH INSTITUTE OCEAN
ACIDIFICATION AND HYPDXIA MOORING SUPPORT
GENERAL MANAGER'S RECOMMENDATION
Approve a Service Agreementto the Monterey Bay Aquarium Research Institute(MBARI)
to provide technical support and training to District staff to develop the in-house ability to
operate, service, and maintain the Orange County Sanitation District's Ocean
Acidification and Hypoxia mooring for the period of July 1, 2016 to June 30, 2017, for an
amount not to exceed $120,000 with the option of four (4) one-year renewals.
BACKGROUND
The Orange County Sanitation District (Sanitation District) is required under its ocean
discharge permit and the California Ocean Plan to meet discharge compliance limits for
acidity (pH)and oxygen levels. In 2013, the Sanitation District, along with the City of Los
Angeles, County Sanitation Districts of Los Angeles, and the City of San Diego, in
cooperation with the Southern California Coastal Water Research Project, agreed to
undertake long-term regional monitoring of pH and oxygen along the coast in order to
better understand their spatial and temporal variability along the Southern California
coast. Sampling platforms include vessels and moored instrument packages.
Impacts of Ocean Acidification and Hypoxia, or low oxygen, (OAH) in the coastal zone
have been documented along the West Coast since the mid-2000s. California, Oregon,
and Washington recognized the potential threats associated with OAH, and in 2012 a
scientific review panel to provide state regulators with up-to-date knowledge management
actions.
OAH moorings are not commercially available and need to be custom made for the
requirements of the operator, in this case the Sanitation District. MBARI has developed
and deployed similar moorings in Monterey Bay and off Baja California, Mexico. In 2014,
the Sanitation District selected MBARI to help with the design, construction, and
deployment of an OAH mooring. The Sanitation District's mooring was deployed in
December 2015 and integrates standard oceanographic (e.g., temperature) and custom-
developed (e.g., pH) sensors.
The proposed contract with MBARI involves continued technical support for the mooring
and technology transfer via training for Sanitation District staff to be able to fully support
the mooring with in-house resources. It is expected that as internal staff expertise
Page 1 of 3
increases, external MBARI support will decrease over time with future expenditures
estimated not to exceed $50,000.00.
RELEVANT STANDARDS
• Comply with the Clean Water Act
• Meet discharge permit 24/7/365
PROBLEM
The Sanitation District discharges treated effluent into the coastal zone. The Sanitation
District's ocean discharge permit mandates that we meet compliance standards with
physical, chemical, and biological state and federal environmental criteria.
PROPOSED SOLUTION
The OAH mooring allows the Sanitation District to better understand the temporal
variability of pH and oxygen near our ocean discharge. This information will allow us to
better understand potential impacts to organisms exposed to our discharge in a changing
coastal environment. This information will also be of use to state and federal
environmental managers in considering new and revised receiving water criteria.Without
this information, regulators will not be able to include our local findings in proposed
discharge limits (e.g., nutrient removal) and the Sanitation District will not have the
science available to respond to these proposals.
The permit also mandates the Sanitation District to conduct Strategic Process Studies
(SPS) that address environmental issues in the receiving environment. This mooring
project meets the permit-required SPS criteria.
TIMING CONCERNS
The Sanitation District OAH mooring is operational, and staff needs continued MBARI
support and training to service the mooring and its suite of sensors.
RAMIFICATIONS OF NOT TAKING ACTION
The Sanitation District will not meet the requirements of its ocean discharge permit to
conduct a Special Study on OAH. Sanitation District staff will not be able to effectively
service and maintain the OAH mooring.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
N/A
Page 2 of 3
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance OCSD - 47.
Sufficient funds have been allocated in the Proposed Fiscal Year 2016-2017
Environmental Laboratory and Ocean Monitoring Capital Equipment Budget (Section 8,
Page 103-108).
Date of AoDroval Contract Amount Contincencv
07/27/2016 $120,000.00 N/A
ATTACHMENT
The following attachment(s) maybe viewed on-line at the OCSD website (wwwocsd.com) with the
complete agenda package:
• Service Agreement
Page 3 of 3
SERVICE AGREEMENT
Ocean Acidification and Hypoxia Mooring
In Southern California Bight
THIS AGREEMENT is made and entered into as of the date fully executed below, by and between
Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue,
Fountain Valley, CA 92708-7018(hereinafter referred to as"OCSD")and Monterey Bay Aquarium
Research Institute with a principal place of business at 7700 Sandholdt Road, Moss Landing, CA
95039-9644 (hereinafter referred to as "MBARI") collectively referred to as the "Parties" or
separately as a "Party'.
WITNESSETH
WHEREAS, based on MBARI's expertise and experience, OCSD wishes to temporarily engage
MBARI to provide Ocean Acidification and Hypoxia Mooring In Southern California Bight
("Services") as described in Exhibit"A"; and
WHEREAS, MBARI submitted a proposal for Services (attached hereto and incorporated herein
by reference as Exhibit"A"); and
WHEREAS, on July 27, 2016, the Board of Directors of OCSD, by minute order, authorized
execution of this Agreement between OCSD and MBARI; and
WHEREAS, OCSD has chosen MBARI to conduct Services in accordance with Ordinance No.
OCSD-47; and
NOW, THEREFORE, in consideration of the mutual promises and mutual benefits exchanged
between the Parties, the Parties mutually agree as follows:
2. Introduction
1.1 This Agreement and all exhibits hereto (called the "Agreement") is made by OCSD and
MBARI. The Terms and Conditions herein exclusively govern the purchase of Services as
described in the MBARI's Proposal, attached hereto and incorporated herein by reference as
Exhibit"A".
1.2 Exhibits to this Agreement are incorporated by reference and made apart of this Agreement
as though fully set forth at length herein. Exhibits to this Agreement are as follows in order of
precedence:
Exhibit"A" MBARI's Proposal dated May 26, 2016
Exhibit"B" Not Used
1.3 In the event of any conflict or inconsistency between the provisions of this Agreement and
any of the provisions of the exhibits hereto, the provisions of this Agreement shall in all respects
govern and control.
1.4 This Agreement may not be modified, changed or supplemented, nor may any obligations
hereunder be waived or extensions of time for performance granted, except by written instrument
signed by both Parties.
1.5 The various headings in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any Paragraph or provision hereof.
Orange County Sanitation District 1 of 8 Service Agreement
1.6 The term "days", when used in the Agreement, shall mean calendar days, unless otherwise
noted as workdays.
1.7 The term "workday". Workdays are defined as all days that are not Saturday, Sunday, or
legally observed holidays. Meetings with OCSD staff shall be scheduled from Monday through
Thursday between the hours of 8AM and 4PM (exception is operations staff who maintain plant
operations 2417 and work a rotated 12-hour shift) and shall conform to OCSD work schedules.
OCSD review periods shall not include legally observed holidays.
1.8 OCSD holidays (non-working days) are as follows: New Year's Day, Lincoln's Birthday,
Presidents' Day Monday, Memorial Day Monday, Independence Day, Labor Day Monday,
Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day.
1.9 Work Hours: The work required under this Agreement may include normal Business hours,
evenings, and weekends. OCSD will not pay Travel Time.
1.10 MBARI shall provide OCSD with all required premiums and/or overtime work at no charge
beyond the price provided in Section 5, Compensation.
1.11 Except as expressly provided otherwise, OCSD accepts no liability for any expenses,
losses, or action incurred or undertaken by MBARI as a result of work performed in anticipation
of purchases of said services by OCSD.
3. Scope of Work Subject to the terms of this Agreement, MBARI shall perform the Services
identified in Exhibit"A". MBARI warrants that all of its Services shall be performed in a competent,
professional and satisfactory manner.
4. Modifications to Scope of Work Requests for modifications to the Scope of Work
hereunder can be made by OCSD at any time. All modifications must be made in writing and
signed by both Parties. A review of the time required for the modification will be made by OCSD
and MBARI and the Agreement period adjusted accordingly.
5. Compensation Compensation to be paid by OCSD to MBARI for the Services provided
under this Agreement shall be a total amount not to exceed One Hundred Twenty Thousand
Dollars ($120,000.00)for the first year of the Agreement.
6. Payment and Invoicing
6.1 MBARI shall be paid by OCSD upon approval by OCSD Project Manager, George
Robertson or his designee, of invoices submitted for tasks completed as outlined in Exhibit "A.
OCSD, at its sole discretion, shall be the determining party as to whether the Services have been
satisfactorily completed.
6.2 Invoices shall be emailed by MBARI to OCSD Accounts Payable at APStaff(tDOCSD.com
and reference the following in the subject line: "INVOICE" and the Purchase Order Number.
7. Audit Rights MBARI agrees that, during the term of this Agreement and for a period of
three (3) years after its termination, OCSD shall have access to and the right to examine with
reasonable notice any directly pertinent books, documents, and records of MBARI relating to the
invoices submitted by MBARI pursuant to this Agreement.
8. Commencement and Term The Services to be provided by MBARI under this Agreement
shall commence on August 1, 2016 (Effective Date), and be completed on July 31, 2017.
Orange County Sanitation District 2 of 8 Service Agreement
9. Renewals
9.1 OCSD may exercise the option to renew the Agreement for up to four(4) one-year periods
based upon the criteria set forth in Exhibit "A", under the terms and conditions contained herein.
OCSD shall make no obligation to renew nor give reason if it elects not to renew.
9.2 Renewals may be made through the OCSD Purchase Order Process.
10. Extensions The Term of this Agreement may be extended only by written instrument
signed by both Parties.
11. Termination
11.1 Either Party may terminate this Agreement for its convenience, with or without cause, in
whole or in part, at anytime, by written notice to the other Party(delivered by certified mail, return
receipt requested) of intent to terminate. Upon receipt of a termination notice, MBARI shall
promptly discontinue all work under this Agreement(unless the notice directs otherwise). OCSD
shall thereafter, within thirty (30) days, pay MBARI for work performed (cost and fee)to the date
of termination and any unrancellable obligations incurred prior to receiving the written notice of
termination. MBARI expressly waives any claim to receive anticipated profits to be earned during
the uncompleted portion of this Agreement.
11.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD's
determination that MBARI is not meeting specification requirements, if the level of service is
inadequate, or any other default of this Agreement.
11.3 OCSD may also immediately cancel for default of this Agreement in whole or in part by
written notice to MBARI:
• if MBARI becomes insolvent or files a petition under the Bankruptcy Act; or
• if MBARI sells its business; or
• if MBARI breaches any of the terms of this Agreement; or
• if total amount of compensation exceeds the amount authorized under this Agreement.
11.4 All OCSD property in the possession or control of MBARI and provided to MBARI by OCSD
specifically for the performance of this Agreement shall be returned by MBARI to OCSD upon the
termination of this Agreement.
12. Indemnification and Hold Harmless Provision Each Party agrees to save, indemnify,
defend and hold harmless the other Party, its officers, employees and agents against any and all
liability, claims,judgments, cost and demands, including demands arising from injuries or death
of persons and damage to property, arising directly out of the performance of this Agreement but
only in proportion to and to the extent such liability, claims, judgments, costs and demands are
caused by or result from the negligence or willful misconduct of the indemnifying Party, its
employees or agents, in relation to the rendition of Services pursuant to this Agreement
13. Insurance MBARI is a self-insured non-profit organization. MBARI shall maintain,
throughout the life of this Agreement and any periods of warranty or extensions, self-insurance in
amounts sufficient to full its obligations under this Agreement. Failure to maintain required
self-insurance coverage shall result in termination of this Agreement upon written notice of
termination as required under Section 11 of this Agreement. MBARI shall provide evidence of
insurance to OCSD upon request.
Orange County Sanitation District 3 of 8 Service Agreement
14. Ownership of Intellectual Property
14.1 MBARI agrees that the reports delivered by MBARI to OCSD in the performance of the
Services detailed in Exhibit"A" of this Agreement(hereinafter referred to as "Deliverables") shall
be and are assigned to OCSD as its sole and exclusive property. Notwithstanding the foregoing,
MBARI shall retain the unrestricted right to use such Deliverables for academic purposes
consistent with MBARI's mission as an academic and research institution.
14.2 "Invention" shall mean any patentable invention conceived and first actually reduced to
practice in the performance of the Services detailed in Exhibit"A"of this Agreement.
14.3 Ownership of Inventions. Inventorship shall be determined in accordance with U.S. Patent
Law. All rights to Inventions made solely by employees of OCSD shall belong solely to OCSD
("OCSD Invention"). All rights to Inventions made solely by employees of MBARI shall belong
solely to MBARI ("MBARI Invention"). All rights to Inventions made jointly by employees of MBARI
and employees of OCSD ("Joint Inventions")shall be jointly owned.
14.4 Nothing contained in this Agreement shall be deemed to grant either directly or by
implication, estoppel, or otherwise any license under any patents, patent applications, or other
proprietary interests to any other invention, discovery, or improvement of either Party
15. Use of Name OCSD agrees that it will not use the names of MBARI or its employees in
any advertisement, press release or publicity with reference to this Agreement without the prior
written approval of MBARI. MBARI shall have the right to acknowledge OCSD's support of the
Services performed under this Agreement in scientific publications and other scientific
communications.
16. Independent Contractor Capacity
16.1 The relationship of MBARI to OCSD is that of an independent contractor and nothing herein
shall be construed as creating an employment or agency relationship.
16.2 MBARI shall act independently and not as an officer or employee of OCSD. OCSD assumes
no liability for MBARI's action and performance, nor assumes responsibility for taxes, funds,
payments or other commitments, implied or expressed, by or for MBARI.
16.3 MBARI shall not be considered an agent of OCSD for any purpose whatsoever, nor shall
MBARI have the right to, and shall not, commit OCSD to any agreement, contract or undertaking.
MBARI shall not use OCSD's name in its promotional material or for any advertising or publicity
purposes without expressed written consent.
16.4 MBARI shall not be entitled to any benefits accorded to those individuals listed on OCSD's
payroll as regular employees including, without limitation, worker's compensation, disability
insurance, vacation, holiday or sick pay. MBARI shall be responsible for providing, at MBARI's
expense, disability, worker's compensation or other insurance as well as licenses and permits
usual or necessary for conducting the Services hereunder.
16.5 MBARI shall be obligated to pay any and all applicable local, state and federal payroll and
other taxes incurred as a result of fees hereunder. MBARI hereby indemnifies OCSD for any
claims, losses, costs, fees, liabilities, damages or penalties suffered by OCSD arising out of
MBARI's breach of this provision.
16.6 MBARI shall not be eligible to join or participate in any benefit plans offered to those
individuals listed on OCSD's payroll as regular employees. MBARI shall remain ineligible for such
benefits or participation in such benefit plans even if a court later decides that OCSD misclass'fiied
MBARI for tax purposes.
Orange County Sanitation District 4 of 8 Service Agreement
17. Licenses, Permits MBARI represents and warrants to OCSD that it has obtained all
licenses, permits, qualification and approvals of whatever nature that are legally required to
engage in this work. Any and all fees required by State, County, City and/or municipal laws,
codes and/or tariffs that pertain to work performed under the terms of this Agreement will be paid
by MBARI.
18. MBARI's Representations In the performance of duties under this Agreement, MBARI
shall adhere to the highest fiduciary standards, ethical practices and standards of care and
competence for their trade/profession. MBARI agrees to comply with all applicable Federal, State
and local laws and regulations.
19. Familiarity with Work By executing this Agreement, MBARI warrants that: 1) it has
investigated the work to be performed; 2) it has investigated the site of the work and is aware of
all conditions there; and 3) it understands the facilities, difficulties and restrictions of the work
under this Agreement. Should MBARI discover any latent or unknown conditions materially
differing from those inherent in the work or as represented by OCSD, it shall immediately inform
OCSD of this and shall not proceed, except at MBARI's risk, until written instructions are received
from OCSD.
20. Right to Review Services. Facilities. and Records
20.1 OCSD reserves the right to review any portion of the Services performed by MBARI under
this Agreement, and MBARI agrees to reasonably cooperate with OCSD's review.
20.2 MBARI shall furnish to OCSD such reports, statistical data, and other information pertaining
to MBARI's Services as required to meet the requirements of Exhibit"A".
20.3 The right of OCSD to review the Services shall not relieve MBARI of any obligation set forth
herein.
21. Force Maieure Neither party shall be liable for delays caused by accident, flood, acts of
God, fire, labor trouble, war, acts of government or any other cause beyond its control, but said
party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force
Majeure condition may be rescheduled by mutual consent or may be eliminated from the
Agreement.
22. Severability If any section, subsection, or provision of this Agreement, or any agreement
or instrument contemplated hereby, or the application of such section, subsection, or provision is
held invalid, the remainder of this Agreement or instrument in the application of such section,
subsection or provision to persons or circumstances other than those to which it is held invalid,
shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate
the expectations of the Parties.
23. Waiver The waiver of either party of any breach or violation of, or default under, any
provision of this Agreement, shall not be deemed a continuing waiver by such party of any other
provision or of any subsequent breach or violation of this Agreement or default thereunder. Any
breach by MBARI to which OCSD does not object shall not operate as a waiver of OCSD's rights
to seek remedies available to it for any subsequent breach.
24. Governing Law This Agreement shall be governed by and interpreted under the laws of
the State of California and the Parties submit to jurisdiction in Orange County, in the event any
action is brought in connection with this Agreement or the performance thereof.
25. Attorney's Fees If any action at law or inequity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this
Orange County Sanitation District 5 of 8 Service Agreement
Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which he may be entitled.
26. Dispute Resolution
26.1 In the event of a dispute as to the construction or interpretation of this Agreement, or any
rights or obligations hereunder, the Parties shall use their best efforts to settle the dispute, claim,
question, or disagreement. To this effect,they shall consult and negotiate with each other in good
faith and recognizing their mutual interests, attempt to reach a just and equitable solution
satisfactory to both parties. If they do not reach solution within a period of sixty (60) days, they
shall attempt, in good faith, to resolve the dispute by mediation. The Parties shall mutually select
a mediator to facilitate the resolution of the dispute. If the Parties are unable to agree on a
mediator, the mediation shall be conducted in accordance with the Commercial Mediation Rules
of the American Arbitration Agreement, through the alternate dispute resolution procedures of
Judicial Arbitration through Mediation Services of Orange County ("JAMS"), or any similar
organization or entity conducting an alternate dispute resolution process.
26.2 In the event the Parties are unable to timely resolve the dispute through mediation, the
issues in dispute may be submitted to arbitration pursuant to California Code of Civil Procedure,
Part 3, Title 9, Sections 1280 et seq. For such purpose, an agreed arbitrator shall be selected,
or in the absence of agreement, each party shall select an arbitrator, and those two arbitrators
shall select a third. Discovery may be conducted in connection with the arbitration proceeding
pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator,orthree arbitrators
acting as a board, shall take such evidence and make such investigation as deemed appropriate
and shall render a written decision on the matter in question. The arbitrator shall decide each
and every dispute in accordance with the laws of the State of California. Arbitration-related costs
shall be borne by the parties as follows: 1) the AAA's administrative fees, including the arbitrator
fees, shall be borne equally by the parties; 2) the expense of a stenographer shall be borne by
the party requesting a stenographic record; 3)witness expenses for either side shall be borne by
the party producing or requesting the production of the witness; 4) each party shall bear the cost
of its own travel expenses; and 5) all other expenses shall be borne by the party incurring the
expense. The arbitrator's decision and award shall be subject to review for errors of fact or law
in the Superior Court for the County of Orange, with a right of appeal from any judgment issued
therein. As an alternative to arbitration, either Party may choose to submit the issues in dispute
to the Superior Court for the County of Orange.
27. Damage to OCSD's Property Any OCSD property damaged by MBARI in the performance
of this Agreement will be subject to repair or replacement by MBARI at no cost to OCSD. Any
MBARI property damaged by the sole negligence of OCSD in the performance of this Agreement
will be subject to repair or replacement by OCSD at no cost to MBARI.
28. Smoking Smoking is only allowed in designated areas. Smoking is not allowed in any
building, electrically classified area or process area where methane gas may be present. Lack of
compliance with OCSD Smoking policy will be cause for removal of offending personnel from the
site.
29. Drug-Free Workplace MBARI and all its employees and subconsultants must adhere to
the California Drug-Free Workplace Act, Sections 8350 through 8357.
30. OCSD Safety and Human Resources Policies OCSD requires all contractors and
consultants to follow and ensure their employees and all subcontractors follow all State and
Federal regulations as well as OCSD requirements while working at OCSD locations. If during
the course of a contract it is discovered that OCSD policies, safety manuals, or contracts do not
comply with State or Federal regulations then the MBARI is required to follow the most stringent
Orange County Sanitation District 6 of 8 Service Agreement
regulatory requirement at no cost to OCSD. MBARI and all their employees and subcontractors,
shall adhere to all applicable OCSD Safety and Human Resources Policies found at: OCSD.com,
"Doc Central" (bottom of page), under"Safety'. OCSD's Safety Standards and Human Resource
Policies are hereby incorporated by reference as though fully set forth herein.
31. Training Certification When required by regulation, certificates of training shall be
maintained on-site for the duration of the activity that requires an employee to be
certified. Certificates shall be current. Lack of certificates when required will be cause for removal
of offending personnel form the site, termination of the Agreement, or both.
32. Assignments MBARI shall not delegate any duties nor assign any rights under this
Agreement without the prior written consent of OCSD. Any such attempted delegation or
assignment shall be void.
33. Conflict of Interest and Reporting
33.1 MBARI shall at all times avoid conflict of interest or appearance of conflict of interest in
performance of this Agreement.
33.2 MBARI affirms that to the best of its knowledge there exists no actual or potential conflict
between MBARI's families, business or financial interest or its Services under this Agreement,
and in the event of change in either its private interests or Services under this Agreement, it will
raise with OCSD any question regarding possible conflict of interest which may arise as a result
of such change.
34. Third Party Rights Nothing in this Agreement shall be construed to give any rights or
benefits to anyone other than OCSD and MBARI.
35. Non-Liability of OCSD Officers and Employees No officer or employee of OCSD shall
be personally liable to MBARI, or any successor-in-interest, in the event of any default or breach
by OCSD or for any amount which may become due to MBARI or to its successor, or for breach
of any obligation of the terms of this Agreement.
36. Authority to Execute The persons executing this Agreement on behalf of the Parties
warrant that they are duly authorized to execute this Agreement and that by executing this
Agreement, the Parties are formally bound.
37. Read and Understood By signing this Agreement, MBARI represents that he has read and
understood the terms and conditions of the Agreement.
38. Entire Agreement This Agreement constitutes the entire agreement of the Parties and
supersedes all prior written or oral and all contemporaneous oral agreements, understandings,
and negotiations between the Parties with respect to the subject matter hereof.
Orange County Sanitation District 7 of 8 Service Agreement
39. Notices All notices under this Agreement must be in writing. Written notice shall be
delivered by personal service or sent by registered or certified mail, postage prepaid, return
receipt requested, or by any other overnight delivery service which delivers to the noticed
destination and provides proof of delivery to the sender. Any facsimile notice must be followed
within three(3)days by written notice. Rejection or other refusal to accept or the inability to deliver
because of changed address for which no notice was given as provided hereunder shall be
deemed to be receipt of the notice, demand or request sent. All notices shall be effective when
first received at the following addresses:
OCSD: Ludwig R. Lapus
Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
MBARI: Basilio Martinez, CFO
Monterey Bay Aquarium Research Institute
7700 Sandholdt Rd
Moss Landing, CA 95039-9644
Each party shall provide the other party written notice of any change in address as soon as
practicable.
IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this
Agreement to be signed by the duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT
Dated: By:
Chair, Board of Directors
Dated: By:
Clerk of the Board
Dated: By:
Contracts, Purchasing and Materials
Management Division Manager
COMPANY
Dated: By:
Print Name and Title of Officer
IRS Employer's I.D. Number
Orange County Sanitation District 8 of 8 Service Agreement
ATTACHMENT "A"
MBARI's Proposal dated May 26, 2016
May 26, 2016
Proposal to Orange County Sanitation District(OCSD) from the Monterey Bay
Aquarium Research Institute (MBARI)
Title: Ocean acidification and hypoxia moorings in the Southern California Bight
Proposal period:August 1, 2016-July 31, 2017
Principal Investigator: Francisco Chavez
Background
Ocean acidification (OA) and hypoxia have been identified as threats to coastal
ecosystems along the California coast. Ocean acidification,the slow absorption of
fossil fuel derived atmospheric carbon dioxide,has been measured along the
California coast and is occurring at about 2-3 pion CO2 per year.This slow uptake is
decreasing ocean pH at about the rate of about 0.03 pH units per decade.At the
same time oxygen in subsurface waters along the entire west coast is decreasing,
most rapidly in the waters that are recruited by upwelling and mixing(40-200
meters depth).The processes causing this decline are several-fold but poorly
constrained: 1) increases in surface primary productivity and vertical flux of organic
material to depth; 2) a decrease in the ventilation of intermediate waters from
higher well-oxygenated waters,and 3) a shallower thermocline and oxycline. Both
'natural"nutrient enrichment processes and/or human induced eutrophication can
drive an increase in primary production and vertical carbon flux. A corollary of the
decline in oxygen is that carbon dioxide and other inorganic nutrients such as
nitrate are increasing.The increase in carbon dioxide acts to further decrease pH.
Upwelling of water with higher nitrate further fuels primary production.OCSD
oversees the release of treated sewage into the ocean and these treated waters
contain nutrients that can fuel primary production,it is of great interest to OCSD to
monitor changing ocean chemistry.While local chemical conditions are of interest,
knowing if the local patterns are associated with large-scale changes is of great
value.Therefore, if the local monitoring is part of a larger scale array,the value of
the local effort is greatly increased.
Orange County Sanitation District Interest
The Orange County Sanitation District(OCSD) discharges highly treated effluent off
the southern portion of the San Pedro Shelf As a requirement of its NPDES
discharge permit, OCSD and the other large southern California dischargers, conduct
an extensive water quality monitoring program that evaluates the potential impacts
from this discharge to pH and oxygen in the receiving waters. Both pH and oxygen
have compliance limits contained in the California Ocean Plan that all dischargers
are required to meet. To better determine local impacts from outfall discharges,the
four large southern California dischargers - City of Los Angeles,Sanitation Districts
of Los Angeles County, City of San Diego,and OCSD -are all working collaboratively
to begin better measurements of pH and oxygen around their local outfalls. This
proposed effort is aimed toward assisting OCSD in this endeavor.
MBARI Expertise
MBARI has been collaborating with the ocean acidification (OA) and hypoxia
community to first develop and then deploy small coastal moorings from Monterey
Bay to Baja California beginning in 2009.We propose to continue a successful
collaboration with OCSD started two years ago. During that time MBARI and OCSD
collaboratively built and deployed an OA and hypoxia mooring.Under this proposal
we will assist them in building a second mooring and continue support of the
existing one.MBARI tasks associated with this proposal are listed below
("deliverables').
DELIVERABLES:
1) Build a mooring controller,power and telemetry system.This includes
electronics,software and hardware.
2) Change the mooring telemetry from satellite to cellular.
3) Train OCSD personnel to fully support the mooring including building and
calibrating pH sensors,and calibrating the pCOz system.
4) Hosting the data and posting quality control graphs on the internet.
5) Assisting and training OCSD personnel with quality control and data analysis.
OCSD will directly purchase the necessary hardware to construct a fully operational
buoy with the exception of the elements above.All mooring components,including
those provided by MBARI will become the sole property of OCSD.
In the ensuing years, MBARI will continue to support OCSD staff as it transitions to
full operation of its OA moorings. MBARI tasks will include:
1) Initial data QA of data prior to posting on the web.This includes: a.
Diagnostics and b. Summary figures.
2) Hosting OA mooring data.
3) Continuation of OCSD staff training and transfer MBARI data QA techniques
to OCSD
4) Providing technical assistance/troubleshooting support as needed.
There is no binding commitment from MBARI or OCSD to out years.
0
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Sea Level Sea Tavel
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SM 161M Inductive 30nn
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Figure 1.Proposed schematic of buoy for Orange County Sanitation District
Budget
Year 1 - $120,000
MBARI OA Mooring Budget
Research Technician $31,000
Fringe Benefits $17,670
Supplies $29,300
Travel $1,500
Total Direct Costs $79,470
MTDC $79,470
Indirect Costs 51% $40,530
TOTAL $120,000
OPERATIONS COMMITTEE MaaHngDae TOBd.ofDir.
07/O6/16 07/27/16
AGENDA REPORT ItemNumber Item Number
a
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: James E. Colston, Director of Environmental Services
SUBJECT: INLAND EMPIRE REGIONAL COMPOSTING AUTHORITY CONTRACT
AMENDMENT 2015-2016
GENERAL MANAGER'S RECOMMENDATION
Approve Contract Amendment number 4600001879-001 with Inland Empire Regional
Composting Authority (IERCA) for the Orange County Sanitation District to 1) use farm
bed trailers to transport biosolids to the Inland Empire Regional Composting Facility, and
2) pay to IERCA for biosolids received and processed at a base fee of $55.00 per wet
ton, plus an administrative fee of $2.00 per wet ton and any other adjustments provided
for in the original. This Contract Amendment shall serve as the first annual renewal of
three one-year renewal options of the original agreement in a total annual amount not to
exceed $900,000/year for IERCA to receive and compost up to 50 wet tons per day
(Monday thru Friday) of OCSD's biosolids.
BACKGROUND
On June 1, 2015, Orange County Sanitation District (Sanitation District) executed an
agreement with IERCA to receive and compost up to 50 wet tons per day of biosolids at
a tipping fee of $54 per wet ton and an administrative fee of$2 per wet ton exclusive of
trucking costs. The agreement term was for one-year commencing on the date of
execution of the agreement, with three one-year renewal options in a total annual amount
not to exceed $900,000/per year.
IERCA intends to exercise the first annual renewal and section 7.3 of the original
agreement to adjust the tipping fee from $54 per wet tons of biosolids to $55 per wet tons
of biosolids, which is a $1 per ton increase. The administrative fee of $2 per wet ton of
biosolids remains the same. With a hauling fee of$14.99 per ton (services provided by
Denali contract executed on May 3, 2016), the total cost is $71.99 per ton.
In addition to the fee adjustment, IERCA is requiring the Sanitation District to use farm
bed trailers to transport biosolids to the Inland Empire Regional Composting Facility. The
Sanitation District's current hauler (Denali) meets the trailer specifications.
RELEVANT STANDARDS
• Ocean Discharge Permit, NPDES CA0110604 §VI.C.4.b Sludge (Biosolids)
Requirements
Page 1 of 3
• Resolution No. OCSD 13-03 Biosolids Recycling Policy
• Safe beneficial reuse of Biosolids
PROBLEM
The existing contract agreement between IERCA and the Sanitation District has expired.
The Sanitation District is currently not sending biosolids to IERCA's compost facility,
which lessens the biosolids management diversity.
PROPOSED SOLUTION
Approve contract amendment to continue biosolids management diversity and
sustainability while supporting a local, in-basin management option.
TIMING CONCERNS
IECRA provided a contract amendment on June 10, 2016, nine (9)days after the original
contract expired on June 1, 2016. Presently, the Sanitation District is not sending
biosolids to IECRA.
RAMIFICATIONS OF NOT TAKING ACTION
The Sanitation District will not be able to utilize this local biosolids management option
that is within the basin.
PRIOR COMMITTEE/BOARD ACTIONS
May 27, 2015 — Approved an Agreement with Inland Empire Regional Composting
Authority(IERCA)to receive and compost up to 50 wet tons per day of the Orange County
Sanitation District's Class B biosolids.
ADDITIONAL INFORMATION
N/A
CEQA
CEQA Analysis Reference: 1) November 7, 2012 Agenda Report - Waste Disposal
Agreement with Orange County Waste and Recycling, and May 27, 2015 Agenda Report
— Composting Agreement with Inland Empire Regional Composting Authority.
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted. (Line item: Section 6, Page 84). Project
contingency funds will not be used for this amendment.
Page 2 of 3
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package:
• Contract Amendment
• Original Contract
Page 3 of 3
INLAND EMPIRE REGIONAL
COMPOSTING
A U T H O R I T Y
CONTRACT AMENDMENT NUMBER: 4600001879.001
TO
CONTRACT NUMBER: 4600001879
FOR
THE REUSE OF BIOSOLIDS
THIS CONTRACT AMENDMENT NUMBER 4600001879-001, is made and entered into this
day of , 2016, by and between the Inland Empire Regional
Composting Authority, a Joint Powers Authority, 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
"Authority"or"IERCF"), and the Orange County Sanitation District("the District')shall revise the
Contract as follows:
REVISE SECTION 2. BIOSOLIDS TRANSPORTATION AND REUSE, TO READ:
Strike all of the current text of Section 2.4; replacing it with:
'2.4 The District shall use farm bed trailers to transport Biosolids to the Site. Trailers
delivering Biosolids to the Site must meet the following clearance specifications to
off-load material into the biosolids hoppers:'
Strike all of the current text of Section 2.4.2 (because it is specific to end dump trailers).
REVISE SECTION 7. FEE FOR BIOSOLIDS REUSE, TO READ:
Strike all of the current text of Section 7.1; replacing it with:
"7.1 The District shall pay to the Authority for Biosolids, received and processed, at a
base fee of$55.00 per wet ton, plus an administrative fee of $2.00 per wet ton,
and any other adjustments provided for in this Agreement. The District shall pay
all hauling and transportation-related costs."
REVISE SECTION 12, DURATION OF AGREEMENT, ADDING A PARAGRAPH TO READ:
Effective with full execution of Contract Amendment Number 4600001879-001, this Agreement
will continue in effect for a period of one (more)year; until June 1, 2017. The Parties may, upon
mutual written agreement, extend the duration of the Agreement on a year-to-year basis with up
to two more annual extensions.
Contract Amendment Number 4600001879-001 HD 1 of 2
6/10/2016
AS WITNESS HEREOF, the parties hereto have caused the Contract to be entered as of the
day and year written above.
INLAND EMPIRE REGIONAL ORANGE COUNTY SANITATION DISTRICT:
COMPOSTING AUTHORITY:
Jeff Ziegenbein (Date) John Nielson (Date)
Project Manager Chair of the Board of Directors
Kelly Lore (Date)
Clerk of the Board
Contract Amendment Number 4600001879-001 HD 2 of 2
6/10/2016
� 1
INLAND EMPIRE REGIONAL
COMPOSTING
A U T H O R I T Y
AGREEMENT NUMBER 4600001879
FOR
THE REUSE OF BIOSOLIDS
This Agreement, for the Reuse of Biosolids ("Agreement"), dated �,nne (1 2or5.
2015 ("Effective Date"), and is between the Inland Empire Regional Composting Authority
(IERCA, or 'the Authority") and the Orange County Sanitation District ("the District"). The
Authority and the District are referred to in this Agreement collectively as "the Parties."
The Authority is a Joint Powers Authority formed by and between the Inland Empire
Utilities Agency (IEUA), a Municipal Water District organized and operating pursuant to the
California Water Code Sections 71000, er seq., and County Sanitation District No. 2 of Los
Angeles County (LACSD), a special district organized and operating pursuant to the California
Health and Safety Code Sections 4700,el seq.
The Authority operates the Inland Empire Regional Composting Facility(IERCF) located
at 12645 Sixth Street, Rancho Cucamonga, CA 91739 ("the Site").The Authority has all permits
and approvals necessary for operation of the Site and desires to reuse Biosolids produced at the
District's facilities.
I. DEFINITIONS
1.1 Biosolids means municipal sewage sludge resulting from the treatment of
wastewater at the District's facilities that is digested and meets Class B and Table 3 quality
standards for land application under Part 503 of Title 40 of the Code of Federal Regulations,
"Standards for the Use and Disposal of Sewage Sludge" ("Part 503 Rule"), and dewatered to an
annual average of approximately 15%total solids or greater.
1.2 State Certified Weigh Station means any truck weigh station permitted by the
State of California to certify weights for commerce.
1.3 Weighmaster's Certificates means certificates obtained in accordance with
weighing procedures prescribed in Chapter 7(commencing with Section 12700)of Division 5 of
the California Business and Professions Code administered by the Division of Measurement
Standards of the California Department of Food and Agriculture.
1
2. BIOSOLIDS TRANSPORTATION AND REUSE
2.1 The District shall transport up to approximately 250 wet tons per week, or 50 wet
tons per day of Biosolids from its facilities to the Site for composting, Monday through Friday.
This quantity is subject to change and may be adjusted by agreement of the Parties.
2.2 Site delivery hours are from 6:30AM to 2:30PM, Monday through Friday. Hours
may change at the sole discretion of the Authority.
2.3 In event the District wishes to deliver to the Site sewage sludge that does not meet
the Part 503 Rule Class B Biosolids Pathogen Reduction Requirements specific to mean cell
residence time and temperature for anaerobic digestion, the District shall notify the Authority
within reasonable time and request approval to deliver for compost such material in accordance
with applicable legal requirements as detailed in Section 3 of this Agreement. The Authority
reserves the right not to accept and process such sewage sludge material at the Site.
2.4 The District shall use end dump trailers or fans beds to transport Biosolids to the
Site. End dumps may not have extended aprons on the rear of the trailers. Trailers delivering
Biosolids to the Site must meet the following clearance specifications to off-load material into
the biosolids hoppers:
2.4.1 All live bottom belt type trailers require a minimum clear distance of 15"
between the ground surface and any trailer structure beyond or past the rear tires. This
requirement does not apply to any flexible structure like a mud flap. Flexible structures may be
removed or re-positioned to allow adequate clearance;
2.4.2 All end dump trailers must possess the required belt trailers clearance in
addition to having a minimum clearance of 19" between the ground surface and any fixed trailer
structure when the trailer is in the fully raised or in the dumping position.
2.5 The Authority shall compost all Biosolids in accordance with applicable legal
requirements as detailed in Section 3 of this Agreement. The Authority may not use any other
method of reuse for the Biosolids without the prior written agreement of the District.
2.6 The Authority shall determine and record the total tonnage delivered to the Site.
The truck weigh station at the Site is certified by the State and will be used to issue a
Weighmaster's Certificate for each load measured. The Authority shall use the Site's measured
tonnage for its billing to the District. Weighmaster's Certificates submitted by the Authority will
show the certified gross weight of each load in each billing and the certified tare weight of each
vehicle.
3. PERMITS AND REGULATORY COMPLIANCE
3.1 The Authority shall obtain and maintain in effect all necessary licenses, Permits,
and other approvals legally required in order to perform all activities and operations provided for
in this Agreement. The Authority and all processes utilized at the Site shall comply with all
applicable local, state, and federal laws, rules, regulations, and pronouncements, including but
not limited to the following:
2
3.1.1 The Authority shall perform all activities and operations in accordance
with the requirements, as applicable, of the California Regional Water Quality Control Board-
Santa Ana Region, California State Water Resources Control Board, including the General Order
(General Waste Discharge Requirements for the Discharge of Biosolids to Land for Use in
Agricultural, Silvicultural, Horticultural, and Land Reclamation Activities), Parts 257 and 503
of Title 40 of the Code of Federal Regulations (Criteria for Classification of Solid Waste
Disposal Facilities and Practices-Application to Land Used for the Production of Food Chain
Crops and Standards for the Use and Disposal of Sewage Sludge, respectively), South Coast Air
Quality Management District Rule 1133.2. The Authority shall also operate in compliance with
all current waste discharge requirements contained in the NPDES permits for the District's
facility(s)that serves as the source(s)of Biosolids delivered to the Authority. District shall make
their NPDES permit available to the Authority upon request.
3.1.2 The Authority acknowledges that Part 503 of Title 40 of the Code of
Federal Regulations is a self-implementing rule and that the Authority's activities and operations
performed at the Site must comply with all applicable general requirements of the rule,
including, but not limited to: pollutant limits, management practices, operational standards,
monitoring,recordkeeping, and reporting.The Authority shall provide all information relevant to
the activities and operations at the Sites that the District may need or request to complete NPDES
or other permit applications or reports.
3.2 The District shall obtain and maintain in effect all necessary licenses,permits,and
other approvals legally required in order to perform all activities and operations provided for in
this Agreement. The District and Biosolids-generating processes at its facilities shall comply
with all applicable local, state, and federal laws, rules, and regulations and orders, including but
not limited to Part 503 of Title 40 of the Code of Federal Regulations. The District may
transport to the Site only Biosolids that meet the Class B pathogen reduction requirements of
503.32(b), vector attraction reduction requirements of 503.33(b)(1), and metals concentration
limits of 503.13(b)(3)Table 3, unless other arrangement are made per Section 2.3.
4. SITE INSPECTION, MONITORING,RECORDKEEPING,AND REPORTS
4.1 The Authority shall grant the District and its representatives access to the Site
during normal business hours to conduct inspections of the composting activities. The District
shall likewise grant the Authority and its representatives access to its treatment facilities during
normal business hours.
4.2 The Authority shall keep complete and correct daily records of all composting
activities, including: the date, the origin, and quantity of each load of Biosolids composted; site
management practices; and any sampling and laboratory test results regarding the composting
program. The Authority shall grant the District timely access to all such records. Likewise, the
Authority shall have timely access to the District's Biosolids records and data demonstrating
compliance with all federal,state,and local laws,regulations and orders.
3
4.3 The Authority shall submit monthly reports to the District that demonstrate
compliance with all required permits and authorizations. The Authority shall submit the reports
within 30 days after the close of each reporting period.The reports must include, at a minimum,
a description of all activities and operations performed during the reporting period, the items
described in Section 4.2, and a certification that all activities and operations were performed in
compliance with all applicable regulations. The Authority shall forward to the District, within
five days of receipt or transmission, copies of all correspondence with regulatory agencies in
regards to the activities or operations performed at the Site. Similarly, the District shall furnish
monthly, annual, and other periodic reports to the Authority detailing and certifying compliance
with permits and applicable regulations. The District shall provide all information relevant to its
operations that the Authority may need or request to complete regulatory reports or permits.
4.4 The Parties agree to notify one another by no later than the next business day of
its receipt of any notice, whether formal or informal, of a legal, governmental, judicial,
administrative, or similar proceeding, action, or enforcement, pending or threatened, that may
affect its ability to lawfully fulfill obligations of this Agreement. The District shall forward to the
Authority, within 5 days of receipt or transmission by the District, copies of all correspondence
with regulatory agencies in regards to its Biosolids operations.
4.5 The District shall perform all sampling for any monitoring and laboratory
analyses of Biosolids required by any federal, state, or local laws, regulations or orders prior to
transporting such Biosolids to the Authority. The Authority shall perform all other monitoring
and laboratory analyses required by any federal, state, or local laws, regulations, or orders
including, but not limited to, any monitoring or laboratory analysis of Biosolids after receipt by
the Authority.
5. COMPOSITION OF BIOSOLIDS
The District warrants that all Biosolids released to the Authority will be non-hazardous
under Title 22, Division 4.5, Chapter 11, Article 3 of the California Code of Regulations.
Neither the District nor the Authority shall add any material to the Biosolids that is classified as
hazardous, or which creates by-products or residues classified as hazardous, under federal or
state laws,regulations,or orders.
6. INCLEMENT WEATHER
6.1 The Parties shall each provide any facilities necessary to ensure their ability to
remove, transport,and compost Biosolids during typical inclement weather.
6.2 The Parties acknowledge that severe weather conditions may reduce or suspend
the Parties' abilities to deliver and/or compost Biosolids. If either Party reasonably determines
that a reduction or suspension is necessary, the Party shall provide the other Party, to the extent
reasonably possible: 1)a 24-hour minimum notice of reduction or cessation of operations; and 2)
an estimate of when the operations will resume.
See also Section 11,Force Majeure.
4
7. FEE FOR BIOSOLIDS REUSE
7.1 The District shall pay to the Authority for Biosolids received and processed at a
base fee of$54.00 per wet ton, plus an administrative fee of$2.00 per wet ton, and any other
adjustments provided for in this Agreement. The District shall pay all hauling and
transportation-related costs.
7.2 The Authority shall submit invoices to the District on a monthly basis and the
District shall make payment to the Authority within thirty(30)days of receipt.
7.3 If the term of this Agreement extends beyond the initial one-year term provided
for in Section 12 below,either the District or the Authority may request an adjustment in the fee.
7.4 If during the tern of this Agreement, the Authority incurs a new and unforeseen
fee or other cost not previously paid by the Authority, the Authority may request an adjustment
in the fee. The Authority shall provide written documentation to the District verifying the
increased cost. Rate increases during the current tern will not exceed the annual Consumer Price
Index for the Los Angeles-Orange County Metropolitan Area for all urban consumers (CPI-U)
available as of the date of the requested rate increase. The annual CPI-U will not be justification
for any rate reduction.
8. OWNERSHIP OF BIOSOLIDS
8.1 The District shall retain ownership of all Biosolids during transport, up to and
including off-loading of the Biosolids from the District's trucks. The District shall at all times
manage, direct, oversee, and/or conduct operations during transport, and is responsible for
leakage prevention and spill mitigation, and compliance with all applicable environmental
regulations.
8.2 The Authority shall become the owner of all Biosolids delivered to the Site after
off-loading and acceptance of the Biosolids from the District's trucks. The Authority shall
compost all Biosolids in accordance with this Agreement. The Authority
may not use or dispose of the Biosolids in any other manner without written consent from the
District. The Authority shall comply with all applicable laws and regulations in connection with
the marketing,use,and sale of the composted Biosolids.
9. INSURANCE
The District shall require its contractors transporting Biosolids to the Site to obtain and
keep in force during the term of this Agreement, at their sole expense, comprehensive general
liability insurance with endorsements naming the Authority as an additional insured, covering
the transportation of Biosolids in any vehicle whether owned or leased, whether liability is
attributable to the District or the Authority. The policy or policies must insure the Authority, its
directors, officers, employees, and agents against all claims arising out of or in connection with
the activities and operations relating to the transportation and delivery of Biosolids to the
5
Facility. The coverage must provide the following minimum limits, which may be increased
during the term of this Agreement as requested by the Authority in writing and agreed to in
writing by the District:
Automobile Liability:
Bodily Injury $5,000,000 each person
$5,000,000 each occurrence
Property Damage $5,000,000 each occurrence
$5,000,000 aggregate
General Liability:
Bodily Injury
$5,000,000 each occurrence
$5,000,000 aggregate products and completed operations
Property Damage $5,000,000 each occurrence
$5,000,000 aggregate
Coverage must be provided by an insurer that has at least an "A" Policy Holder's Rating
and"X" Financial Rating in accordance with the current Best's Key Rating Guide.
9.1 The Contractor shall provide the Authority with evidence of coverage by
providing certificates of insurance and endorsements and,at the Authority's request, copies of all
required policies plus all attached endorsements for the Authority's review.
9.2 The Contractor shall demonstrate to the Authority that it carries Workers
Compensation Insurance in accordance with legal requirements and Waiver of Subrogation.
10. INDEMNITY
In contemplation of the provisions of Section 895.2 of the California Government Code
imposing certain tort liability jointly upon public entities solely by reason of such entities being
parties to an agreement as defined by Section 895 of the Government Code,each Party,pursuant
to the authorization contained in Sections 895.4 and 895.6 of the Government Code, hereby
agrees to and shall indemnify and hold harmless the other Party,and its elected officials,officers,
agents, and employees from and against any and all losses, liability, damages, claims, suits,
actions, and administrative proceedings or demands (including reasonable attorney's fees)
relating to acts or omissions of the indemnitor, its officers, agents, or employees arising out of or
incidental to the performance of any of the provisions of this Agreement. Neither Party assumes
liability for the acts or omissions of persons other than each Party's respective officers, agents,or
employees. In the event judgment is entered against the Parties because of joint or concurrent
negligence of the Parties, or their officers, agents, or employees, an apportionment of liability to
pay such judgment shall be made by a Court of competent jurisdiction. This section shall
survive termination of the Agreement.
6
11. FORCE MAJEURE
Neither the Authority nor the District shall be responsible or liable for failure to meet
their respective obligations under this Agreement if such failure is due to causes beyond the
Authority's or the District's control. Such causes include, but are not limited to: strikes, fire,
flood,civil disorder,acts of God or of a public enemy,acts of the federal government,or any
unit of state or local government in either its sovereign or contractual capacity,epidemics,freight
embargoes or delays in transportation, and changes in federal, state,or local law that renders the
District's Biosolids impermissible for transportation or composting. Each Party shall immediately
notify the other Party via email to administrative staff and in writing, in accordance with Section
15,of the occurrence of any condition believed to constitute a force majeure under this section. If
a condition of force majeure exists for 30 days or more, either Party may terminate this
Agreement by giving notice in writing in accordance with Section 15. The notice will become
effective 24 hours after receipt.
12. DURATION OF AGREEMENT
This Agreement will be effective on the Effective Date and will continue in effect for a period of
one year. The Parties may, upon mutual written agreement,extend the duration of the Agreement
on a year to year basis with up to three annual extensions.
13. SUSPENSION,TERMINATION, AND EARLY TERMINATION
13.1 Suspension. The Authority may suspend its receipt of Biosolids if it determines
that the District can no longer timely and legally perform the required obligations of this
Agreement. Likewise, the District may suspend shipments of Biosolids if it determines that the
Authority can no longer timely or legally perform the required services, or if unacceptable
conditions exist at the Site.The suspending Party may lift the suspension and allow operations to
resume if it determines that any unacceptable conditions have been corrected.
13.2 Termination. Either Party may terminate this Agreement by providing the other
Party with a 90-day notice in writing in accordance with Section 15.
13.3 Early Termination. The Authority and the District, by written agreement, may
terminate this Agreement at any time.
14. ADDITIONAL PROVISIONS
14.1 Entire Agreement. This Agreement represents the entire agreement and
understanding between the Authority and the District as to those matters stated in this
Agreement. No prior oral or written understanding is of any force or effect in regard to any
matter covered by this Agreement.
7
14.2 Assignment. Neither the Authority nor the District may sell, assign, or sub-
contract its interest and/or obligations in this Agreement without the prior written and mutual
agreement of the Parties.
14.3 Governing Law. The provisions of this Agreement will be interpreted and
enforced in accordance with the laws of the State of California.
14.4 Counterparts. This Agreement may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
15. NOTICE
Except as otherwise required, any notice,payment, or instrument required or permitted to
be given under this Agreement will be deemed received upon a signed receipt of personal
delivery or 72 hours after deposit in any United States Post Office, registered or certified,
postage prepaid and addressed to the Party for whom intended,as follows:
TO THE AUTHORITY:
Inland Empire Regional Composting Authority
Attn:Jeff Ziegenbein
12645 Sixth Street
Rancho Cucamonga,CA 91739
TO THE DISTRICT:
Orange County Sanitation District
Attn:General Manager
Post Office Box 8127
Fountain Valley,Ca 92728-8127
[SIGNATURE PAGE FOLLOWS]
8
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of
the day and year first above written.
ORANGE COUNTY SANITATION DISTRICT
By:
Tom B amish
air fthe Board Directors
By:
elly Wore
Cie 4f
the Board of Directors
APPROVED AS TO FORM:
By:
G ral o sel
INLAND EMPIRE REGIONAL
COMPOSTING AUTHORITY
C-2n,
Jeff Ziegen ei
Project Manager
9
OPERATIONS COMMITTEE Meeting Date To ad.ofDir.
07/06,16 —
AGENDA REPORT Item Number Item Number
s —
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Ed Torres, Director of Operations and Maintenance
SUBJECT: PURCHASE OF REPLACEMENT VALVES FOR PLANT NO. 2
DIGESTERS E & H
GENERAL MANAGER'S RECOMMENDATION
Award a purchase order contract to CS-AMSCO for replacement valves for Plant No. 2
Digesters E & H for a total amount not to exceed $196,104.60.
BACKGROUND
The Orange County Sanitation District operates and maintains 18 digesters in its gas
production and bio-solids handling process at the Huntington Beach facility(Plant No. 2).
These digesters undergo routine cleaning and preventative maintenance which includes
valve replacement.
RELEVANT STANDARDS
Biosolids Master Plan, Energy Master Plan
• 24/7/365 treatment plant reliability
Maintain a proactive asset management program
PROBLEM
Digesters E & H are scheduled to be cleaned as part of their routine maintenance
schedule to increase flows, process efficiency and reliability. In addition to removing the
debris and solids accumulated inside the digester, the DeZURIK valves used to control
these digesters also need to be replaced to ensure the highest level of process reliability.
PROPOSED SOLUTION
Taking into account the age and condition of the valves currently in service on E & H
digesters, the purchasing and replacement of these valves is highly recommended.
CS AMSCO is the designated representative for DeZURIK products in Orange County.
TIMING CONCERNS
Some of the valves required have a lead time of 8 to 10 weeks. Delaying this order will
cause schedule delays with the cleaning & maintenance sequence of the digesters.
Page 1 of 2
RAMIFICATIONS OF NOT TAKING ACTION
Not replacing inoperable valves may lead to the inability to redirect digester sludge,
maintain the digesters, and potential injury to staff when valves become difficult to
operate. Failure to replace gas withdrawal valves may impede the reliability of the flow
of digester gas that supports the Central Power Generation process.
PRIOR COMMITTEE/BOARD ACTIONS
May 23, 2007 - approved DeZURIK as a sole source provider (Minute Order No. 11(p)).
ADDITIONAL INFORMATION
N/A
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. Funding is provided under Division 880, Repairs and Maintenance Materials,
FY 2016-2017 budget (Section 6, Page 96). Project contingency funds will not be used
for the procurement of these materials.
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (wwwocsd.corn with the
complete agenda package:
• CS-AMSCO-DEZURIK Quotation dated May 26, 2016
Page 2 of 2
WICS-amsco- DEZURIK/ QUOTATION
TO: OCSD Date: 512 612 01 6
Attn: Darius Ghazi Quote# 09293SA-DZ
Phone: (714)593-7586 Rev 2
Fax:
E-Mail:
Make Order To: CS-AMSCO
15842 Chemical lane
Huntington Beach,CA 92649
FOB: Huntington Beach,CA-Prepay+Add(not to exceed$900) (714)892-4200 Ph
Terms: Net 30 Days (714)892.4266 Fax
By: Jlia IVARm
ANY PURCHASE ORDER ISSUED AS A RESULT OF THIS QUOTATION IS SUBJECT TO ALL OF THE MANUFACTURER'S CONDITIONS AND FINAL
ACCEPTANCE BY CS-amsoo
Item Quan. Size Description Unit Price Total
1 7 6" 801206(Valve, plug,Flanged,6"); $ 728 $ 5,096
PEC,6,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143405
2 8 6" 801206(Valve, plug,Flanged,6"); $ 728 $ 5,824
PEC,6,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143316
3 10 6" 801206(Valve, plug,Flanged,6"); $ 728 $ 7,280
PEC,6,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143384
4 4 6" 801613(Valve, plug,Flanged,6",chainwheel); $ 1,145 $ 4,580
PEC,6,F1,CI,NBR,NBR,S30'GS-6-CW 8
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Chainwheel Actuator.
WO 143384
Page t IN 7 CSamsco/QUOTATION
5 6 6" 801614(Valve, plug,Flanged,6",chainwheel); $ 1,145 $ 6,870
PEC,6,F1,CI,NBR,NBR,S30-GS-6-CW8(90
degree from STD)
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Chainwheel Actuator.
WO 143384
6 1 6" 801615(Valve, plug,Flanged,6", handwheel); $ 1,002 $ 1,002
PEC,6,F 1,CI,NBR,NBR,S30-GS-6-HD8
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Handwheel Actuator.
WO 143384
7 1 6" 801615(Valve, plug,Flanged,6", handwheel); $ 1,002 $ 1,002
PEC,6,F 1,CI,NBR,NBR,S30-GS-6-HD8
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Handwheel Actuator.
WO 143382
8 1 6" 801615(Valve, plug,Flanged,6", handwheel); $ 1,002 $ 1,002
PEC,6,F 1,CI,NBR,NBR,S30`GS-6-HD8
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coaling and
Handwheel Actuator.
WO 143405
9 2 4" 801616(Valve, plug, Flanged,4",chainwheel) $ 812 $ 1,624
PEC,4,F1,CI,NBR,NBR,S30"GS-6-CW 8
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing ,with interior coating and
Chainwheal Actuator.
WO 143384
10 4 6" 801617(Valve, plug,Flanged,6", pnue actuator) $ 5,561 $ 22,244
replacement for pin 9257723, pneumatic manual
override,regulator,sol,installed
PEC,6,F 1,C I,NBR,CR,S30-GS-6-PC8,DXX003,
SEH90,4V2111,AFR2,SP
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Pneumatic Cylinder Actuator,manual Override,
limit switches,Solenoid valve,Air regulator and
Speed Control all installed on the valve.
WO 143384
Page 2 of 7 CSarmi./QUOTATION
11 1 6' 801618 $ 987 $ 987
KGC,6,HD,F1,S2,SMP,S2-NBR'MN-HDI2-CS
DeZURIK Cast Knife gate valve, Heavy Duty,
150#flange drilling, 316SS body 316SS rounded
Gate, resilient seat,complete with manual
Handwheel and Carbon Steel Super structure.
W0143384
12 2 6" 801619 $ 2,044 $ 4,088
PEC,6,F1,CIS,NSR,CR'NT(Rubber lined valve
on the doors)
DeZURIK Eccentric plug valve,flanged, Cl body
Rubber Lined body and plug, and 2"OP.
W0143405
13 2 6" 801619 $ 2,044 $ 4,088
PEC,6,Fl,CIS,NBR,CR`NT(Rubber lined valve
on the doors)
DeZURIK Eccentric plug valve,flanged, Cl body
Rubber Lined body and plug,and 2"OP.
W0143406
14 1 14" 801620 $ 4,388 $ 4,388
PEC,14,F1,CI,N BR,NBR,S30'GS-12-HD20
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coaling and
Handwheel Actuator.
W0143405
15 1 14" 801620 $ 4,388 $ 4,388
PEC,14,F1,CI,N BR,NSR,S30'GS-12-HD20
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Handwheel Actuator.
W0143316
16 3 8" 801621 $ 1,090 $ 3,270
PEC,8,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143316
Page 3 of 7 CSamsco/QUOTATION
17 2 8" 801621 $ 1,090 $ 2,180
PEC,8,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143382
18 2 8" 801621 $ 1,090 $ 2,180
PEC,8,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143405
19 2 8" 801621 $ 1,090 $ 2,180
PEC,8,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143405
20 1 4" 801622 $ 411 $ 411
PEC,4,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143405
21 3 4" 801622 $ 411 $ 1,233
PEC,4,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143406
22 2 4" 801622 $ 411 $ 822
PEC,4,F1,CI,NBR,NBR,S30'NT
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and 2"
OP.
WO 143403
23 2 18" 801623 $ 6,841 $ 13,682
PEC,18,F1,CI,N BR,NBR,S30'GS-12-HD20
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coaling and
Handwheel Actuator.
WO 143406
Page 4 M] CSamsco/QUOTATION
24 2 18" 801623 $ 6,841 $ 13,682
PEC,18,F1,CI,N BR,NBR,S30-GS-12-HD20
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Handwheel Actuator.
WO 143405
25 2 8" 801624(Valve, plug,Flanged,8", handwheel); $ 1,385 $ 2,770
PEC,8,F1,CI,NBR,NBR,S30-GS-6-HD8(One
valve was NT and now will be gear actuator)
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Handwheel Actuator.
W0143405
26 2 8" 801624(Valve, plug,Flanged, 8", handwheel); $ 1,385 $ 2,770
PEC,8,F1,CI,NBR,NBR,S30-GS-6-HD8(One
valve was NT and now will be gear actuator)
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Handwheel Actuator.
W0143382
27 2 14" 801625 $ 8,056 $ 16,112
PEC,14,F1,CI,N BR,NBR,S30"GS-12-PC8,
SEH90,4V2111,AFR2
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Double acting Pneumatic Actuator,with Limit
switches,Solenoid valves and air regulator.
W0143316
28 2 14" 801625 $ 8,056 $ 16,112
PEC,14,F1,CI,N BR,NSR,S30`GS-12-PC8,
SEH90,4V2111,AFR2
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing,with interior coating and
Double acting Pneumatic Actuator,with Limit
switches,Solenoid valves and air regulator.
W O143406
29 1 4" 801626 $ 777 $ 777
CVS,4,250A,F1,DI,DI-S1-S2-NBR"LW (Vertical
Line,face to face 11 1/2")
DeZURIK/APCO Lever and weight Check valve,
Flanged, DI body and disc,Stainless Steel Seat
with fusion coating.
W0143406
Page 5 of 7 CSamsco/QUOTATION
30 1 4" 801626 $ 777 $ 777
CVS,4,250A,F1,DI,DISl-S2-NBWLW (Vertical
Line,face to face 11 112")
DeZURIK/APCO Lever and weight Check valve,
Flanged, DI body and disc,Stainless Steel Seat
with fusion coating.
W0143316
31 1 6" 801627 $ 1,008 $ 1,008
CVS,6,250A,F1,DI,DI-S1-S2-NBR'LW (Horizontal
Line,face to face 14")
DeZURIK/APCO Lever and weight Check valve,
Flanged, DI body and disc,Stainless Steel Seat
with fusion coating.
WO 143316
32 1 14" WO 801629 $ 3,215 $ 3,215
KGC,14,HD,F1,S2,SMP,S2-N BR'MN-H D20-CS
DeZURIK Cast Knife gate valve, Heavy Duty,
150#flange drilling, 316SS body 316SS rounded
Gate, resilient seat,complete with manual
Handwheel and Carbon Steel Super structure.
WO 143316
33 1 14" WO 801629 $ 3,215 $ 3,215
KGC,14,HD,F1,S2,SMP,S2-N BR'MN-H D20-CS
DeZURIK Cast Knife gate valve, Heavy Duty,
150#flange drilling, 316SS body 316SS rounded
Gate, resilient seat,complete with manual
Handwheel and Carbon Steel Super structure.
WO 143406
34 6 3" 801630 $ 438 $ 2,628
PEC,3,F1,CI,NBR,EPDM,S30'LV(these valves
to replace Globe valve with lever operated
plug valve)
DeZURIK Eccentric plug valve,flanged, Cl body,
resilient plug facing (EPDM for hot water),with
interior coating and non removable Lever.
WO 143403
35 2 3" 801631 $ 8,369 $ 16,738
851608-lB20-2C4-19-POS1-000
DeZURIK/Allagash Control Valve, Cast iron
Globe valve, 125#flanged,with 316SS trim and
actuator 01-15 direct acting, 1 1/2"travel,3-15 psi
WO 143403
Page 6 of 7 CSamsco/QUOTATION
36 1 3" 801631 $ 520 $ 520
CVS,3,250A,F1,DI,DI-S1-S2-NBR'LW (Horizontal
Line,face to face 9 1/2")
DeZURIK/APCO Lever and weight Check valve,
Flanged, DI body and disc,Stainless Steel Seat
with fusion coating.
WO 143403
37 1 Freight not to exceed $900.00 $ 900 $ 900
Chain
You have asked for(12)Valves with 71Chain
Wheel,if Chain is required:-Please add the
following accordinaly-
-Galvanized-(3/16)"Coil-$2.50/ft.
Specify how many ft.you need?
Notes:
1)Pricing does not include taxes.Terms are 100%Net 30 Days with no retainer allowance.
2)This proposal does not include any flange bolts,nuts,gaskets,valve boxes,floor stands,extension stems,position
Indicators,chain wheel chain,or other accessories.
3)quotation is valid for 60 days from above date.
Page 7 of 7 CSamsco/QUOTATION
OPERATIONS COMMITTEE MaaHngDae TOBd.OfDir.
07/O6/16 07/27/16
AGENDA REPORT Item Item Number
6
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Ed Torres, Director of Operations and Maintenance
SUBJECT: AGREEMENT FOR NATURAL GAS, SPECIFICATION NO. C-2016-778BD
GENERAL MANAGER'S RECOMMENDATION
A. Approve a purchase order agreement to Constellation NewEnergy—Gas Division,
LLC for the purchase of Natural Gas, Specification No. C-2016-778BD for the
period August 1, 2016 through July 31, 2017 for a monthly index unit price of
$0.039 per Million British Thermal Units (MMBtu)for a total estimated annual cost
of$296,000, with four (4) one-year renewal options; and
B. Approve unit price contingency of (10%).
BACKGROUND
Orange County Sanitation District's (Sanitation District's) Central Generation (CenGen)
facilities at Plant No's 1 and 2 generate approximately 2/3's of the power required for the
treatment plant processes. The engines run primarily on digester gas and supplement
with a small amount of natural gas except during summer peak power periods where
additional engine at each plant is run on natural gas. The digester gas is available as a
useful byproduct of the Sanitation District solids processing, and natural gas is purchased
as a bulk commodity from a third-party energy marketing firm and is delivered through
regional pipelines owned by Southern California Gas Company. The Sanitation District
has utilized gas marketing firms for over twenty-one years to effectively manage the cost
of natural gas required for CenGen operation.
RELEVANT STANDARDS
Ensure that the public's money is wisely spent
• Use all practical and effective means for recovering energy
Maintain a culture of improving efficiency
PROBLEM
Present purchase order for procurement and management of natural gas is due to expire
on July 31, 2016.
Page 1 of 2
PROPOSED SOLUTION
Award a new purchase order agreement to Constellation NewEnergy—Gas Division, LLC
for the purchase of natural gas. Utilization of natural gas has been an essential tool in
controlling overall CenGen operating costs which saves money by reducing electrical
power costs principally during summer peak power periods.
TIMING CONCERNS
The current purchase order is due to expire July 31, 2016.
RAMIFICATIONS OF NOT TAKING ACTION
If a new purchase order agreement is not awarded before the existing contract expires, a
short-term emergency supply arrangement would have to be made with Southern
California Gas which could result in increased gas costs.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
A competitive bid was advertised on April 15, 2016. One bid was received on
May 24, 2016. The bid was evaluated in accordance with the OCSD policies and
procedures. Staff recommends awarding a new purchase order contract to Constellation
NewEnergy—Gas Division, LLC for supply of natural gas. The unit cost of$0.039/MMBtu
is a decrease from the previous (FY15/16 contract) rate of$0.08/MMBtu.
CECIA
N/A
FINANCIAL CONSIDERATION
This request complies with authority levels of OCSD's Purchasing Ordinance. This item
has been included in the Operating Budget, Division 830 Utilities (Section 6, p. 84) and
Division 840, Utilities (Section 6, Page 88).
Dale of Approval Unit Cost Contingency
07/27/16 $0.039/MMBtu(unit price) 10%(unit price)
ATTACHMENT
The following attachment(s) maybe viewed on-line at the OCSD website (www.ocsd.com) with the
complete agenda package:
DRAFT Master Retail Natural Gas Supply Agreement
Page 2 of 2
Constellation, MASTER RETAIL NATURAL GAS SUPPLY AGREEMENT
This Master Retail Natural Gas Supply Agreement ('Master Agreement D entered into as of Z01
Effective Date")by and between CUSTOMER NAME("Customer")and Constellation tiewEnergy—Gas Di anvision, LLC('CNEG'). CNEG and
Customer are sometimes referred to individually as a"Party"and collectively as the"Parties."
This Master Agreement sets forth the general terms and conditions governing transactions for the purchase and sale of natural gas and related
products and services(each a"Transaction")to one or more of Customers accounts or facilities(each a"Facility")as agreed to from time to
time. Each Transaction may be evidenced by a transaction confirmation (each a'TC"). The Parties may further agree to implement certain
strategies or related services,the specifics of which will be set forth in a rider executed by the Parties(each a"Rider"). Each TO and Rider shall
constitute part of and shall be subject to this Master Agreement. This Master Agreement and each TO and Rider shall constitute a single integrated
agreement between the Parties(collectively referred to as the"Agreement"). In the event of a conflict between (i)a TO, (d)a Rider, (iii)the
terms and conditions of this Master Agreement, and (iv)any oral agreement of the Parties as to a Transaction, the terms shall govern in the
priority listed in this sentence.
The Parties intend that they are legally bound by the terms of each Transaction from the moment each Party agrees to those terms,whether(i)
via electronic transmission, (11)written record, or(III)orally. Nothing in this Agreement obligates either Party to enter into a Transaction at any
time. Any applicable requirement that a Transaction be"in writing"and"signed"shall be deemed to have been satisfied by this Master Agreement,
by the Parties' signatures below and their express agreement to these procedures. CNEG shall have the exclusive right to confirm any
Transaction by sending Customer a written TO,substantially in the form attached hereto as Exhibit A or otherwise,by facsimile,e-mail or other
means. Notwithstanding any provision to the contrary in this Master Agreement,failure to send a TO shall not invalidate a Transaction agreed to
by the Parties. If CNEG sends a TO and Customer fails to object in writing to any term in the TC within two(2) Business Days,the TO shall
constitute the definitive written expression of the Transaction. "Business Day"means any day except a Saturday,Sunday,or a Federal Reserve
Bank holiday and shall open at 8:00 a.m.and close at 5:00 p.m. Eastern Prevailing Time.
t. CNEG and Customer Obligations.
Natural Gas Supply.CNEG shall sell and supply,and Customer shall purchase and receive,the Contract Quantity for each Facility identified
in a TO or Rider. "Contract Quantity"means the quantity of gas to be delivered and received pursuant to a TO. Such deliveries and receipts
of natural gas shall be on a Firm, Secondary Firm or Interruptible basis, or otherwise as described in a TC. "Firm"means deliveries and
receipts may not be interrupted without liability except for reasons of Force Majeure. "Secondary Firm"means deliveries and receipts will
be on a best-efforts basis up to Customer's maximum daily quantity and performance may be interrupted without liability to the extent that
one or more of the following conditions are present: (1) Force Majeure; (11) curtailment by the local distribution company owning and/or
controlling and maintaining the distribution system required for delivery of gas to the Facility(ies)(the"Utility");(III)curtailment of supply by a
natural gas supplier;hi curtailment of storage by a storage provider;(v)curtailment of transportation by a gas gathering or pipeline company,
or Utility(each a"Transporter'),transporting gas for CNEG or Customer downstream or upstream of the Delivery Point(s),including,but not
limited to,transportation between secondary firm points;(vi)recall of transportation capacity release by its releaser;or(vii)curtailment of gas
production behind a specific meter. "Interruptible"means deliveries and receipts may be interrupted at any time for any reason except for
Customer's obligation to take and pay for gas it nominates and CNEG's obligation to honor the price set forth in the TC. The terms of any
Transaction between CNEG and Customer shall be as set forth on the applicable TC, but CNEG will procure gas from its suppliers on terms
CNEG deems appropriate. CNEG holds title to the gas and has the sole responsibility to deliver,or cause to be delivered,the natural gas to
the applicable Delivery Point. Title shall pass to Customer at the Delivery Point and Customer shall have the sole responsibility for transporting
the gas from the Delivery Point. "Delivery Point"means the city gate interconnection between the Utility and the upstream Transporter or
such other delivery point(s)as are agreed in a TC. However,to the extent that Customer owned transportation capacity is used to deliver
natural gas to the Customer,the Delivery Point shall be the receipt point of such capacity.
Failure to Deliver or Receive.The sole and exclusive remedy of the Parties in the event of a breach of an obligation to deliver or receive
gas shall be the following: (a) If CNEG fails to deliver gas (other than Interruptible)for a reason other than Customers breach,CNEG shall
pay Customer the"Replacement Cost,"which is the amount Customer actually pays to replace the undelivered Contract Quantity less the
amount Customer would have paid under this Agreement for such Contract Quantity. (b) If Customer fails to receive gas (other than
Interruptible)for a reason other than CNEG's breach,Customer shall pay CNEG the"Revenue Loss,'which is the amount that CNEG would
have received for the sale of the unreceived Contract Quantity pursuant to this Agreement less(i)the amount actually received by CNEG in
an alternate sale,plus any incremental costs,or(it)if no alternate sale takes place,the amount CNEG would have received by reselling such
Contract Quantity at spot market prices at or near the Delivery Point(s), as determined by CNEG in a commercially reasonable manner.
CNEG and Customer shall exercise commercially reasonable efforts to mitigate any Revenue Loss or Replacement Cost,respectively. If the
calculation of the Replacement Cost or Revenue Loss results in a negative number,then the amount shall be deemed to equal zero.
Nominations.The Parties shall coordinate nomination activities,giving sufficient time to meet the deadlines of the affected Transporter(s). If
Customer or the Utility fails to provide CNEG with a usage nomination for any month in a timely manner,CNEG(i)may establish a nomination
for such month in a commercially reasonable manner based on Customers historical usage data available to CNEG,and III)shall have the
right to use and rely on such nomination unless notified otherwise by Customer or the Utility. If a Party becomes aware that actual deliveries
are greater or lesser than the quantity of gas confirmed by a Transporter for movement,transportation or management,the Party shall promptly
notify the other Party.Usage nominations may be made orally, in writing,by facsimile or by electronic means.
Imbalances.The Parties shall use commercially reasonable efforts to avoid imposition of any fees,penalties,cash-outs,costs or charges(in
cash or in kind)assessed by a Transporter for failure to satisfy balancing and/or nomination requirements('Imbalance Charges"). If either
Party receives an invoice from a Transporter that includes Imbalance Charges, the Parties shall determine the validity and cause of such
Imbalance Charges. The Party causing the imposition of the Imbalance Charges will be responsible to pay such Imbalance Charges.
Transporter Restrictions.If either Party receives an operational Flow order or any other usage or operating instructions,restrictions or similar
notice(each an'OFO")from a Transporter requiring action to be taken in connection with the flow and/or consumption of gas covered by this
Agreement,such party will use commercially reasonable efforts to notify the other party of such event in a timely manner.Such notice may be given
by electronic means. Each Party will take all commercially reasonable actions required by the OFO within the time prescribed. If OFO
penalties, charges,fees,costs or expenses result from the actions or inactions of one Party,then such Party shall be solely responsible for
any such penalties,charges,fees,costs or expenses. Both parties agree that OFOs may require one or both parties to buy or sell gas quantities
in the then-current market conditions,which may be appreciably higher or lower than the original pricing. If CNEG is responsible for nominations
Papered Standard I QIEGX)Ll'R Page 1 I Version 32.16
4Q016 fmshMro�Fne�py Resaoces.If L.P➢�d resemd.
and balancing on a Transporter imposing an OFO or similar restriction,CNEG may(but is not required to)increase or decrease nominations,
as appropriate,to avoid penalties.
2. Term of Master Agreement.The term of this Master Agreement will commence on the Effective Dale and, unless terminated earlier as
provided in this Master Agreement,will continue until terminated by either Party upon thirty(30)days prior written notice to the other Party;
provided any TC or Rider will continue to be governed by this Master Agreement until the TC or Rider has been separately terminated or
expired.
Tern of TC.Each TC or Rider shall set forth the applicable"Delivery Period"or term during which deliveries of natural gas are to be made
and/or services are to be provided.CNEG shall not be liable for any failure to enroll or drop a Facility by any applicable start and end dates)
set forth in the TC or Rider due to circumstances beyond its control.
3. Information and Authorization. Customer hereby authorizes CNEG to take such actions CNEG deems necessary to enroll each Facility
with the Utility and to be served by CNEG and to otherwise meet CNEG's obligations under the Agreement,including executing on Customers
behalf any documents necessary to effectuate any Facility enrollment or election, undertaking the management of any storage or
transportafon capacity allocated to Customer by the Utility or other transporters,disposing of storage balances,adding or deleting Facilily(ies)
as necessary, receiving usage nominations from the Utility relafing to Customers natural gas requirements, and other similar documents.
Customers signature on this Master Agreement constitutes Customer's written authorization for CNEG to obtain from time to time from the
applicable Utility all current and historical natural gas billing, usage data and other related information. Customer shall take any actions,
execute any documents and shall provide to CNEG any information as CNEG may reasonably require.
4. Billing and Payment.
Billing.Customerwill be billed for nalurel gas usage and related products and services supplied under the Agreement in one of the following
ways based on availability and eligibility of each Facility, which may change from time to time: (a) Dual Billing: Customer will receive two
invoices, one from CNEG for the natural gas supply and one from the Utility for the amounts payable by Customer for services provided by
the Utility("Delivery Charges");(b)CNEG Consolidated Billing:Customer will receive one invoice from CNEG that includes both the natural
gas supply charges and the Delivery Charges. In the case of CNEG Consolidated Billing, Customer agrees that (i) Customer remains
exclusively liable to the Utility for all Delivery Charges, (ii) CNEG has no obligation to review Delivery Charges for accuracy, (III) should
Customer dispute Delivery Charges,that is a matter for Customer and the Utility to resolve without any involvement or obligation on the part
of CNEG,and(iv)CNEG may withhold any payments due to the Utility if Customer fails to pay CNEG invoices in accordance with this Master
Agreement.
Taxes. Customer shall pay all federal, state, municipal and local taxes, duties, fees, levies, premiums or other charges imposed by any
governmental authority, directly or indirectly, on or with respect to the natural gas and related products and services provided under the
Agreement, including without limitation any production, severance or ad valorem taxes, and including any taxes enacted after the Effective
Date (collectively, 'Taxes"). The term "Taxes" shall include any amounts imposed on Customer directly or on CNEG in its function as
Customers supplier,and that are associated with the supply of gas to Customer(in which case the Customer shall be responsible to reimburse
CNEG for such amounts). If Customer is exempt from any Taxes, Customer shall provide CNEG with any state and/or local exemption
certificate prior to the issue date of Customers first invoice. All Taxes invoiced to Customer under this Agreement will be included on the
invoice or in the applicable fixed price as allowed by Law.
Estimates. CNEG's ability to invoice Customer is dependent on the Transporters ability to furnish CNEG with all necessary information,
including Customers metered usage. When there is a delay in receiving information from the Transporter,CNEG will,to the extent necessary,
estimate charges and credits for a billing period and reconcile such estimates against actual charges and credits in a future Invoice(s).Each
invoice is also subject to adjustment for errors in arithmetic,computation, meter readings or other errors. Interest shall not accrue on such
adjustments.
Payment.All amounts set forth in an invoice are payable to the Party issuing the invoice and will include,in addition to the natural gas supply
charges, Delivery Charges,and Taxes,all other amounts related to the purchase and delivery of natural gas.CNEG's invoices will be sent to
Customer in accordance with CNEG's normal billing cycle,as adjusted from time to time. CNEG's invoices are due and payable on the tenth
(101h)day after the date of invoice or such other date as set forth in a Rider(the"Payment Date")without offset or reduction of any kind,to
the address set forth on the invoice. Invoices not paid on or before the Payment Date will accrue interest daily on outstanding amounts from
the Payment Date until paid in full,at the lesser of 1.5%per month or the highest rate pernitted by law.
Pricing Structures."Contract Price"means the price for gas as set forth in the applicable TC or Rider. To the extent(a)there are beginning
of the month nominated volumes where the price is not fixed,(b)a Facility requires additional natural gas quantities in excess of the nominated
or fixed quantities set forth in a TC or Rider,or(c)a Facility continues to receive natural gas from CNEG beyond the Delivery Period(where
such deliveries will be considered month to month),all such natural gas will be priced at Market Price unless otherwise set forth in a TC or
Rider. "Market Price"means a price comprised of(1)the spot commodity cost of gas as determined by CNEG in its reasonable discretion,
(ii) all related interstate and intrastate pipeline charges required to deliver gas to the Delivery Point, and (III) a reasonable market based
margin. Market Price does not include any applicable Utility charges,including but not limited to Utility or pipeline balancing charges,unless
otherwise agreed upon.
Market Disruption. If the Contract Price is based in whole or in part upon a specified index and a Market Disruption Event occurs on a day
on which the relevant source published or was to publish the relevant price, then the Parties shall negotiate in good faith to agree on an
alternative method of determining the Cortmct Price. A"Markst Disruption Event" is any one of the following: (a)failure of the specified
index to announce or publish information necessary for determining the Contract Price;(b)the failure of trading to commence orthe permanent
discontinuation or material suspension of trading in the relevant options contract or commodity on the exchange or market acting as the
specified index;(c)the temporary or permanent discontinuance or unavailability of the index; (d)the temporary or permanent closing of any
exchange acting as the specified index;or(a)a material change in the formula for or the method of determining the relevant price component.
Price Locks.Unless otherwise set forth in a TC or a Rider,Customer can request to lock in the commodity price for any month(s)at any time
during the Delivery Period, prior to 12:00 p.m. EST/EDT on the final day of NVMEX last day settlement for each applicable delivery month.
Commodity purchase/sale prices exclude pipeline and Utility distribution charges. Customer also has the right to lock basis at a fixed price
and at predetermined volumes. Basis includes interstate and intrastate pipeline transportation but does not include the commodity cost or
the Delivery Charges.
5. Adeauate Assurance. If CNEG has reasonable grounds: (i)to believe that Customers creditworthiness has become unsatisfactory;or(it)
Papered Bbndmd I CNEGICxx Page 2 l Vernon 32.16
4Q016 ExW Resaoces,IfL.P➢rd reeemd.
for insecurity with respect to Customer's performance under the Agreement, CNEG may demand, in writing,adequate assurance of future
performance from Customer in a form, in an amount, from an issuer, and for a term, all as reasonably satisfactory to CNEG ("Adequate
Assurance"). To satisfy a demand,Customer shall provide Adequate Assurance to CNEG within three(3)Business Days of the date of the
written demand. If at any time CNEG requires Customer to prepay for gas, then (1) CNEG shall be under no obligation to deliver gas if
Customer fails to pay any prepayment by its due date,and(it)in the event the aggregate cost of any quantities of gas required by Customer
in a month in excess of the scheduled nominated quantities exceeds $15,000.00, Customer shall pay CNEG the aggregate cost of such
quantities within three(3)Business Days of CNEG's request for payment.
6. Event of Default.An"Event of Default"means any one of the following: (a)Customer's failure to make,when due,any payment required
under the Agreement if not paid within five(5)Business Days(or such longer period required by applicable law)following written notice to
Customer that a payment is past due; (b)any representation or warranty made by a Party in the Agreement is false or misleading in any
material respect when made or ceases to remain true in all material respects during the lens of the Agreement, if not cured within five(5)
Business Days after written notice from the other Party;(c)Customer fails to provide the Adequate Assurance as provided in this Agreement;
(d)the failure by a Party to perform any material obligation set forth in this Agreement(other than the events that are otherwise specifically
covered as a separate Event of Default hereunder or a failure to deliver or receive gas)which is not cured within five(5)Business Days after
receipt of written notice thereof; or(a)a Party: (i) makes an assignment or any general arrangement for the benefit of creditors; (ii) has a
liquidator,administrator,receiver,trustee,conservator or similar official appointed for it or any substantial portion of its property or assets(iii)
files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any
bankruptcy,insolvency,reorganization or similar law for the protection of creditors,or has such petition filed against it;(iv)otherwise becomes
bankrupt or insolvent (however evidenced); (v) is unable to pay its debts as they fall due; or (vi) is dissolved (other than pursuant to a
consolidation,amalgamation or merger).
7. Remedies Upon Event of Default. If an Event of Default occurs with respect to a Party(the"Defaulting Party'),the other Party(the"Non.
Defaulting Party")may,in its discretion,at any time,(i)withhold any payments or suspend any deliveries hereunder and/or(it)terminate the
Agreement in whole or solely with respect to those Facility(ies) adversely affected by such Event of Default, upon written notice to the
Defaulting Party setting forth the effective date of termination (the"Early Termination Date").The Early Termination Dale for any Facility
located in New Jersey shall be no less than thirty(30)calendar days from the date of writer,notice of termination. Further,if Customer is the
Defaulting Party, then CNEG may, without waiving any rights or remedies it may have, to the extent applicable, remove Customer from
CNEG's managed balancing and/or storage pools and/or apply any storage balance at prevailing market prices as an offset against the
amount owed to CNEG by Customer. If this Agreement is terminated, the Non-Defaulting Party will in good faith calculate a termination
payment as set forth below and the owing Party shall pay such amount within three(3)Business Days of receipt of notice of the amount due.
The Parties acknowledge and agree that any termination payment under the Agreement constitutes a reasonable approximation of harm or
loss, and is not a penalty or punitive in any respect. The remedies under this Section 7 are the sole and exclusive remedies of the Non-
Defaulting Party with respect to the occurrence of any Event of Default.
As of the Early Termination Date, the Non-Defaulting Party shall determine: (i)the difference between the Contract Value and the Market
Value, such that the difference shall be due to the Customer if the Market Value exceeds the Contract Value and to CNEG if the opposite is
the case; (11)the Non-Defaulting Party's Costs; and (Ili)the amount owed (whether or not then due) by each Party with respect to all gas
delivered and received. The Non-Defaulting Party shall net or aggregate, as appropriate, any and all amounts owing between the Parties
under this Section,so that all such amounts are netted or aggregated to a single liquidated amount payable by one Party to the other.
"Costs" means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar transaction costs and expenses
reasonably incurred by such Party as a result of the Event of Default. The"Contract Value" shall be the Contract Price multiplied by the
amount of gas, as determined by the Non-Defaulting Party,that would have been delivered under each terminated Rider or TC, had it not
been terminated early(the"Terminated Volumes"). The"Market Value"shall be the amount,as of the Early Termination Date,a third party
would pay for the Terminated Volumes at the Delivery Points)at current market prices.The Non-Defaulting Party may determine the Markel
Value of a terminated transaction by reference to information either available to it internally or supplied by one or more third parties including,
without limitation, any or all of the settlement prices of NYMEX gas futures contracts, quotations from leading dealers, energy swap
agreements or physical gas trading markets,similar sales or purchases,and any other bona fide offers from either third parties or affiliates of
the Parry, all as commercially available to the Party and adjusted for the length of the term and differences in transportation costs and other
factors,as the Party reasonably determines.The Non-Defaulting Party shall not be required to enter into a replacement transaction in order
to determine or be entitled to a termination payment.
8. Chance In Law.CNEG may pass through or allocate,as the case may be,to Customer any increase or decrease in CNEG's costs related
to the natural gas and related products and services sold to Customer that results from the implementation of new, or changes (including
changes to transportation rates)to existing, Laws, or other requirements or changes in administration or interpretation of Laws or other
requirements.-Law"means any law,rule,regulation,ordinance,statute,judicial decision,administrative order,Transporter business practices
or protocol, Transporter tariff, or rule of any commission or agency with jurisdiction in the state in which the Facility(ies) is located. Such
adjusted amounts will be included in subsequent invoices to Customer.
9. Representations and Warranties.Each Party warrants and represents to the other(now and deemed repeated by each Party on each date
on which a TC or Rider is executed or deemed accepted)that: (i)it is duly organized,validly operating and in good standing under the laws
of thejurisdiction of its formation;di)it is authorized and qualified to do business in the jurisdictions necessary to perform under the Agreement;
(iii) execution, delivery and performance of the Agreement are duly authorized and do not violate any governing documents or any of its
contracts or any applicable Law;(iv)there is no material event(s)or agreement(s)which would impair that Party's right,authority or ability to
execute the Agreement and otherwise perform under the Agreement;and(v)it has the knowledge and experience to evaluate the merits and
risks associated with the Agreement.
Furthermore,Customer warrants,represents and covenants that:(i)the data given and representations made concerning its Facility(ies)are
true and correct(ii)it is entering into this Agreement to purchase its natural gas requirements only and not for speculative or resale purposes;
and that the natural gas purchased under this Agreement will be consumed at the Facility(ies);(Hi)it is the party of record of the Facility(ies),
or if it is not the party of record,it has the authority to enter into and bind its principal to the Agreement;IN)if any Transaction hereunder gives
Customer the night to adjust the Contract Quantity,or to require CNEG to provide some other quantity of gas,Customer's election to exercise
such right is based predominantly on supply and demand factors related to Customers business; and (v) if Customer is a Governmental
Entity, it will not claim immunity on grounds of sovereignty or similar grounds from enforcement of the Agreement. If it is a Governmental
Entity, Customer covenants to obtain all necessary budgetary approvals, appropriations and funding for all of its obligations under this
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Agreement, the failure of which shall not be an excuse for Governmental Entity's performance or failure to perform hereunder and upon
request will provide proof of such authority. 'Governmental Entity" means a municipality, county, governmental board, governmental
department,commission,agency,bureau,administrative body,joint action agency,court or other similar political subdivision(including public
school districts or special purpose district or authority),or public entity or instrumentality of the United States or one state.
10.Force Majeure. Notwithstanding any other provision of this Agreement, where a Party is unable to carry out any obligation under the
Agreement due to a Force Majeure event(other than a payment obligation,which will not be excused for Farce Majeure),the Agreement will
remain in effect but such obligation will be suspended for the period necessary as a result of the Force Majeure,provided that:(i)me Claiming
Party gives the other Party, as soon as possible, written notice describing the particulars of the Force Majeure; (ii) the suspension of
performance is of no greater scope and of no longer duration than is required by the Force Majeure; and (III) the Claiming Party uses
commercially reasonable efforts to remedy its inability to perform. "Force Majeure means an event that is not within the reasonable control
of the Party claiming Force Majeure("Claiming Party'), and that by the exercise of due diligence,the Claiming Party is unable to overcome
the event in a commercially reasonable manner,and such event will not be deemed a breach or default under the Agreement. Force Majeure
includes,but is not limited to,acts of God;fire;war;terrorism;flood;earthquake;civil disturbance;sabotage;facility failure;strike;curtailment,
disruption or interruption of supply by a supplier or distribution or transportation by a Transporter(including without limitation as the result of
an OFO);declaration of emergency by a Transporteds);regulatory,administrative,or legislative action,or action or restraint by court order or
governmental authority; or any act or omission of a third party not under the control of the Claiming Party (including without limitation the
Utility).
11.Indemnification. Before tiffe passes to Customer at the Delivery Point CNEG shall, and after title passes at the Delivery Point Customer
shall, defend, indemnify and hold harmless the other Party and all its affiliates, and all of their respective officers, directors,shareholders,
associates,employees,agents,representatives,successors and assigns,from and against all claims,losses,expenses(including reasonable
attorneys'fees and court costs),damages,demands,judgments,causes of action or suits of any kind,including but not limited to,claims for
personal injury,death,or property damage,to the extent arising out of or related to this Agreement("Claims").
12.LIMITATION OF LIABILITY.NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT TO THE CONTRARY,THE ENTIRE
LIABILITY OF EACH PARTY FOR ANY AND ALL CLAIMS WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUBJECT IN ALL
CASES TO AN AFFIRMATIVE OBLIGATION ON THE PART OF EACH PARTY TO MITIGATE ITS DAMAGES,AND NEITHER PARTY WILL
BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT
LIMITATION,LOST OPPORTUNITIES OR LOST PROFITS NOT CONTEMPLATED BY THE TERMINATION CALCULATION IN SECTION
7 ABOVE. Customer acknowledges and agrees that the Utility is exclusively responsible for the gas distribution and delivery system,that
CNEG has no independent control over the Utility's systems and will have no liability for any of the Utility's acts or omissions.
13.DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT NO WARRANTY, DUTY, OR REMEDY,WHETHER EXPRESSED,
IMPLIED, OR STATUTORY, IS GIVEN OR INTENDED TO ARISE OUT OF THIS AGREEMENT EXCEPT AS OTHERWISE EXPRESSLY
STATED HEREIN, AND CNEG SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
14.Waiver and Severabllily. Failure to provide notice of,or object to,any default under this Agreement will not operate or be construed as a
waiver of any future default,whether like or different in character. If any portion of this Agreement,or application thereof to any person or
circumstance,is held legally invalid,the remainder will not be affected and will be valid and enforced to the fullest extent permitted by law and
equity, and there will be deemed substituted for the invalid provisions such provisions as will most ready carry out the mutual intent of the
Parties as expressed in this Agreement to the fullest extent permitted by applicable Law; provided, however,that this severe lity provision
will not be applicable if any provision of Sections 6 and 7 of this Master Agreement(or any definition or provision in this Agreement to the
extent it relates to,or is used in connection with,such sections)is held invalid or unenforceable.
15.Assignment. Customer may assign all its rights and obligations under this Agreement; ro>�(a)it gives CNEG forty-five(45)days prior
written notice of its intent to do so; (b)the assignee satisfies in full CNEG's credit requirements; (c)the assignee assumes in writing all of
Customers obligations under the Agreement; and (d) Customer continues to be liable for performance, including payment for goods and
services received,prior to the assignment date.CNEG may assign,sell,pledge,transfer,or encumber any of its rights and obligations under
this Agreement or the accounts, revenues,or proceeds hereof to:(a)a bank,insurer or other financial institution; or(b)any person or entity
(i)succeeding to all or substantially all of CNEG's assets or business or the division or region of CNEG to which this Agreement relates or(it)
into which CNEG is merged or otherwise combined or reorganized; provided(with respect to this clause(b))the succeeding entity agrees to
be bound to the Agreement;or(c)any affiliate of CNEG.
16.ConfidenlialiN. Each Party agrees to keep all terms and provisions of this Agreement and all communication provided in connection with
this Agreement, including the pricing offered to Customer,confidential to the extent not otherwise publicly available and not to disclose them
to any third parties without the prior written consent of the other Party,except as necessary to perform its obligations under this Agreement
or as otherwise required by Law. Each Party may disclose such information to its affiliates and to its affiliates'employees, agents, advisors,
and on a need to know basis, to its independent contractors, provided each such recipient agrees to hold such information in the stddeat
confidence. CNEG may disclose information respecting Customer to third parties that are representing Customer in the purchase of gas or
related services.Furthermore,CNEG may make such other disclosures to third parties of information,including aggregate consumption data,
provided they are in a manner that cannot be reasonably expected to specifically identify Customer. If disclosure of confidential information is
sought through a court,or a state or federal regulatory agency or other legal compulsion,the Party receiving such request will notify the other
Party immediately to afford it the opportunity to appose such disclosure via a protective order or other relief as may be available and will
provide reasonable support.
17.Choice of Law,Vanua.Attorney Foes and Expenses.This Agreement will be governed and interpreted in accordance with the laws of the
State of New York,without giving effect to conflict of law principles. TO THE EXTENT ALLOWED BY APPLICABLE LAW, EACH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY OR TO
INITIATE OR BECOME A PARTY TO ANY CLASS ACTION CLAIMS IN RESPECT OF ANY ACTION,SUIT OR PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.If either Party pursues court action to enforce its rights under this Agreement,the non-prevailing Party shall promptly reimburse
the prevailing Party for all its reasonable attorney fees,expenses and costs.
18.Miscellaneous. The Agreement embodies the Parties' entire agreement and understanding and may not be contradicted by any prior or
contemporaneous oral or written agreement. Notwithstanding any provision to the contrary in a prior agreement,the Parties agree that this
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Master Agreement shall supersede and replace all prior written and oral agreements or arrangements between the Parties with respect to the
purchase and sale of gas and related services and that all transactions under any such prior agreements)are,as of the Effective Date,now
governed solely by the terms of this Master Agreement and shall be Transactions hereunder and a part of the single integrated agreement
between the Parties. A facsimile or e-mailed copy of either Partys signature will be considered an original for all purposes under this
Agreement,and each Party will provide its original signature upon request.No purchase order,or any amendment or edit to this Agreement,
will be valid or given any effect unless signed by both Parties or expressly contained in a TC deemed accepted pursuant to the procedures
set forth herein. The applicable provisions of this Agreement will continue in effect after tennination or expiration hereof to the extent
necessary,including but not limited to providing for final billing,billing adjustments and payments,limitations of liability,the forum and manner
of dispute resolution, and with respect to any indemnification obligations under the Agreement. The section headings used in this Master
Agreement are for reference purposes only and will in no way affect the meaning of the provisions of the Master Agreement. The Parties
acknowledge that any document generated by the Parties with respect to this Agreement, including this Agreement, may be imaged and
stored electronically and such imaged documents may be introduced as evidence in any proceeding as if such were original business records
and neither Party shall contest their admissibility as evidence in any proceeding.The rights,powers,remedies and privileges provided in this
Agreement are cumulative and not exclusive of any rights, powers,remedies and privileges provided by Law. CNEG shall have the right to
set-off and net against any amounts owed to it under the Agreement,including without limitation any early termination payment,any amounts
owed by CNEG to Customer under the Agreement or any other agreement between the Parties, including without limitation any Adequate
Assurance. Except for Section 11 above, no third party will have any rights under this Agreement whatsoever and Customer will be fully
responsible for any compensation owing any third party represenfing Customer in connection with this Agreement and will indemnify,defend
and hold harmless CNEG from all related Claims.To the extent Customer is represented by a broker,agent,association or other third party
(collectively, "Br ), Customer acknowledges and understands that: (i) CNEG may be making a payment to Broker in connection with
Broker's efforts to facilitate Customer and CNEG entering into a Transaction; (it)unless otherwise noted,the Contract Pace reflects the fee,
if any, paid to Broker, and (III) Broker is acting on Customer's behalf as Customer's representative and is not a representative or agent of
CNEG. Customer further authorizes CNEG to utilize Customer's name for publicity and marketing purposes.
19.Affirmation:Acknowledgements.Customer affirms that it has read this Agreement in its entirety and it agrees to the terms and conditions
contained herein. Any ambiguity or question of intent or interpretation under this Agreement will be construed as if drafted jointly by the
Parties,and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of the authorship of any of the provisions
of this Agreement. The Parties acknowledge and agree that: (i) CNEG is an independent contractor under this Agreement and except as
otherwise explicitly provided in this Agreement,neither Party has the authority to execute documents that purport to bind the other,and nothing
in this Agreement will be construed to constitute a joint venture, fiduciary relationship, partnership or other joint undertaking; III)TCs and
Riders entered into hereunder will constitute"forward contracts and/or"swap agreements"under the U.S. Bankruptcy Code, as amended,
the rights of the Parties under Section 7 above will constitute contractual rights to liquidate them,and the Parties are entities entitled to the
rights and protections afforded to"Forward contracts"and "swap agreements"by the U.S. Bankruptcy Code; (III) CNEG is not Customer's
consultant or advisor for any purpose including advice regarding the value or advisability of trading in"commodity interests"as defined in the
Commodity Exchange Act, 7 U.S.C. §§ 1-25, at seq., as amended (the "CEA"), including futures contracts and commodity options or any
other activity which would cause CNEG or any of its affiliates to be considered a commodity trading advisor under the CEA;(iv)each Party is
an"eligible contract participant"as that term is defined in the CEA;and (v)Customer is making its own decisions based solely upon its own
analysis and the advice of as own advisors,if any.
20.Notices. To be effective, all notices must be in writing delivered by hand, by certified mail return receipt requested, by first class mail, or
W.—Press carrier to the addresses provided in this Agreement. CNEG shall send invoices and TCs to the notice address provided herein unless
otherwise directed by Customer. Notice by hand delivery shall be effective on the date it is delivered. Notice by certified mail,return receipt
requested, by that class mail,or express carrier shall be effective on the date that mail is delivered or its delivery is attempted.A Party may
change its address by providing notice of change in accordance herewith or by other means agreed by the Parties.
CNEG Notice Informatlon Customer Notice Informal
9960 Corporate Campus Drive,Suite 20M Legal Notice Information
Louisville,KY 40223 Attention: Title:
Phone:(502)42"500 Address:
Facsimile:(502)2148381 Phone: Facsimile:
Email:
For Invoices fi(different from Notice Information)
Attention: Title:
Address:
Phone: Facsimile:
Email:
For Transaction Confirmations(if different from Notice Information)
Attention: Title:
Address:
Phone: Facsimile:
Email:
(SIGNATURES FOLLOW ON NEXT PAGE)
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EXHIBIT A—FORM OF TRANSACTION CONFIRMATION'
'The actual Transaction Confirmation entered into between Customer and CNEG may differ from this form to reflect state regulatory and other
localrequirements and terms applicable to the Facility. This Form of Transaction Confirmation is forillusbativepurposes only and CNEG reserves
the right to alter its form of Transaction Confirmation at any time.
This Transaction Confirmation is delivered pursuant to and in accordance with a Master Retail Natural Gas Supply Agreement effective
, 20_ (the "Master Agreement'), by and between Constellation NewEnergy — Gas Division, LLC ("CNEG") and
("Customer"),and is subject to and made part of the terms and conditions of such Master Agreement. Capitalized terms used
herein but not defined will have the meanings ascribed to them in the Master Agreement.
Trade Date:
Facility Name:
Delivery Period:
Deal Tyne:
Nature of Parties'Obligation:
Contract Quantity/Price:
Monlh/Yr Contract Quantity In MMBtu Contract Prim
US$Rounded to four decimal places
Plus applicable taxes
Incremental Pricing:
Deliver,Point(s):
UtiliW:
Default Service:To the extent a Facility continues to receive gas from CNEG beyond the Delivery Period,all such gas will be considered month
to month purchases and will be priced at the Market Price.
Special Provisions:
This Transaction Confirmation documents a Transaction previously reached by authorized representatives of the Parties. It is binding
and shall be deemed accepted as the definitive expression of the Transaction unless disputed by Customer in writing within two(2)
business days of CNEG's execution date.
CONSTELLATION NEWENERGY—GAS DIVISION,LLC CUSTOMER
By: By: SAMPLE
Name: Name: NOT FOR EXECUTION
Title Title
Date: Date:
�I E-W n—s,=rnni.--a
OPERATIONS COMMITTEE Meng Dat0 Tg BE. Dir.
07/lti06/16 07/27/1Or6
AGENDA REPORT ItemNumber Item Number
7
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Ed Torres, Director of Operations and Maintenance
SUBJECT: CONTRACT FOR ANIONIC POLYMER, SPECIFICATION NO.
C-2016-751 BD
GENERAL MANAGER'S RECOMMENDATION
A. Approve an agreement to Polydyne, Inc. for the Purchase of Anionic Polymer,
Specification No. C-2016-75113D, for the period September 1, 2016 through
August 31, 2017, for a unit price of $2.605 per active pound delivered, plus
applicable sales tax for a total estimated annual amount of $370,000, with four
one-year renewal options; and
B. Approve a unit price contingency of 10%.
BACKGROUND
Orange County Sanitation District (Sanitation District) has used anionic polymer for over
30 years to improve solids and organics removal efficiencies in the primary clarifiers.
Anionic polymer and ferric chloride are added to the primary influent at both plants to
enhance the removal of organics and improve the settling of suspended solids during
primary treatment. This is referred to as the chemically enhanced primary treatment
(CEPT) process. It is estimated that 121,000 active pounds of anionic polymer will be
required during this contract period.
RELEVANT STANDARDS
• Comply with the Clean Water Act
• Highly reliable water delivery to GWRS
• Meet discharge permit 24/7/365
PROBLEM
Solids and organics not captured and removed in the primary treatment process are
converted into biological solids in the secondary treatment process which are more
difficult and costly to de-water and dispose of.
PROPOSED SOLUTION
Continue with the addition of Anionic Polymerwhich has been effective in improving solids
removal efficiencies in the primary clarifiers resulting in reduced operating costs.
Page 1 of 2
TIMING CONCERNS
Our current contract expires August 31, 2016 with zero (0) remaining renewals.
RAMIFICATIONS OF NOT TAKING ACTION
If anionic polymer is not used in the primaries, it will result in increased solids and organics
loadings to the secondary plants resulting in increased operating costs.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
In accordance with Purchasing Ordinance No. OCSD47, the Sanitation District selected
a 2-step bidding process which included a Request for Qualifications (RFQ) and a Notice
Inviting Bids (NIB). Of the two companies that submitted their samples for testing only
one, Polydyne, met the requirements. The other prospective bidder, Solenis, provided a
sample that did not comply with our specifications listed in the RFQ and was therefore
disqualified.
Polydyne subsequently placed a bid for two polymer types that had successfully passed
the testing process. Staff recommends awarding to the responsive and responsible
bidder, Polydyne Inc. for the purchase of Anionic Polymer, type MC-136.
Summary information on the Anionic Polymer bid is as follows:
Bidder Polymer Type Amount of Bid
Polydyne, Inc WE-1542 $2.615
Polydyne, Inc MC-136 $2.605
CEQA
N/A
BUDGET/PURCHASING ORDINANCE COMPLIANCE
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted in the Operating Budget, Division 830, Supplies
(Section 6, p.84) and Division 840, Supplies (section 6, page 88).
Date of Approval Unit Price Contincencv
07/27/16 $2.605 10%
Page 2 of 2
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (wwwocsd.corn with the
complete agenda package:
• Purchase Agreement
Page 3 0(2
AGREEMENT
FOR PURCHASE OF LIQUID ANIONIC POLYMER
SPECIFICATION NO. C-2016-751BD
THIS AGREEMENTis made and entered into as of the date fully executed below, by and between
Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue,
Fountain Valley, CA 92708-7018 (hereinafter referred to as "OCSD") and Polydyne, Inc. with a
principal place of business at One Chemical Plant Road, Riceboro, GA 31323 (hereinafter
referred to as "Supplier")collectively referred to as the "Parties".
WITNESSETH
WHEREAS, OCSD requires Liquid Anionic Polymer in its sewage treatment process and has
prepared Specifications (attached hereto and incorporated herein by reference as Exhibit"A")for
the purchase of said Liquid Anionic Polymer;
WHEREAS, sealed bids for the Purchase of Liquid Anionic Polymer, Specification No. C-2016-
751 BD were solicited, received and opened on May 19, 2016; and
WHEREAS, on July 27, 2016, the Board of Directors of OCSD, by minute order, authorized
execution of this Agreement between OCSD and Supplier; and
WHEREAS, OCSD has chosen Supplier to provide Liquid Anionic Polymer in accordance with
Ordinance No. OCSD-47; and
NOW, THEREFORE, in consideration of the promises and mutual benefits exchanged between
the Parties, it is mutually agreed as follows:
1. Introduction
1.1 This Agreement and all exhibits hereto (called the "Agreement') is made by OCSD and
Supplier. The terms and conditions herein exclusively govern the purchase of Liquid Anionic
Polymer as described in the Scope of Work, attached hereto and incorporated herein by reference
as Exhibit"A".
1.2 Exhibits to this Agreement are incorporated by reference and made a part of this
Agreement as though fully set forth at length herein Exhibits to this Agreement are as follows in
order of precedence:
Exhibit"A" Scope of Work
Exhibit'B" Bid Price Form
Exhibit"C' Acknowledgement of Insurance Requirements
Exhibit"D" OCSD Safety Standards
1.3 In the event of any conflict or inconsistency between the provisions of this Agreement and
any of the provisions of the exhibits hereto, the provisions of this Agreement shall in all respects
govern and control.
2. Delivery
2.1 LOCATIONS: Deliveries shall be made to Plant 1 located at 10844 Ellis Avenue, Fountain
Valley, CA 92708 and Plant 2 located at 22212 Brookhurst Street, Huntington Beach, CA 92646.
Deliveries shall be made in accordance with Exhibit"A".
Orange County Sanitation District 1 of 8 Specification No. C-2016-751BD
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2.2 OCSD will pay only for the actual gallons of Liquid Anionic Polymer delivered, based upon
certified tare weight and net weight. Gallons invoiced by Supplier and payable by OCSD will be
for the total net gallons of Liquid Anionic Polymer delivered (loaded gross weight minus the tare
weight). Tare weight shall be determined immediately after each delivery and prior to cleaning,
emptying or clearing the delivery tank.
2.3 A delivery statement shall accompany all shipments and state the weight,gallons, specific
gravity of the product and percent delivered.
3. Possession
Ownership and control of all Liquid Anionic Polymer delivered pursuant to this Agreement
shall remain solely and exclusively with Supplier, until complete transfer of possession by delivery
to OCSD at the designated locations is made from Supplier.
4. Quand
4.1 OCSD makes no guarantee to actual use or quantity of Liquid Anionic Polymer purchased.
Use may be sporadic based on the wastewater treatment requirements unique to each treatment
plant.
4.2 OCSD will, through the term of this Agreement, purchase Liquid Anionic Polymer from
Supplier exclusively, except when OCSD determines Supplier cannot make delivery within the
time specified, with the quality and quantity specified, at the Agreement price, the level of service
is inadequate, OCSD unapproved increase in active dry pound rate or for any other default or
breach of this Agreement. In such event, OCSD may purchase Liquid Anionic Polymer elsewhere
and charge Supplier any difference in the delivered price to OCSD from that provided in this
Agreement, or alternatively, OCSD may terminate the Agreement based on said breach or failure
to deliver the specified product. Quality control tests will be performed by OCSD on the delivered
Liquid Anionic Polymer to ensure that Specifications are attained.
5. Pricina and Invoicina
5.1 Supplier will invoice monthly for delivered Liquid Anionic Polymer per Exhibit "A", and at
the price(s) listed in the Bid Price Form (attached hereto and incorporated herein by reference as
Exhibit "B"). Prices shall include all cartage and taxes per gallon except California State Sales
Tax. The sales tax will be paid by OCSD.
5.2 OCSD shall pay, Net 30 days, upon receipt and approval by the OCSD Project Manager,
or designee of itemized invoices, submitted in duplicate, in a form acceptable to OCSD to enable
audit of the charges thereon. All invoices must reference the Purchase Order Number. Supplier
will mail the invoices to Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley,
CA 92708, attention Accounts Payable. All invoices shall include a description of the delivery
location,the delivery date and the unit price.All cash discounts shall be taken and computed from
the date of completion of tasks or acceptance of equipment, material, installation and training, or
from the date of receipt of invoice, whichever occurs last.
6. Modifications
6.1 This Agreement may be modified or changed only by written instrument in the form of an
amendment to this Agreement signed by both Parties.
Orange County Sanitation District 2 of 8 Specification No. C-2016-751BD
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6.2 Pricing modifications: The prices established in this Agreement shall remain firm for the
one-year Agreement term.Quarterly pricing will not be accepted.Any adjustments made will allow
for increases or decreases in the manufactured cost of the Liquid Anionic Polymer and will be
based upon OCSD validated information furnished by Supplier and OCSD sources. Adjustments
will only be reviewed on an annual basis. OCSD reserves the right to agree with or reject the
proposed price increase or decrease.
6.3 Price changes may be made through the OCSD Purchase Order Process.
7. Agreement Term
The purchase of Liquid Anionic Polymer under this Agreement shall be for the period of
one (1)year commencing on September 1, 2016 and continuing through August 31, 2017.
8. Renewals
8.1 OCSD may exercise the option to renew the Agreement for up to four(4)one-year periods
based upon the criteria set forth in Exhibit "A", if mutually acceptable terms can be negotiated.
OCSD shall make no obligation to renew nor give reason if it elects not to renew. The prices
established in the original Agreement may be adjusted.The adjustment will allow for any increase
or decrease in the manufactured cost of the Liquid Anionic Polymer and will be based upon OCSD
validated information furnished by Supplier and OCSD sources.Adjustments will only be reviewed
on an annual basis. OCSD reserves the right to agree with or reject the proposed price increase
or decrease.
8.2 Renewals may be made through the OCSD Purchase Order Process.
9. Termination
9.1 OCSD reserves the right to terminate this Agreement for its convenience, with or without
cause, in whole or in part, at any time, by written notice to Supplier from OCSD. Upon receipt of
a termination notice,Supplier shall immediately discontinue all work under this Agreement(unless
the notice directs otherwise). OCSD shall thereafter, within thirty (30)days, pay Supplier for work
performed(cost and fee)to the date of termination.Supplier expressly waives any claim to receive
anticipated profits to be earned during the uncompleted portion of the Agreement. Such notice of
termination shall terminate this Agreement and release OCSD from any further fee, cost or claim
hereunder by Supplier other than for work performed to the date of termination.
9.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD's
determination that Supplier is not meeting specification requirements for delivery of quantities
needed, the level of service is inadequate, for poor quality of product, for OCSD unapproved
increase in rate, or any other default or breach of this Agreement.
9.3 OCSD may also terminate the Agreement for default in whole or in part by written notice
to Supplier from OCSD:
9.3.1 if Supplier becomes insolvent or files a petition under the Bankruptcy Act; or
9.3.2 if Supplier sells its business; or
9.3.3 if Supplier breaches any of the terms of this Agreement.
9.4 All OCSD property in the possession or control of Supplier shall be returned by Supplier
to OCSD upon demand, or at the termination of this Agreement, whichever occurs first.
Orange County Sanitation District 3 of 8 Specification No. C-2016-751BD
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10. Indemnification and Hold Harmless
Supplier shall assume all responsibility for damages to property and/or injuries to persons,
including accidental death,which may arise out of or be caused by Supplier's services under this
Agreement, or by its subcontractor or by anyone directly or indirectly employed by Supplier, and
whether such damage or injury shall accrue or be discovered before or after the termination of
the Agreement. Except as to the sole active negligence of orwillful misconduct of OCSD, Supplier
shall indemnify, protect, defend and hold harmless OCSD, its elected and appointed officials,
officers, agents and employees, from and against any and all claims, liabilities, damages or
expenses of any nature, including attorneys' fees: (a) for injury to or death of any person or
damage to property or interference with the use of property, arising out of or in connection with
Supplier's performance under this Agreement, and/or (b) on account of any goods and services
provided under this Agreement. This indemnification provision shall apply to any acts or
omissions, willful misconduct, or negligent misconduct, whether active or passive, on the part of
Supplier of or anyone employed by or working under Supplier. To the maximum extent permitted
by law, Supplier's duty to defend shall apply whether or not such claims, allegations, lawsuits, or
proceedings have merit or are meritless, or which involve claims or allegations that any of the
parties to be defended were actively, passively, or concurrently negligent, or which otherwise
assert that the parties to be defended are responsible, in whole or in part, for any loss, damage,
or injury. Supplier agrees to provide this defense immediately upon written notice from OCSD,
and with well qualified, adequately insured, and experienced legal counsel acceptable to OCSD.
11. Insurance
Supplier shall purchase and maintain, throughout the life of this Agreement and any
periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the
signed Acknowledgement of Insurance Requirements (attached hereto and incorporated herein
by reference as Exhibit "C"). Supplier shall not commence work under this Agreement until all
required insurance is obtained in a form acceptable to OCSD, nor shall Supplier allow any
subcontractor to commence service pursuant to a subcontract until all insurance required of the
subcontractor has been obtained. Failure to maintain required insurance coverage shall result in
termination of this Agreement.
12. Eauipment Loss
OCSD will be responsible for any loss or damage to Supplier-owned equipment, when
OCSD determines OCSD is at fault, and will reimburse Supplier for such loss or damage upon
receipt of invoices, less a deduction for any amount determined to be the fault of Supplier.
13. Conflict of Interest and Reporting
Supplier shall at all times avoid conflict of interest or appearance of conflict of interest in
performance of this Agreement.
14. Supplier's Relationship to OCSD
Supplier's relationship to OCSD in the performance of this Agreement is that of an
independent contractor. The personnel performing services under this Agreement shall, at all
times, be under Supplier's exclusive direction and control, and shall be employees of Supplier
and not employees of OCSD. Supplier shall pay all wages, salaries and other amounts due its
employees in connection with this Agreement, and shall be responsible for all legal reports and
obligations respecting them, such as social security, income tax withholding, unemployment
compensation, worker's compensation and similar matters.
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15. Safety and Accident Prevention
15.1 General: In addition to the requirements set forth in Exhibit "A", Supplier shall meet with
personnel from OCSD'S Risk Management Division to review safety and accident prevention
policies and procedures prior to its initial delivery. All subcontractors should be present at this
meeting. Supplier is responsible to inform all subcontractors of the items discussed at this
meeting. This meeting shall occur within five (5) working days of the effective date of the Notice
to Proceed.
16. Drug-Free Workplace
All employees of Supplier who will perform work under this Agreement must adhere to the
California Drug-Free Workplace Act, Government Code Sections 8350 through 8357.
17. Assianments
Neither this Agreement nor any interest herein or any claim hereunder may be assigned
by Supplier either voluntarily or by operation of law, nor may all or substantially all of this
Agreement be further subcontracted by Supplier without the prior written consent of OCSD.
16. Attornev's Fees
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements, in addition to any other relief to which it may be entitled.
19. Permits. Ordinances and Regulations
Any and all fees required by Federal, State, County, City and/or local laws, codes and/or
tariffs that pertain to work performed under the terms of this Agreement shall be paid by Supplier.
Fees demanded for obtaining certificates, including associated inspection fees and expenses of
regulatory body inspectors shall be paid by Supplier.
20. Training Certification
When required by regulation, certificates of training shall be maintained on-site for the
duration of the activity that requires an employee of Supplier to be certified. Certificates shall be
current. Lack of certificates when required will be cause for removal of offending personnel from
the site, termination of the Agreement, or both.
21. Compliance With Law
Supplier warrants that under the performance of this Agreement, it shall comply with all
applicable Federal, State and local laws, and all lawful orders rules and regulations thereunder.
In connection with the execution of this Agreement, Supplier shall not discriminate against
employees or an applicant for employment because of race, religion, color, sex or national origin.
Supplier shall take affirmative action to ensure that applicants are employed and employees are
treated during their employment without regard to their race, religion, color, sex or national origin.
Such action shall include, but not be limited to, the following: employment, upgrading, demotion
or transfer; recruitment or recruitment advertising; lay-off or termination; rate of pay,or other forms
of compensation; and selection for training, including apprenticeship.
22. Disputes
22.1 This Agreement shall be governed by and interpreted under the laws of the State of
California and the Parties submit to jurisdiction in Orange County, in the event any action is
brought in connection with this Agreement or the performance thereof. Pending final resolution of
a dispute hereunder, Supplier shall proceed diligently with the performance of this Agreement and
in accordance with OCSD'S decision.
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22.2 In the event of a dispute as to the construction or interpretation of this Agreement, or any
rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute
by mediation.The Parties shall mutually select a mediatorto facilitate the resolution of the dispute.
If the Parties are unable to agree on a mediator, the mediation shall be conducted in accordance
with the Commercial Mediation Rules of the American Arbitration Agreement, through the
alternate dispute resolution procedures of Judicial Arbitration through Mediation Services of
Orange County ("JAMS"), or any similar organization or entity conducting an alternate dispute
resolution process.
22.3 In the event the Parties are unable to timely resolve the dispute through mediation, the
issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure,
Part 3, Title 9, Sections 1280 at seq. For such purpose, an agreed arbitrator shall be selected, or
in the absence of Agreement, each Party shall select an arbitrator, and those two (2) arbitrators
shall select a third. Discovery may be conducted in connection with the arbitration proceeding
pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator, or three (3)
arbitrators acting as a board, shall take such evidence and make such investigation as deemed
appropriate and shall render a written decision on the matter in question. The arbitrator shall
decide each and every dispute in accordance with the laws of the State of California. The
arbitrator's decision and award shall be subject to review for errors of fact or law in the Superior
Court for the County of Orange, with a right of appeal from any judgment issued therein.
23. Right to Review Services. Facilities. and Records
23.1 OCSD reserves the right to review any portion of the services performed by Supplier under
this Agreement, and Supplier agrees to cooperate to the fullest extent possible. Supplier shall
furnish to OCSD such reports, statistical data, and other information pertaining to Supplier's
services as shall be reasonably required by OCSD to carry out its rights and responsibilities under
its agreements with its bondholders or noteholders and any other agreement relating to the
development of the project(s) and in connection with the issuance of its official statements and
other prospectuses with respect to the offering, sale, and issuance of its bond and other
obligations.
23.2 The right of OCSD to review or approve drawings, specifications, procedures, instructions,
reports, test results, calculations, schedules, or other data that are developed by Supplier shall
not relieve Supplier of any obligation set forth herein.
24. Incorporated Documents
24.1 In the event of any conflict or inconsistency between the provisions of this Agreement and
any of the provisions of the other incorporated documents, the provisions of this Agreement shall
in all respects govern and control.
25. Severability
Any provision of this Agreement which is found to be invalid or unenforceable shall be
ineffective to the extent of such invalidity or unenforceability, and the invalidity or unenforceability
of such provision shall not affect the validity or enforceability of the remaining provisions hereof.
26. Waiver
The waiver of either Party of any breach or violation of, or default under, any provision of
this Agreement, shall not be deemed a continuing waiver by such Party of any other provision or
of any subsequent breach or violation of this Agreement or default thereunder.
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27. Breach
Any breach by Supplier to which OCSD does not object shall not operate as a waiver of
OCSD to seek remedies available to it for any subsequent breach.
26. Public Contracts Law
OCSD is subject to the provisions listed in the prevailing wage determination made by the
Director of Industrial Relations pursuant to California Labor Code part 7, Chapter 1, Article 2,
Sections 1770, 1773 and 1773.1. It is agreed that all provisions of law applicable to public
contracts are part of this Agreement to the same extent as though set forth herein and will be
complied with by Supplier. Supplier shall not pay less than the prevailing wage.
29. South Coast Air Quality Management District's (SCAQMD) Requirements
It is Supplier's responsibility that all equipment furnished and installed be in accordance
with the latest rules and regulations of the South Coast Air Quality Management District
(SCAQMD). All Agreement work practices, which may have associated emissions shall comply
with the appropriate rules and regulations of the SCAQMD.
30. Performance
Time is of the essence in the performance of the provisions hereof.
31. Familiarity with Work
By executing this Agreement, Supplier warrants that: 1) it has investigated the work to be
performed; 2) it has investigated the site of the work and is aware of all conditions there; and 3)it
understands the facilities, difficulties and restrictions of the work under this Agreement. Should
Supplier discover any latent or unknown conditions materially differing from those inherent in the
work or as represented by OCSD, it shall immediately inform OCSD of this and shall not proceed,
except at Supplier's risk, until written instructions are received from OCSD.
32. Damage to OCSD'S Pronerty
Any OCSD property damaged by Supplier,any subcontractor,or by the personnel of either
will be subject to repair or replacement by Supplier at no cost to OCSD.
33. Third Party Rights
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than OCSD and Supplier.
34. Authority to Execute
The persons executing this Agreement on behalf of the Parties warrant that they are duly
authorized to execute this Agreement and that by executing this Agreement, the Parties are
formally bound.
35. Read and Understood
By signing this Agreement, Supplier represents that it has read and understood the terms
and conditions of the Agreement.
36. Entire Agreement
This Agreement constitutes the entire agreement of the Parties and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings, and negotiations
between the Parties with respect to the subject matter hereof.
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37. Notices
All notices under this Agreement must be in writing. Written notice shall be sent by
registered or certified mail, postage prepaid, return receipt requested, or by any other overnight
delivery service which delivers to the noticed destination and provides proof of delivery to the
sender. Any facsimile notice must be followed within three (3) days by written notice. All notices
shall be effective when first received at the following addresses:
OCSD: Larry Roberson
Senior Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708
Supplier: Boyd Stanley
Business Director
Polydyne, Inc.
One Chemical Plant Road
Riceboro, GA 31323
IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this
Agreement to be signed by the duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT
Dated: By:
Chair, Board of Directors
Dated: By:
Clerk of the Board
Dated: By:
Contracts/Purchasing Manager
POLYDYNE, INC.
Dated: By:
Print Name and Title of Officer
IRS Employer's I.D. Number
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OPERATIONS COMMITTEE Meeting Dare TOBd.ofDir.
07/O6/16 07/27/16
AGENDA REPORT Item Number Item Number
s
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: 2017 FACILITIES MASTER PLAN — PROJECT PS15-10
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Professional Services Agreement with Carollo Engineers, Inc. to
provide professional services for 2017 Facilities Master Plan, Project PS15-10,for
an amount not to exceed $3,132,052; and
B. Approve a contingency of$313,205 (10%).
BACKGROUND
The Orange County Sanitation District (Sanitation District) has managed its facilities
through the preparation and implementation of master plans. Previous master planning
efforts included the 1999 Strategic Plan; a 2002 Strategic Plan Update; a 2006 Collection
System Model and Strategic Plan Update; and a 2009 Facilities Master Plan, which
included an Energy Master Plan.
Since the last master planning effort, the Sanitation District has been working towards
creating a more comprehensive Capital Improvement Program (CIP) plan. The
Engineering Planning Division has been developing a 20-year planning window forfacility
rehabilitation, refurbishment, and replacement. Planning Division staff have been
collaborating with Operations and Maintenance staff to evaluate the condition, capacity,
level of service requirements, and technology opportunities in each treatment plant
process area and in the collections systems. To address these needs and issues, a list
of potential rehabilitation, refurbishment or replacement projects with scope elements has
been developed for the next 20 years. The 2017 Facilities Master Plan will validate the
scope elements for these projects, prioritize the projects, and develop a CIP plan for the
next 20 years. The 2017 Facilities Master Plan will serve as the Sanitation District's
roadmap to our 20-year CIP plan and future rate structure decisions, and will be the basis
of a Programmatic Environmental Impact Report.
RELEVANT STANDARDS
• 20-year planning horizons
• Anticipate and plan for future regulations and legal requirements
• Long-term view that appropriately funds capital improvement programs
• Maintain a proactive asset management program
Page 1 of 4
PROBLEM
The current five-year rate structure ends in 2018. The Sanitation District is planning to
conduct a sewer rate study in 2017 to determine the rate structure for the next five years.
A validated and defensible CIP plan is needed in order to conduct the rate study.
PROPOSED SOLUTION
Prepare a Facilities Master Plan by 2017.
TIMING CONCERNS
The Facilities Master Plan document must be completed by June 2017 to allow the
timely preparation of the 2017 sewer rate study.
RAMIFICATIONS OF NOT TAKING ACTION
The Sanitation District will have insufficient information to prepare the sewer rate study.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
Request for Proposal:
A Request for Proposal (RFP) which describes the Consultant's Scope of Work required
for the project was advertised on April 6, 2016. Proposals were received on May 9, 2016
from two teams: Carollo Engineers; and CDM Smith. A Staff Evaluation Committee
consisting of three representatives from the Engineering Department reviewed and
ranked each of the proposals in accordance with the evaluation process set forth in OCSD
Ordinance No. OCSD-47. One representative from the Contracts Administration Division,
and another representative from the Engineering Department, participated in the
evaluation process as non-voting members. The proposals were evaluated according to:
(1) project understanding and approach; (2) applicable related project experience; and
(3) project team and staff qualifications. The Evaluation Committee reviewed the
proposals and invited both teams for an interview to meet the key team members and
further evaluate the teams' qualifications. The interview took place on June 1, 2016.
Pursuant to the results of the interview, the Evaluation Committee selected Carollo
Engineers, Inc. as the top-ranked firm as shown in Table 1.
Page 2 of 4
TABLE 1
PROPOSAL EVALUATION*
Consultant Evaluator Carollo Engineers, Inc. CDM-Smith
Reviewer A 1 2
Reviewer B 1 2
Reviewer C 1 2
Overall Ranking 1 2
Proposal Fee $3,236,392
Negotiated Fee Proposal $3,132,052
Based on scores after interview
Carollo Engineers proposed a highly qualified team that has significant related experience
and a detailed work plan based on extensive knowledge of Sanitation District's facilities,
which is essential in meeting the tight schedule for this project. Their proposal
demonstrated their understanding of the challenges of preparing a 20-year CIP that
addresses the Sanitation District's future needs, and is justifiable and comprehensive, yet
minimizes impact to the rate structure. Their project prioritization approach will allow the
Sanitation District to deliver the right projects at the right time.
Review of Fee Proposal and Negotiations:
Proposals were accompanied by sealed fee proposals. In accordance with OCSD
Ordinance No. OCSD-47, the fee proposal of only the highest ranked firm was opened
after approval by the Director of Engineering of the Evaluation Committee's
recommendation. Staff conducted negotiations with Carollo Engineers, Inc. to clarify the
requirements of the Scope of Work, the assumptions used for the estimated level of effort,
and the proposed approach to meet the goals and objectives for the project.
In evaluating whether the fee proposal was fair and reasonable, the following factors were
considered:
• The estimated level of effort was evaluated in detail for task and subtask, and was
found to be justified by the needs of the project, the agreed upon assumptions,
and the Sanitation District's expectation for the quality of services.
• The Consultant's fringe and overhead costs, which factor into the billing rate, is
reasonable and lower than other similar agreements. The contract profit is 6.75%,
which is based on the Sanitation District's standard design agreements.
Based on the above, staff has determined that the final negotiated fee is fair and
reasonable for the level of effort required for this project and recommends award of the
Professional Services Agreement to Carollo Engineers, Inc.
Page 3 of 4
CEQA
The proposed Facilities Master Plan is a fiscal planning tool for possible future actions
which does not commit the Sanitation District to implement any specific project. The
proposed Facilities Master Plan will analyze and make recommendations regarding
potential infrastructure improvements that may be needed to ensure that the Sanitation
District continues to meet its critical health and safety mandate. The Facilities Master
Plan will therefore take environmental factors into account.
The Sanitation District, as lead agency, has therefore determined that the preparation of
the proposed Facilities Master Plan is exempt from CEQA pursuant to CEQA Guidelines
Section 15262. [Feasibility and Planning Studies]. The Sanitation District will file a
Notice of Exemption accordingly.
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance No. OCSD47. Budget for the project, PS15-10, 2017 Facilities Master Plan,
is included in the Master Planning Studies budget for Fiscal Years 2016-17 and 2017-18.
(Line item: Section 8, Page 78).
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package:
Draft Professional Services Agreement
EY:sa:gc
Page 4 of 4
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into to be effective the 2n day of July, 2016,
by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as
"SANITATION DISTRICT", and sCompany», for purposes of this AGREEMENT hereinafter
referred to as "CONSULTANT'. The SANITATION DISTRICT and CONSULTANT are referred
to herein collectively as the "Parties" or individually as a "Party."
WITNESSETH:
WHEREAS, the SANITATION DISTRICT desires to engage a consultant for 2017
Facilities Master Plan, Project No. PS75-10, to provide professional services for facilities
master planning for the water and wastewater industry and update the 2009 Facilities Master
Plan; and,
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary professional services; and,
WHEREAS, the SANITATION DISTRICT has adopted procedures for the selection of
professional services and has proceeded in accordance with said procedures to select
CONSULTANT to perform this work; and,
WHEREAS, at its regular meeting on July 27, 2016 the Board of Directors, by Minute
Order, accepted the recommendation of the Operations Committee to approve this
AGREEMENT between the SANITATION DISTRICT and CONSULTANT.
NOW, THEREFORE, in consideration of the promises and mutual benefits, which will
result to the parties in carrying out the terms of this AGREEMENT, it is mutually agreed as
follows:
1. SCOPE OF WORK
CONSULTANT agrees to furnish necessary professional services to accomplish those
project elements outlined in the Scope of Work attached hereto as "Attachment A", and
by this reference made a part of this AGREEMENT.
A. The CONSULTANT shall be responsible for the professional quality, technical
accuracy, and completeness and coordination of the work and services furnished
by the CONSULTANT under this AGREEMENT, including the work performed by
its Subconsultants. Where approval by the SANITATION DISTRICT is indicated,
it is understood to be conceptual approval only and does not relieve the
CONSULTANT of responsibility for complying with all applicable laws,
regulations, codes, industry standards and liability for damages caused by errors,
omissions, noncompliance with industry standards, and/or negligence on the part
of the CONSULTANT or its Subconsultants.
B. CONSULTANT is responsible for the quality of work prepared under this
AGREEMENT and shall ensure that all work is performed to the highest industry
standards for clarity, uniformity, and completeness. CONSULTANT shall timely
respond to all comments, suggestions, and recommendations from the
PSA PROJECT NO.PS15-10
Revised 122215 2017 FACILITIES MASTER PLAN
Page 1 of 19
SANITATION DISTRICT. All comments from the SANITATION DISTRICT, or its
agent, shall be incorporated into the work prior to the next review deadline or
addressed, in writing, as to why the comment(s) has/have not been incorporated.
CONSULTANT shall ensure that each submittal is 100% accurate for the level of
work submitted (i.e. correct references, terms, capitalization or equal status,
spelling, punctuation, etc.)
C. In the event that CONSULTANTS services and/or work product(s) is not to the
satisfaction of the SANITATION DISTRICT and/or does not conform to the
requirements of this AGREEMENT or the applicable industry standards, the
CONSULTANT shall, without additional compensation, promptly correct or revise
any errors or deficiencies in its work product(s)within the timeframe specified by
the Project Manager. The SANITATION DISTRICT may charge to
CONSULTANT all costs, expenses and damages associated with any such
corrections or revisions.
D. Any CADD drawings, figures, and other work produced by CONSULTANT and
Subconsultants using the SANITATION DISTRICT CAD Manual. Conversion of
CADD work from any other non-standard CADD format to the SANITATION
DISTRICT format shall not be acceptable in lieu of this requirement.
Electronic files shall conform to the SANITATION DISTRICT specifications. Any
changes to these specifications by the CONSULTANT are subject to review and
require advance written approval of the SANITATION DISTRICT.
Electronic files shall be subject to an acceptance period of thirty (30)calendar
days during which the SANITATION DISTRICT shall perform appropriate reviews
and including CAD Manual compliance. CONSULTANT shall correct any
discrepancies or errors detected and reported within the acceptance period at no
additional cost to the SANTITATION DISTRICT.
E. All professional services performed by the CONSULTANT, including, but not
limited to, all drafts, data, correspondence, proposals, and reports compiled or
composed by the CONSULTANT, pursuant to this AGREEMENT, are for the sole
use of the SANITATION DISTRICT, its agents and employees. Neither the
documents nor their contents shall be released to any third party without the prior
written consent of the SANITATION DISTRICT. This provision does not apply to
information that(a)was publicly known, or otherwise known to the
CONSULTANT, at the time that it was disclosed to the CONSULTANT by the
SANITATION DISTRICT, or(b) subsequently becomes publicly known to the
CONSULTANT other than through disclosure by the SANITATION DISTRICT.
2. COMPENSATION
Total compensation shall be paid to CONSULTANT for services in accordance with the
following provisions:
A. Total Compensation
Total compensation shall be in an amount not to exceed eGrand Total Written
Amount)) Dollars ($eGrand Total Amounts). Total compensation to
PSA PROJECT NO.PS15-10
Revised 122215 2017 FACILITIES MASTER PLAN
Page 2 of 19
CONSULTANT including burdened labor (salaries plus benefits), overhead,
profit, direct costs, and Subconsultant(s)fees and costs shall not exceed the sum
set forth in Attachment"E" - Fee Proposal.
B. Labor
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall pay to CONSULTANT a sum equal to the
burdened salaries (salaries plus benefits)actually paid by CONSULTANT
charged on an hourly-rate basis to this project and paid to the personnel of
CONSULTANT. Upon request of the SANITATION DISTRICT, CONSULTANT
shall provide the SANITATION DISTRICT with certified payroll records of all
employees' work that is charged to this project.
C. Overhead
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall compensate CONSULTANT and Subconsultants
for overhead at the rate equal to the percentage of burdened labor as specified in
Attachment"E"- Fee Proposal.
D. Profit
Profit for CONSULTANT and Subconsultants shall be a percentage of consulting
services fees (Burdened Labor and Overhead). When the consulting or
subconsulting services amount is $250,000 or less, the maximum Profit shall be
10%. Between $250,000 and $2,500,000, the maximum Profit shall be limited by
a straight declining percentage between 10% and 5%. For consulting or
subconsulting services fees with a value greater than $2,500,000, the maximum
Profit shall be 5%. Addenda shall be governed by the same maximum Profit
percentage after adding consulting services fees.
As a portion of the total compensation to be paid to CONSULTANT and
Subconsultants, the SANITATION DISTRICT shall pay profit for all services
rendered by CONSULTANT and Subconsultants for this project according to
Attachment"E"- Fee Proposal.
E. Subconsultants
For any Subconsultant whose fees for services are greater than or equal to
$100,000 (excluding out-of-pocket costs), CONSULTANT shall pay to
Subconsultant total compensation in accordance with the Subconsultant amount
specified in Attachment"E"- Fee Proposal.
For any Subconsultant whose fees for services are less than $100,000,
CONSULTANT may pay to Subconsultant total compensation on an hourly-rate
basis per Attachment"K"— Hourly Rate Schedule for Minor Subconsultants and
as specified in the Scope of Work. The SANITATION DISTRICT shall pay to
CONSULTANT the actual costs of Subconsultant fees and charges in an amount
not to exceed the sum set forth in Attachment"E"- Fee Proposal.
PSA PROJECT NO.P515-10
Revised 122215 2017 FACILITIES MASTER PLAN
Page 3 of 19
F. Direct Costs
The SANITATION DISTRICT shall pay to CONSULTANT and Subconsultants
the actual costs of permits and associated fees, travel and licenses for an
amount not to exceed the sum set forth in Attachment"E"- Fee Proposal. The
SANITATION DISTRICT shall also pay to CONSULTANT actual costs for
equipment rentals, leases or purchases with prior approval of the SANITATION
DISTRICT. Upon request, CONSULTANT shall provide to the SANITATION
DISTRICT receipts and other documentary records to support CONSULTANT's
request for reimbursement of these amounts, see Attachment"D"-Allowable
Direct Costs. All incidental expenses shall be included in overhead pursuant to
Section 2 -COMPENSATION above.
G. Reimbursable Direct Costs
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable
travel and business expenses as described in this section and further described in
Attachment"D"-Allowable Direct Costs to this Agreement. The reimbursement of
the above mentioned expenses will be based on an "accountable plan' as
considered by Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
http://www.gsa.gov/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical
means or management of reimbursable costs inclusive but not limited to travel,
lodging and meals arrangements. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem" as deemed the most
practical.
CONSULTANT shall be responsible for returning to the SANITATION DISTRICT
any excess reimbursements after the reimbursement has been paid by the
SANITATION DISTRICT.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in
advance.
Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT geographical area which includes Orange, Los Angeles, Ventura, San
Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile
mileage is reimbursable if CONSULTANT is required to utilize personal vehicle
for local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed
at the discretion of the SANITATION DISTRICT based on reasonableness of
meeting schedules and the amount of time required for travel by the
PSA PROJECT NO.PS15-10
Revised 122215 2017 FACILITIES MASTER PLAN
Page 4 of 19
CONSULTANT. Such determination will be made on a case-by-case basis and at
the discretion of the SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by IRS shall be utilized for travel
meals reimbursements. Per diem rates shall be applied to meals that are
appropriate for travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"-Allowable Direct Costs of this Agreement.
H. Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Proposal will exceed seventy-fiver percent(75%)
of the not-to-exceed amount of the Agreement, including approved additional
compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional
amount necessary to complete the services. Any cost incurred in excess of the
approved not-to-exceed amount, without the express written consent of the
SANITATION DISTRICT's authorized representative shall be at CONSULTANT's
own risk. This written notice shall be provided separately from, and in addition to
any notification requirements contained in the CONSULTANT's invoice and
monthly progress report. Failure to notify the SANITATION DISTRICT that the
services cannot be completed within the authorized not-to-exceed amount is a
material breach of this Agreement.
3. REALLOCATION OF TOTAL COMPENSATION
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to
approve a reallocation of the incremental amounts constituting the Total Compensation,
provided that the Total Compensation is not increased.
4. PAYMENT
A. Monthly Invoice: CONSULTANT shall include in its monthly invoice, a detailed
breakdown of costs associated with the performance of any corrections or
revisions of the work for that invoicing period, in a format acceptable to the
SANITATION DISTRICT. CONSULTANT shall warrant and certify the accuracy
of these costs and provide all support documentation required by the
SANITATION DISTRICT. CONSULTANT understands that submitted costs are
subject to Section 11 Audit Provisions.
B. CONSULTANT will submit monthly statements covering services and/or work
performed for payment for those items included in Section 2 hereof no later than
the second Wednesday of the following month and in the format required by the
SANITATION DISTRICT. The format must include, as a minimum: 1) current
billing period invoicing, 2) current billing period "total percent invoiced to date",
3)future activities, 4) previous billing period "total invoiced to date', 5) potential
items that are not included in the Scope of Work, 6) concerns and possible
delays, 7) percentage of completion to date, and B) budget status and amount
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remaining. Such requests shall be accompanied by such supporting data as may
be required by the SANITATION DISTRICT.
Upon approval of such payment request by the SANITATION DISTRICT,
payment shall be made to CONSULTANT as soon as practicable of one hundred
percent(100%)of the invoiced amount.
If the SANITATION DISTRICT determines that the work under this AGREEMENT
or any specified project element hereunder, is incomplete and that the amount of
payment is in excess of:
I. The amount considered by the SANITATION DISTRICT's Director of
Engineering to be adequate for the protection of the SANITATION
DISTRICT; or
ii. The percentage of the work accomplished for each project element,
The SANITATION DISTRICT may, at the discretion of the Director of
Engineering, retain an amount equal to that which insures that the total amount
paid to that date does not exceed the percentage of the completed work for the
Project in its entirety.
C. CONSULTANT may submit periodic payment requests for each 30-day period of
this Agreement for the profit as set forth in Section 2 -COMPENSATION above.
Said profit payment request shall be proportionate to the work actually
accomplished to date on a per-project-element basis. In the event the
SANITATION DISTRICT's Director of Engineering determines that no satisfactory
progress has been made since the prior payment, or in the event of a delay in the
work progress for any reason, the SANITATION DISTRICT shall have the right to
withhold any scheduled proportionate profit payment.
D. Upon satisfactory completion by CONSULTANT of the work called for under the
terms of this AGREEMENT, and upon acceptance of such work by the
SANITATION DISTRICT, CONSULTANT will be paid the unpaid balance of any
money due for such work based on the monthly statements, including any
retained percentages relating to this portion of the work.
E. Upon satisfactory completion of the work performed hereunder and prior to final
payment under this AGREEMENT for such work, or prior settlement upon
termination of this AGREEMENT, and as a condition precedent thereto,
CONSULTANT shall execute and deliver to the SANITATION DISTRICT a
release of all claims against the SANITATION DISTRICT arising under or by
virtue of this AGREEMENT other than such claims, if any, as may be specifically
exempted by CONSULTANT from the operation of the release in stated amounts
to be set forth therein.
F. Pursuant to the California False Claims Act(Government Code sections 12650-
12655), any CONSULTANT that knowingly submits a false claim to the
SANITATION DISTRICT for compensation under the terms of this AGREEMENT
may be held liable for treble damages and up to a $10,000 civil penalty for each
false claim submitted. This section shall also be binding on all Subcensultants.
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A CONSULTANT or Subconsultant shall be deemed to have submitted a false
claim when the CONSULTANT or Subconsultant: (a) knowingly presents or
causes to be presented to an officer or employee of the SANITATION DISTRICT
a false claim or request for payment or approval; (b) knowingly makes, uses, or
causes to be made or used a false record or statement to get a false claim paid
or approved by the SANITATION DISTRICT; (c)conspires to defraud the
SANITATION DISTRICT by getting a false claim allowed or paid by the
SANITATION DISTRICT; (d) knowingly makes, uses, or causes to be made or
used a false record or statement to conceal, avoid, or decrease an obligation to
the SANITATION DISTRICT; or(a) is a beneficiary of an inadvertent submission
of a false claim to the SANITATION DISTRICT, and fails to disclose the false
claim to the SANITATION DISTRICT within a reasonable time after discovery of
the false claim.
S. PREVAILING WAGES
To the extent CONSULTANT intends to utilize employees who will perform work during
the contract, as more specifically defined under Labor Code Section 1720,
CONSULTANT shall be subject to prevailing wage requirements with respect to such
employees.
6. CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS (DIR) REGISTRATION
AND RECORD OF WAGES
A. To the extent CONSULTANT's employees and/or Subconsultants who will
perform Work during the design and preconstruction phases of a construction
contract for which Prevailing Wage Determinations have been issued by the DIR
and as more specifically defined under Labor Code Section 1720 at seq,
CONSULTANT and Subconsultants shall comply with the registration
requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section
1771.4, the Work is subject to compliance monitoring and enforcement by the
DIR.
The CONSULTANT and Subconsultants shall maintain accurate payroll records
and shall comply with all the provisions of Labor Code Section 1776, and shall
submit payroll records to the Labor Commissioner pursuant to Labor Code
Section 1771.4(a)(3). Penalties for non-compliance with the requirements of
Section 1776 may be deducted from progress payments per Section 1776.
B. Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants
shall furnish a copy of all certified payroll records to SANITATION DISTRICT
and/or general public upon request, provided the public request is made through
SANITATION DISTRICT, the Division of Apprenticeship Standards or the
Division of Labor Enforcement of the Department of Industrial Relations.
C. The CONSULTANT and Subconsultants shall comply with the job site notices
posting requirements established by the Labor Commissioner per Title 8,
California Code of Regulations Section 16461(e).
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7. DOCUMENT OWNERSHIP—CONSULTANT PERFORMANCE
A. Ownership of Documents for the Professional Services performed.
All documents in all forms (electronic, paper, etc.), including, but not limited to,
studies, sketches, drawings, computer printouts, disk files, and electronic copies
prepared in connection with or related to the Scope of Work or Professional
Services, shall be the property of the SANITATION DISTRICT. The SANITATION
DISTRICT's ownership of these documents includes use of, reproduction or
reuse of and all incidental rights, whether or not the work for which they were
prepared has been performed. The SANITATION DISTRICT ownership
entitlement arises upon payment or any partial payment for work performed and
includes ownership of any and all work product completed prior to that payment.
This Section shall apply whether the CONSULTANT's Professional Services are
terminated: a) by the completion of the AGREEMENT, or b) in accordance with
other provisions of this AGREEMENT. Notwithstanding any other provision of this
paragraph or AGREEMENT, the CONSULTANT shall have the right to make
copies of all such plans, studies, sketches, drawings, computer printouts and disk
files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent
changes to or uses of the study or deliverable where the subsequent changes or
uses are not authorized or approved by CONSULTANT, provided that the service
rendered by CONSULTANT was not a proximate cause of the damage.
8. INSURANCE
A. General
I. Insurance shall be issued and underwritten by insurance companies
acceptable to the SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial
Rating of at least Class Vill, or better, in accordance with the most current
A.M. Best's Guide Rating. However, the SANITATION DISTRICT will
accept State Compensation Insurance Fund, for the required policy of
Worker's Compensation Insurance subject to the SANITATION
DISTRICT's option to require a change in insurer in the event the State
Fund financial rating is decreased below"B". Further, the SANITATION
DISTRICT will require CONSULTANT to substitute any insurer whose
rating drops below the levels herein specified. Said substitution shall
occur within twenty (20)days of written notice to CONSULTANT, by the
SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work under
this Agreement.
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B. General Liability
The CONSULTANT shall maintain during the life of this Agreement, including the
period of warranty, Commercial General Liability Insurance written on an
occurrence basis providing the following minimum limits of liability coverage:
One Million Dollars ($1,000,000) per occurrence with One Million Dollars
($1,000,000)aggregate. Said insurance shall include coverage for the following
hazards: Premises-Operations, blanket contractual liability (for this Agreement),
products liability/completed operations (including any product manufactured or
assembled), broad form property damage, blanket contractual liability,
independent contractors liability, personal and advertising injury, mobile
equipment, owners and contractors protective liability, and cross liability and
severability of interest clauses. A statement on an insurance certificate will not be
accepted in lieu of the actual additional insured endorsement(s). If requested by
SANITATION DISTRICT and applicable, XCU coverage (Explosion, Collapse
and Underground)and Riggers/On Hook Liability must be included in the
General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability
The minimum limits of general liability and Automotive Liability Insurance
required, as set forth herein, shall be provided for through either a single policy of
primary insurance or a combination of policies of primary and umbrella excess
coverage. Umbrella excess liability coverage shall be issued with limits of liability
which, when combined with the primary insurance, will equal the minimum limits
for general liability and automotive liability.
D. AutomotiveNehicle liability Insurance
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles,
trucks, and other vehicles providing the following minimum limits of liability
coverage: Combined single limit of One Million Dollars ($1,000,000) or
alternatively, One Million Dollars ($1,000,000) per person for bodily injury and
One Million Dollars ($1,000,000) per accident for property damage. A statement
on an insurance certificate will not be accepted in lieu of the actual additional
insured endorsement.
E. Worker's Compensation Insurance
The CONSULTANT shall provide such Workers' Compensation Insurance as
required by the Labor Code of the State of California in the amount of the
statutory limit, including Employer's Liability Insurance with a minimum limit of
One Million Dollars ($1,000,000) per occurrence. Such Worker's Compensation
Insurance shall be endorsed to provide for a waiver of subrogation in favor of the
SANITATION DISTRICT. A statement on an insurance certificate will not be
accepted in lieu of the actual endorsements unless the insurance carrier is State
of California Insurance Fund and the identifier"SCIF" and endorsement numbers
2570 and 2065 are referenced on the certificate of insurance. If an exposure to
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Jones Act liability may exist, the insurance required herein shall include coverage
for Jones Act claims.
F. Errors and Omissions/Professional Liability
CONSULTANT shall maintain in full force and effect, throughout the term of this
Agreement, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Five Million Dollars
($5,000,000)with limits in accordance with the provisions of this Paragraph. If
the policy of insurance is written on a "claims made" basis, said policy shall be
continued in full force and effect at all times during the term of this Agreement,
and for a period of five (5) years from the date of the completion of the services
hereunder.
In the event of termination of said policy during this period, CONSULTANT shall
obtain continuing insurance coverage for the prior acts or omissions of
CONSULTANT during the course of performing services under the term of this
Agreement. Said coverage shall be evidenced by either a new policy evidencing
no gap in coverage or by separate extended "tail" coverage with the present or
new carrier.
In the event the present policy of insurance is written on an "occurrence" basis,
said policy shall be continued in full force and effect during the term of this
Agreement or until completion of the services provided for in this Agreement,
whichever is later. In the event of termination of said policy during this period,
new coverage shall be obtained for the required period to insure for the prior acts
of CONSULTANT during the course of performing services under the term of this
Agreement.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of
insurance in a form acceptable to the SANITATION DISTRICT indicating the
deductible or self-retention amounts and the expiration date of said policy, and
shall provide renewal certificates not less than ten (10)days prior to the
expiration of each policy term.
G. Proof of Coverage
The CONSULTANT shall furnish the SANITATION DISTRICT with original
certificates and amendatory endorsements effecting coverage. Said policies and
endorsements shall conform to the requirements herein stated. All certificates
and endorsements are to be received and approved by the SANITATION
DISTRICT before work commences. The SANITATION DISTRICT reserves the
right to require complete, certified copies of all required insurance policies,
including endorsements, effecting the coverage required, at any time. The
following are approved forms that must be submitted as proof of coverage:
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• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent.
• Additional Insurance (ISO Form) CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT
may reject alternatives that provide different or
less coverage to the SANITATION DISTRICT.
• Additional Insured Submit endorsement provided by carrier for the
(Auto Liability) SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent.
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2065 or equivalent.
H. Cancellation Notice
Each insurance policy required herein shall be endorsed to state that coverage
shall not be cancelled by either party, except after thirty (30)days' prior written
notice. The Cancellation Section of ACORD Form 25 (5/2010) shall state the
required thirty (30) days' written notification. The policy shall not terminate, nor
shall it be cancelled, nor the coverage reduced until thirty(30) days after written
notice is given to the SANITATION DISTRICT except for nonpayment of
premium, which shall require not less than ten (10) days written notice to the
SANITATION DISTRICT. Should there be changes in coverage or an increase in
deductible or SIR amounts, the CONSULTANT and its insurance broker/agent
shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR
amounts. The certified letter must be sent to the attention of Risk Management,
Div. 260, and shall be received by the SANITATION DISTRICT not less than
thirty (30)days prior to the effective date of the change(s) if the change would
reduce coverage or increase deductibles or SIR amounts or otherwise reduce or
limit the scope of insurance coverage provided to the SANITATION DISTRICT.
I. Primary Insurance
All liability policies shall contain a Primary and Non Contributory Clause. Any
other insurance maintained by the SANITATION DISTRICT shall be excess and
not contributing with the insurance provided by CONSULTANT.
J. Separation of Insured
All liability policies shall contain a "Separation of Insureds" clause.
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K. Non-Limiting (if applicable)
Nothing in this document shall be construed as limiting in any way, nor shall it
limit the indemnification provision contained in this Agreement, or the extent to
which CONSULTANT may be held responsible for payment of damages to
persons or property.
L. Deductibles and Self-Insured Retentions
Any deductible and/or self-insured retention must be declared to the
SANITATION DISTRICT on the Certificate of Insurance. All deductibles and/or
self-insured retentions require approval by the SANITATION DISTRICT. At the
option of the SANITATION DISTRICT, either: the insurer shall reduce or
eliminate such deductible or self-insured retention as respects the SANITATION
DISTRICT; or the CONSULTANT shall provide a financial guarantee satisfactory
to the SANITATION DISTRICT guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
M. Defense Costs
Liability policies shall have a provision that defense costs for all insureds and
additional insureds are paid in addition to and do not deplete any policy limits.
N. Subconsultants
The CONSULTANT shall be responsible to establish insurance requirements for
any Subconsultant hired by the CONSULTANT. The insurance shall be in
amounts and types reasonably sufficient to deal with the risk of loss involving the
Suboonsultant's operations and work.
O. Limits Are Minimums
If the CONSULTANT maintains higher limits than any minimums shown above,
then SANITATION DISTRICT requires and shall be entitled to coverage for the
higher limits maintained by CONSULTANT.
9. SCOPE CHANGES
In the event of a change in the Scope of Work or a change in the proposed Project, as
requested by the SANITATION DISTRICT, the Parties hereto shall execute an
Amendment to this AGREEMENT setting forth with particularity all terms of the new
AGREEMENT, including, but not limited to any additional CONSULTANT's fees.
10. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
AGREEMENT, the names and full description of all Subconsultants and
CONSULTANT's project team members anticipated to be used on this Project under this
AGREEMENT by CONSULTANT. CONSULTANT shall include a description of the work
and services to be done by each Subconsultant and each of CONSULTANT's Project
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team member. CONSULTANT shall include the respective compensation amounts for
CONSULTANT and each Subconsultant, broken down as indicated in Section 2-
COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project
team members without prior written approval by the SANITATION DISTRICT.
11. ENGINEERING REGISTRATION
The CONSULTANTS personnel and Subconsultants are comprised of registered
engineers and a staff of specialists and draftsmen in each department. The firm itself is
not a registered engineer but represents and agrees that wherever, in the performance
of this AGREEMENT, the services of a registered engineer is required, such services
hereunder will be performed under the direct supervision of registered engineers who
are registered in California.
12. AUDIT PROVISIONS.
A. SANITATION DISTRICT retains the reasonable right to access, review, examine,
and audit, any and all books, records, documents and any other evidence of
procedures and practices that the SANITATION DISTRICT determines are
necessary to discover and verify that the CONSULTANT is in compliance with all
requirements under this AGREEMENT. The CONSULTANT shall include the
SANITATION DISTRICT's right as described above, in any and all of their
subcontracts, and shall ensure that these rights are binding upon all
Suboonsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books,
records, documents and any other evidence of procedures and practices that the
SANITATION DISTRICT determines are necessary to discover and verify all
direct and indirect costs, of whatever nature, which are claimed to have been
incurred, or anticipated to be incurred or to ensure CONSULTANT's compliance
with all requirements under this AGREEMENT during the term of this
AGREEMENT and for a period of three (3)years after its termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION
DISTRICT's policy. The CONSULTANT shall make available to the
SANITATION DISTRICT for review and audit, all project related accounting
records and documents, and any other financial data within 15 days after receipt
of notice from the SANITATION DISTRICT. Upon SANITATION DISTRICT's
request, the CONSULTANT shall submit exact duplicates of originals of all
requested records to the SANITATION DISTRICT. If an audit is performed,
CONSULTANT shall ensure that a qualified employee of the CONSULTANT will
be available to assist SANITATION DISTRICT's auditor in obtaining all Project
related accounting records and documents, and any other financial data.
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13. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor
and nothing herein shall be deemed to transform CONSULTANT, its staff, independent
contractors, or Subconsultants into employees of the SANITATION DISTRICT.
CONSULTANT'S staff performing services under the AGREEMENT shall at all times be
employees and/or independent contractors of CONSULTANT. CONSULTANT shall
monitor and control its staff and pay wages, salaries, and other amounts due directly to
its staff in connection with the AGREEMENT. CONSULTANT shall be responsible for
hiring, review, and termination of its staff and shall be accountable for all reports and
obligations respecting them, such as social security, income tax withholding,
unemployment compensation, workers' compensation and similar matters.
14. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of
this AGREEMENT, or changes thereto, shall be effected by delivery of said notices in
person or by depositing said notices in the U.S. mail, registered or certified mail, return
receipt requested, postage prepaid.
Notice shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Dave MacDonald, Project Manager
Notice shall be mailed to CONSULTANT at:
aCONSULATANT COMPANY»
«Street Address»
«City, State Zip))
Attention: «CONSULTANT'S Representative»
All communication regarding the Scope of Work, will be addressed to the Project
Manager. Direction from other SANITATION DISTRICT staff must be approved in
writing by the SANITATION DISTRICT's Project Manager prior to action from the
CONSULTANT.
15. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time, without
cause, upon giving thirty (30) days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in
accordance with the provisions of this AGREEMENT, when the same are due.
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Notice of termination shall be mailed to the SANITATION DISTRICT at the address
listed in Paragraph 14- NOTICES.
16. DOCUMENTS AND STUDY MATERIALS
The documents and study materials for this Project shall become the property of the
SANITATION DISTRICT upon the termination or completion of the work.
CONSULTANT agrees to furnish to the SANITATION DISTRICT copies of all
memoranda, correspondence, electronic materials, computation and study materials in
its files pertaining to the work described in this AGREEMENT, which is requested in
writing by the SANITATION DISTRICT.
17. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays employees
not less than the minimum wage as defined by law, and that it does not discriminate in
its employment with regard to race, color, religion, sex or national origin; that it is in
compliance with all federal, state and local directives and executive orders regarding
non-discrimination in employment; and that it agrees to demonstrate positively and
aggressively the principle of equal opportunity in employment.
18. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each Party is a person duly authorized to
execute this AGREEMENT for that Party.
19. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or
interpretation of this AGREEMENT, the dispute shall be resolved by binding arbitration
under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), or similar
organization or entity conducting alternate dispute resolution services.
20. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
21. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry
and professional standards. If, within the 12-month period following completion of its
services, the SANITATION DISTRICT informs CONSULTANT that any part of the
services fails to meet those standards, CONSULTANT shall, within the time prescribed
by the SANITATION DISTRICT, take all such actions as are necessary to correct or
complete the noted deficiency(ies).
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22. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the
SANITATION DISTRICT, which approval shall not be unreasonably withheld), protect
and hold harmless the SANITATION DISTRICT and all of SANITATION DISTRICT's
officers, directors, employees, CONSULTANT's, and agents (collectively the
"Indemnified Parties"), from and against any and all claims, damages, liabilities, causes
of action, suits, arbitration awards, losses,judgments, fines, penalties, costs and
expenses (including, without limitation, attorneys' fees, disbursements and court costs,
and all other professional, expert or CONSULTANT's fees and costs and the
SANITATION DISTRICT's general and administrative expenses; individually, a "Claim";
collectively, "Claims")which may arise from or are in any manner related, directly or
indirectly, to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this Agreement to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals,
officers, agents, employees, CONSULTANT's suppliers, CONSULTANT,
Subconsultants, subcontractors, and/or anyone employed directly or indirectly by any of
them, regardless of any contributing negligence or strict liability of an Indemnified Party.
Notwithstanding the foregoing, nothing herein shall be construed to require
CONSULTANT to indemnify the Indemnified Parties from any Claim arising solely from:
(A)the active negligence or willful misconduct of the Indemnified Parties; or
(B)a natural disaster or other act of God, such as an earthquake; or
(C)the independent action of a third party who is neither one of the Indemnified Parties
nor the CONSULTANT, nor its principal, officer, agent, employee, nor
CONSULTANT's supplier, CONSULTANT, Subconsultant, subcontractor, nor
anyone employed directly or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from
more than one cause if any such cause taken alone would otherwise result in the
obligation to indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by
CONSULTANT of any of the provisions of this Agreement. Under no circumstances
shall the insurance requirements and limits set forth in this Agreement be construed to
limit CONSULTANT's indemnification obligation or other liability hereunder. The terms
of this Agreement are contractual and the result of negotiation between the parties
hereto. Accordingly, any rule of construction of contracts (including, without limitation,
California Civil Code Section 1654)that ambiguities are to be construed against the
drafting party, shall not be employed in the interpretation of this Agreement.
23. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code section 2782.8. Such defense
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obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In
the event a final judgment, arbitration, award, order, settlement, or other final resolution
expressly determines that the claim did not arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the CONSULTANT, to any extent,
then the DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such claims.
CONSULTANT'S indemnification obligation hereunder shall survive the expiration or
earlier termination of this AGREEMENT until such time as action against the Indemnified
Parties for such matter indemnified hereunder is fully and finally barred by the applicable
statute of limitations.
24. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, as applicable, all of which may be
amended from time to time.
25. CLOSEOUT
When the SANITATION DISTRICT determines that all Work authorized under the
AGREEMENT is fully complete and that the SANITATION DISTRICT requires no further
work from CONSULTANT, or the AGREEMENT is otherwise terminated or expires in
accordance with the terms of the AGREEMENT, the SANITATION DISTRICT shall give
the Consultant written notice that the AGREEMENT will be closed out. CONSULTANT
shall submit all outstanding billings, work submittals, deliverables, reports or similarly
related documents as required under the AGREEMENT within thirty(30) days of receipt
of notice of AGREEMENT closeout.
Upon receipt of CONSULTANT'S submittals, the SANITATION DISTRICT shall
commence a closeout audit of the AGREEMENT and will either:
I. Give the CONSULTANT a final AGREEMENT Acceptance: or
ii. Advise the CONSULTANT in writing of any outstanding item or items which must
be furnished, completed, or corrected at the CONSULTANT'S cost.
CONSULTANT shall be required to provide adequate resources to fully support any
administrative closeout efforts identified in the AGREEMENT Such support must be
provided within the timeframe requested by the SANITATION DISTRICT.
Notwithstanding the final AGREEMENT acceptance, the CONSULTANT will not be
relieved of its obligations hereunder, nor will the CONSULTANT be relieved of its
obligations to complete any portions of the work, the non-completion of which were not
disclosed to the SANITATION DISTRICT (regardless of whether such nondisclosures
were fraudulent, negligent, or otherwise), and the CONSULTANT shall remain obligated
PSA PROJECT NO.PS15-10
Revised 122215 2017 FACILITIES MASTER PLAN
Page 17 of 19
under all those provisions of the AGREEMENT which expressly or by their nature extend
beyond and survive final AGREEMENT Acceptance.
Any failure by the SANITATION DISTRICT to reject the work or to reject the
CONSULTANT's request for final Agreement Acceptance as set forth above shall not be
deemed to be acceptance of the work by the SANITATION DISTRICT for any purpose nor
imply acceptance of, or agreement with, the CONSULTANT'S request for final Agreement
Acceptance.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between the
Parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
11 5
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Revised 122215 2017 FACILITIES MASTER PLAN
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IN WITNESS WHEREOF, this Agreement has been executed in the name of the SANITATION
DISTRICT, by its officers thereunto duly authorized, and CONSULTANT as of the day and year
first above written.
CONSULTANT: COMPANY NAME
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Chair, Board of Directors Date
By
Kelly A. Lore
Clerk of the Board Date
By Marc Dubois Date
Contracts, Purchasing and Materials
Management Division Manager
Attachments: Attachment"A"—Scope of Work
Attachment "B"—Labor Hour Matrix
Attachment"C"—Conflict of Interest Disclaimer
Attachment "D"—Allowable Direct Costs
Attachment"E"—Fee Proposal
Attachment"F"— Professional Services Agreement (PSA)
Attachment"G"—Acknowledgement of PSA
Attachment"H"— Not Used
Attachment"I"—Cost Matrix and Summary
Attachment"J"—Acknowledgement of Addenda Receipt
Attachment"K"—Hourly Rate Schedule for Minor Subconsultants
Attachment"L"—OCSD Safety Standards
XXX:xx
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OPERATIONS COMMITTEE MeaHngDae TOBd.OfDir.
07/O6/16 07/27/16
AGENDA REPORT Item Item Number
9
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: SAFETY IMPROVEMENT AT PLANT NOS. 1 AND 2,
PROJECT NO. J-126
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Professional Design Services Agreement with Arcadia U.S., Inc. to
provide program and engineering design services for Safety Improvement at Plant
Nos. 1 and 2, Project No. J-126, for an amount not to exceed $1,540,000; and
B. Approve a contingency of$154,000 (10%).
BACKGROUND
The Orange County Sanitation District (Sanitation District) owns and operates the
facilities that were designed and constructed from the 1950s to present. In July 2014, the
Facility Wide Safety Assessment, Project No. SP-145-1, reviewed safety issues at the
Sanitation District Plant Nos. 1 and 2, and pump stations. The study identified
approximately 2,000 facility issues impacting worker safety and compliance with
Cal/OSHA regulations including electrical, fall protection, machine guarding, hazardous
area classifications, skylights, and walkway hazards. Each item was assigned a high,
medium, or low priority rating. Pending resolution of the safety items, interim measures
were taken by the Sanitation District to minimize life-safety risks.
There was approximately an even distribution between those that would be addressed
using Sanitation District resources, and those that would be addressed through the
Capital Improvements Program (CIP), depending on their nature and complexity. Items
on the CIP list which could not be timely assigned to existing projects are now assigned
to Safety Improvement at Plant Nos. 1 and 2, Project No. J-126.
RELEVANT STANDARDS
• Provide a safe workplace
• Protection of Orange County Sanitation District Assets
PROBLEM
Approximately 9,100 issues assigned to the Safety Improvement Program represent
potential threats to staff, contractors, and visitors, and non-compliance with building and
safety codes.
Page 1 of 4
PROPOSED SOLUTION
To resolve the assigned issues as quickly as possible, Safety Improvement at Plant
Nos. 1 and 2, Project No. J-126, will be executed through a number of construction
packages which can be completed in a much shorter time than using a single construction
contract. Development of multiple construction packages also allows higher priority safety
items to be completed more quickly than lower priority items.
Preparing multiple construction contracts requires additional services from the design
consultant, including program services to develop a plan on how to best allocate the work
among various construction packages, and additional time to prepare the various
procurement packages. Since the number and type of construction packages has not yet
been determined, it is impossible to precisely determine the level of effort required for
detailed design. Therefore, the Consultant's Scope of Work includes both program
services, which can be estimated, and detailed design,for which a set allowance of 5,000
hours has been set. Staff will authorize allocations from this allowance as construction
packages are identified and the specific scopes and budgets are negotiated.
TIMING CONCERNS
Delaying resolution of the safety items poses potential threats to staff, Contractor, and
visitor safety.
RAMIFICATIONS OF NOT TAKING ACTION
• Staff, Contractors, and visitors will continue to be exposed to potential safety
hazards.
• Certain facilities will continue to not comply with code requirements.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
Reauest for Proposal:
A Request for Proposal which described the Consultant's Scope of Work required for the
project was advertised on April 18, 2016.
Proposals were received on May 18, 2016 from two firms: Hazen and Sawyer, and
Arcadis U.S., Inc. A Staff Evaluation Committee consisting of five representatives from
Engineering, Risk Management, and Operations reviewed and ranked each of the
proposals in accordance with the evaluation process set forth in the Sanitation District
Board of Directors' Ordinance No. OCSD47. Three representatives from Engineering
and Risk Management participated in the evaluation process as non-voting members.
Page 2 of 4
The proposals were evaluated according to: (1) project understanding and approach;
(2) related project experience; and (3) project team and staff qualifications.
The Evaluation Committee reviewed the proposals and interviewed both Hazen and
Sawyer and Arcadis U.S., Inc. to meet the key team members and further evaluate the
firms' qualifications. Pursuant to the results of the interview, the Evaluation Committee
selected Arcadis U.S., Inc. as the top-ranked firm as shown in Table 1.
TABLE 1
PROPOSAL EVALUATION
Consultant Evaluator Hazen and Sawyer Arcadia, U.S. Inc.
Reviewer A 5.6 7.6
Reviewer B 5.8 8.2
Reviewer C 6.0 8.4
Reviewer D 4.4 8.2
Reviewer E 7.8 9.0
Overall Ranking 2 1
Proposal Fee N/A $1,625,874
Negotiated Fee Proposal I N/A $1,540,000
*Based on scored after interviews.
Review of Fee Proposal and Negotiations:
Proposals were accompanied by sealed fee proposals. In accordance with the Sanitation
District Board of Directors' Ordinance No. OCSD-47, the fee proposal of only the highest
ranked firm was opened after approval by the Director of Engineering of the Evaluation
Committee's recommendation. Staff conducted negotiations with Arcadis U.S., Inc. to
clarify the requirements of the Scope of Work, the assumptions to be used for the
estimated level of effort, and the level of design detail required to meet the goals and
objectives for the project.
In evaluating whether the fee proposal was fair and reasonable, the following factors were
considered:
• The estimated level of effort was evaluated in detail for each phase and task and found
to be justified by the needs of the project, the agreed upon assumptions, and the
Sanitation District's expectation for the quality of service.
• The Consultant's fringe and overhead costs, which factor into the billing rate are
reasonable and lower than other similar agreements. The contract profit is 7.01%
which is based on the Sanitation District's standard design agreement.
Based on the above, staff has determined that the final negotiated fee is fair and
reasonable for the level of effort required for this project and recommends award of the
Professional Design Service Agreement to Arcadis U.S., Inc.
Page 3 of 4
CEQA
A CEQA Notice of Exemption for this project was filed on August 14, 2015.
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted. (Line item: Budget Update FY2016-17,
Section 8, Page 68).
ATTACHMENT
The following attachment(s) maybe viewed on-line at the OCSD website (Mm w.ocsd.com) with the
complete agenda package:
DRAFT Professional Design Services Agreement
AC:dm:gc
Page 4 of 4
ATTACHMENT "F"
SAMPLE PROFESSIONAL DESIGN SERVICES
AGREEMENT (PDSA)
PROFESSIONAL DESIGN SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into to be effective the «date» day of
«Month», «year» by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter
referred to as "SANITATION DISTRICT', and ((CONSULTANT COMPANY», for purposes of
this Agreement hereinafter referred to as "CONSULTANT'.
WITNESSETH:
WHEREAS, the SANITATION DISTRICT desires to engage a CONSULTANT for the
SAFETY IMPROVEMENTS PROGRAM, Project No. J-126; and to provide Design, Construction
Support, and Closeout services for the Safety Improvements Program and,
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary professional services; and,
WHEREAS, the SANITATION DISTRICT has adopted procedures for the selection of
professional services and has proceeded in accordance with said procedures to select a
CONSULTANT to perform this work; and,
WHEREAS, at its regular meeting on «Board Meeting Dates the Board of Directors, by
Minute Order, accepted the recommendation of the Operations Committee or Director of
Engineering and General Manager pursuant to SANITATION DISTRICT Board of Directors'
Ordinance No. OCSD-47 to approve this Agreement between the SANITATION DISTRICT and
CONSULTANT.
NOW, THEREFORE, in consideration of the promises and mutual benefits, which will
result to the parties in carrying out the terms of this Agreement, it is mutually agreed as follows:
1. SCOPE OF WORK
CONSULTANT agrees to furnish necessary professional and technical services to
accomplish those project elements outlined in the Scope of Work attached hereto as
Attachment "A", and by this reference made a part of this Agreement.
A. The CONSULTANT shall be responsible for the professional quality, technical
accuracy, completeness, and coordination of all design, drawings, specifications,
and other services furnished by the CONSULTANT under this Agreement,
including the work performed by its Subconsultants. Where approval by the
SANITATION DISTRICT is indicated, it is understood to be conceptual approval
only and does not relieve the CONSULTANT of responsibility for complying with
all laws, codes, industry standards and liability for damages caused by errors,
omissions, noncompliance with industry standards, and/or negligence on the part
of the CONSULTANT or its Subconsultants.
B. CONSULTANT is responsible for the quality of work prepared under this
Agreement and shall ensure that all work is performed to the standards of best
engineering practice for clarity, uniformity, and completeness. CONSULTANT
shall respond to all comments, suggestions, and recommendations on the
PDSA PROJECT NO.J-126
Revised 092115 SAFETY IMPROVEMENTS PROGRAM
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SANITATION DISTRICT's review comment sheets (i.e. DS1, DS2 and DS3). All
comments shall be incorporated into the design prior to the next submittal
deadline or addressed, in writing, as to why the comment has not been
incorporated. CONSULTANT shall ensure that each submittal is 100% accurate
for the level of work submitted (i.e. correct references, terms, capitalization or
equal status, spelling, punctuation, etc.)
C. In the event that work is not performed to the satisfaction of the SANITATION
DISTRICT and does not conform to the requirements of this Agreement or any
applicable industry standards, the CONSULTANT shall, without additional
compensation, promptly correct or revise any errors or deficiencies in its designs,
drawings, specifications, or other services within the timeframe specified by the
Project Engineer/Project Manager. The SANITATION DISTRICT may charge to
CONSULTANT all costs, expenses and damages associated with any such
corrections or revisions.
D. All CAD drawings, figures, and other work shall be produced by CONSULTANTS
and Subconsultants using the SANITATION DISTRICT CAD Manual.
Conversion of CAD work from any other non-standard CAD format to the
SANITATION DISTRICT format shall not be acceptable in lieu of this
requirement.
Electronic files shall conform to the SANITATION DISTRICT specifications. Any
changes to these specifications by the CONSULTANT are subject to review and
approval of the SANITATION DISTRICT.
Electronic files shall be subject to an acceptance period of sNumber of Days*
calendar days during which the SANITATION DISTRICT shall perform
appropriate reviews and including CAD Manual compliance. CONSULTANT shall
correct any discrepancies or errors detected and reported within the acceptance
period at no additional cost to the SANITATION DISTRICT.
E. The CONSULTANT shall ensure that all plans and specifications prepared, or
recommended under this Agreement allow for competitive bidding. The
CONSULTANT shall design such plans or specifications so that procurement of
services, labor or materials are not available from only one source, and shall not
design plans and specifications around a single or specific product, piece of
major equipment or machinery, a specific patented design or a proprietary
process, unless required by principles of sound engineering practice and
supported by a written justification that has been approved in writing by the
SANITATION DISTRICT. The CONSULTANT shall submit this written
justification to the SANITATION DISTRICT prior to beginning work on such plans
and specifications. Whenever the CONSULTANT recommends a specific
product or equipment for competitive procurement, such recommendation shall
include at least two brand names of products that are capable of meeting the
functional requirements applicable to the project.
F. All professional services performed by the CONSULTANT, including but not
limited to all drafts, data, correspondence, proposals, reports, and estimates
compiled or composed by the CONSULTANT, pursuant to this Agreement, are
PDSA PROJECT NO.J-126
Revised 092115 SAFETY IMPROVEMENTS PROGRAM
Page 2 of 19
for the sole use of the SANITATION DISTRICT, its agents and employees.
Neither the documents nor their contents shall be released to any third party
without the prior written consent of the SANITATION DISTRICT. This provision
does not apply to information that (a)was publicly known, or otherwise known to
the CONSULTANT, at the time that it was disclosed to the CONSULTANT by the
SANITATION DISTRICT, (b)subsequently becomes publicly known to the
CONSULTANT other than through disclosure by the SANITATION DISTRICT.
2. COMPENSATION
Total compensation shall be paid to CONSULTANT for services in accordance with the
following provisions:
A. Total Compensation
Total compensation shall be in an amount not to exceed eGrand Total Written
Amountn Dollars ($eGrand Total Amounts). Total compensation to
CONSULTANT including burdened labor (salaries plus benefits), overhead,
profit, direct costs, and Subconsultant(s)fees and costs shall not exceed the sum
set forth in Attachment"E" - Fee Proposal.
B. Labor
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall pay to CONSULTANT a sum equal to the
burdened salaries (salaries plus benefits)actually paid by CONSULTANT
charged on an hourly-rate basis to this project and paid to the personnel of
CONSULTANT. Upon request of the SANITATION DISTRICT, CONSULTANT
shall provide the SANITATION DISTRICT with certified payroll records of all
employees' work that is charged to this project.
C. Overhead
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall compensate CONSULTANT and Subconsultants
for overhead at the rate equal to the percentage of burdened labor as specified in
Attachment "E"- Fee Proposal.
D. Profit
Profit for CONSULTANT and Subconsultants shall be a percentage of consulting
services fees (Burdened Labor and Overhead). When the consulting or
subconsulting services amount is $250,000 or less, the maximum Profit shall be
10%. Between $250,000 and $2,500,000, the maximum Profit shall be limited by
a straight declining percentage between 10% and 5%. For consulting or
subconsulting services fees with a value greater than $2,500,000, the maximum
Profit shall be 5%. Addenda shall be governed by the same maximum Profit
percentage after adding consulting services fees.
PDSA PROJECT NO.J-126
Revised 092115 SAFETY IMPROVEMENTS PROGRAM
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As a portion of the total compensation to be paid to CONSULTANT and
Subconsultants, the SANITATION DISTRICT shall pay profit for all services
rendered by CONSULTANT and Subconsultants for this project according to
Attachment"E"- Fee Proposal.
E. Subconsultants
For any Subconsultant whose fees for services are greater than or equal to
$100,000 (excluding out-of-pocket costs), CONSULTANT shall pay to
Subconsultant total compensation in accordance with the Subconsultant amount
specified in Attachment"E"- Fee Proposal.
For any Subconsultant whose fees for services are less than $100,000,
CONSULTANT may pay to Subconsultant total compensation on an hourly-rate
basis per the attached hourly rate Schedule and as specified in the Scope of
Work. The SANITATION DISTRICT shall pay to CONSULTANT the actual costs
of Subconsultant fees and charges in an amount not to exceed the sum set forth
in Attachment"E"- Fee Proposal.
F. Direct Costs \
The SANITATION DISTRICT shall pay to CONSULTANT and Subconsultants
the actual costs of permits and associated fees, travel and licenses for an
amount not to exceed the sum set forth in Attachment"E"- Fee Proposal. The
SANITATION DISTRICT shall also pay to CONSULTANT actual costs for
equipment rentals, leases or purchases with prior approval of the SANITATION
DISTRICT. Upon request, CONSULTANT shall provide to the SANITATION
DISTRICT receipts and other documentary records to support CONSULTANT's
request for reimbursement of these amounts, see Attachment"D"-Allowable
Direct Costs. All incidental expenses shall be included in overhead pursuant to
Section 2 -COMPENSATION above.
G. Reimbursable Direct Costs
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable
travel and business expenses as described in this section and further described in
Attachment"D"-Allowable Direct Costs to this Agreement. The reimbursement of
the above mentioned expenses will be based on an "accountable plan" as
considered by Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
http://www.gsa.gov/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical
means of management of reimbursable costs inclusive but not limited to travel,
lodging and meals arrangements. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem" as deemed the most
practical.
PDSA PROJECT NO.J-126
Revised 092115 SAFETY IMPROVEMENTS PROGRAM
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CONSULTANT shall be responsible for returning to the SANITATION DISTRICT
any excess reimbursements after the reimbursement has been paid by the
SANITATION DISTRICT.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in
advance.
Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles,
Ventura, San Bernardino, Riverside, San Diego, Imperial and Kern Counties.
Automobile mileage is reimbursable if CONSULTANT is required to utilize
personal vehicle for local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed
at the discretion of the SANITATION DISTRICT based on reasonableness of
meeting schedules and the amount of time required for travel by the
CONSULTANT. Such determination will be made on a case-by-case basis and at
the discretion of the SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by IRS shall be utilized for travel
meals reimbursements. Per diem rates shall be applied to meals that are
appropriate for travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"-Allowable Direct Costs of this Agreement.
H. Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Proposal will exceed seventy-five percent (75%) of
the not-to-exceed amount of the Agreement, including approved additional
compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional
amount necessary to complete the services. Any cost incurred in excess of the
approved not-to-exceed amount, without the express written consent of the
SANITATION DISTRICT's authorized representative shall be at CONSULTANT's
own risk. This written notice shall be provided separately from, and in addition to
any notification requirements contained in the CONSULTANT's invoice and
monthly progress report. Failure to notify the SANITATION DISTRICT that the
services cannot be completed within the authorized not-to-exceed amount is a
material breach of this Agreement.
3. REALLOCATION OF TOTAL COMPENSATION
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to
approve a reallocation of the incremental amounts constituting the total compensation,
provided that the total compensation is not increased.
PDSA PROJECT NO.J-126
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4. PAYMENT
I. Monthly Invoice: CONSULTANT shall include in its monthly invoice, a detailed
breakdown of costs associated with the performance of any corrections or
revisions of the work for that invoicing period. CONSULTANT shall allocate costs
in the same manner as it would for payment requests as described in this Section
of the Agreement. CONSULTANT shall warrant and certify the accuracy of these
costs and understand that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
J. CONSULTANT may submit monthly or periodic statements requesting payment
for those items included in Section 2- COMPENSATION hereof in the format as
required by the SANITATION DISTRICT. Such requests shall be based upon the
amount and value of the work and services performed by CONSULTANT under
this Agreement and shall be prepared by CONSULTANT and accompanied by
such supporting data, including a detailed breakdown of all costs incurred and
project element work performed during the period covered by the statement, as
may be required by the SANITATION DISTRICT.
Upon approval of such payment request by the SANITATION DISTRICT,
payment shall be made to CONSULTANT as soon as practicable of one hundred
percent (100%)of the invoiced amount on a per-project-element basis.
If the SANITATION DISTRICT determines that the work under this Agreement or
any specified project element hereunder, is incomplete and that the amount of
payment is in excess of:
i. The amount considered by the SANITATION DISTRICT's Director of
Engineering to be adequate for the protection of the SANITATION DISTRICT;
or
ii. The percentage of the work accomplished for each project element.
He may, at his discretion, retain an amount equal to that which insures that the
total amount paid to that date does not exceed the percentage of the completed
work for each project element or the project in its entirety.
K. CONSULTANT may submit periodic payment requests for each 30-day period of
this Agreement for the profit as set forth in Section 2 -COMPENSATION above.
Said profit payment request shall be proportionate to the work actually
accomplished to date on a per-project-element basis. In the event the
SANITATION DISTRICT's Director of Engineering determines that no satisfactory
progress has been made since the prior payment, or in the event of a delay in the
work progress for any reason, the SANITATION DISTRICT shall have the right to
withhold any scheduled proportionate profit payment.
L. Upon satisfactory completion by CONSULTANT of the work called for under the
terms of this Agreement, and upon acceptance of such work by the SANITATION
DISTRICT, CONSULTANT will be paid the unpaid balance of any money due for
such work, including any retained percentages relating to this portion of the work.
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M. Upon satisfactory completion of the work performed hereunder and prior to final
payment under this Agreement for such work, or prior settlement upon
termination of this Agreement, and as a condition precedent thereto,
CONSULTANT shall execute and deliver to the SANITATION DISTRICT a
release of all claims against the SANITATION DISTRICT arising under or by
virtue of this Agreement other than such claims, if any, as may be specifically
exempted by CONSULTANT from the operation of the release in stated amounts
to be set forth therein.
N. Pursuant to the California False Claims Act(Government Code Sections 12650-
12655), any CONSULTANT that knowingly submits a false claim to the
SANITATION DISTRICT for compensation under the terms of this Agreement
may be held liable for treble damages and up to a ten thousand dollars ($10,000)
civil penalty for each false claim submitted. This Section shall also be binding on
all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false
claim when the CONSULTANT or Subconsultant: a) knowingly presents or causes
to be presented to an officer or employee of the SANITATION DISTRICT a false
claim or request for payment or approval; b) knowingly makes, uses, or causes to
be made or used a false record or statement to get a false claim paid or approved
by the SANITATION DISTRICT; c) conspires to defraud the SANITATION
DISTRICT by getting a false claim allowed or paid by the SANITATION DISTRICT;
d) knowingly makes, uses, or causes to be made or used a false record or
statement to conceal, avoid, or decrease an obligation to the SANITATION
DISTRICT; or e) is a beneficiary of an inadvertent submission of a false claim to
the SANITATION DISTRICT, and fails to disclose the false claim to the
SANITATION DISTRICT within a reasonable time after discovery of the false claim.
5. CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS (DIR) REGISTRATION
AND RECORD OF WAGES
A. To the extent CONSULTANT's employees and/or Subconsultants who will
perform Work during the design and preconstruction phases of a construction
contract for which Prevailing Wage Determinations have been issued by the DIR
and as more specifically defined under Labor Code Section 1720 at seq,
CONSULTANT and Subconsultants shall comply with the registration
requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section
1771.4, the Work is subject to compliance monitoring and enforcement by the
DIR.
B. The CONSULTANT and Subconsultants shall maintain accurate payroll records
and shall comply with all the provisions of Labor Code Section 1776, and shall
submit payroll records to the Labor Commissioner pursuant to Labor Code
Section 1771.4(a)(3). Penalties for non-compliance with the requirements of
Section 1776 may be deducted from progress payments per Section 1776.
C. Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants
shall furnish a copy of all certified payroll records to SANITATION DISTRICT
and/or general public upon request, provided the public request is made through
PDSA PROJECT NO.J-126
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Page 7 of 19
SANITATION DISTRICT, the Division of Apprenticeship Standards or the
Division of Labor Enforcement of the Department of Industrial Relations.
D. The CONSULTANT and Subconsultants shall comply with the job site notices
posting requirements established by the Labor Commissioner per Title 8,
California Code of Regulation Section 16461(e).
6. DOCUMENT OWNERSHIP—SUBSEQUENT CHANGES TO PLANS AND
SPECIFICATIONS
A. Ownership of Documents for the Professional Services performed.
All documents, including but not limited to, original plans, studies, sketches,
drawings, computer printouts and disk files, and specifications prepared in
connection with or related to the Scope of Work or Professional Services, shall
be the property of the SANITATION DISTRICT. The SANITATION DISTRICT's
ownership of these documents includes use of, reproduction or reuse of and all
incidental rights, whether or not the work for which they were prepared has been
performed. The SANITATION DISTRICT ownership entitlement arises upon
payment or any partial payment for work performed and includes ownership of
any and all work product completed prior to that payment. This Section shall
apply whether the CONSULTANT's Professional Services are terminated: a) by
the completion of the Agreement, or b) in accordance with other provisions of this
Agreement. Notwithstanding any other provision of this paragraph or Agreement,
the CONSULTANT shall have the right to make copies of all such plans, studies,
sketches, drawings, computer printouts and disk files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent
changes to or uses of the plans or specifications, where the subsequent changes
or uses are not authorized or approved by CONSULTANT, provided that the
service rendered by CONSULTANT was not a proximate cause of the damage.
7. INSURANCE I<n**l
A. General
i. Insurance shall be issued and underwritten by insurance companies
acceptable to the SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial
Rating of at least Class Vill, or better, in accordance with the most current
A.M. Best's Guide Rating. However, the SANITATION DISTRICT will accept
State Compensation Insurance Fund, for the required policy of Worker's
Compensation Insurance subject to the SANITATION DISTRICT's option to
require a change in insurer in the event the State Fund financial rating is
decreased below"B". Further, the SANITATION DISTRICT will require
CONSULTANT to substitute any insurer whose rating drops below the levels
herein specified. Said substitution shall occur within twenty (20)days of
written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
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iii. Coverage shall be in effect prior to the commencement of any work under this
Agreement.
B. General Liability
The CONSULTANT shall maintain during the life of this Agreement, including the
period of warranty, Commercial General Liability Insurance written on an
occurrence basis providing the following minimum limits of liability coverage: One
Million Dollars ($1,000,000) per occurrence with One Million Dollars ($1,000,000)
aggregate. Said insurance shall include coverage for the following hazards:
Premises-Operations, blanket contractual liability(for this Agreement), products
liability/completed operations (including any product manufactured or
assembled), broad form property damage, blanket contractual liability,
independent contractors liability, personal and advertising injury, mobile
equipment, owners and contractors protective liability, and cross liability and
severability of interest clauses. A statement on an insurance certificate will not be
accepted in lieu of the actual additional insured endorsement(s). If requested by
SANITATION DISTRICT and applicable, XCU coverage (Explosion, Collapse
and Underground) and Riggers/On Hook Liability must be included in the
General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability
The minimum limits of general liability and Automotive Liability Insurance
required, as set forth herein, shall be provided for through either a single policy of
primary insurance or a combination of policies of primary and umbrella excess
coverage. Umbrella excess liability coverage shall be issued with limits of liability
which, when combined with the primary insurance, will equal the minimum limits
for general liability and automotive liability.
D. AutomotiveNehicle liability Insurance
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles,
trucks, and other vehicles providing the following minimum limits of liability
coverage: Combined single limit of One Million Dollars ($1,000,000) or
alternatively, One Million Dollars ($1,000,000) per person for bodily injury and
One Million Dollars ($1,000,000) per accident for property damage. A statement
on an insurance certificate will not be accepted in lieu of the actual additional
insured endorsement.
E. Worker's Compensation Insurance
The CONSULTANT shall provide such Workers' Compensation Insurance as
required by the Labor Code of the State of California in the amount of the
statutory limit, including Employer's Liability Insurance with a minimum limit of
One Million Dollars ($1,000,000) per occurrence. Such Worker's Compensation
Insurance shall be endorsed to provide for a waiver of subrogation in favor of the
SANITATION DISTRICT. A statement on an insurance certificate will not be
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accepted in lieu of the actual endorsements unless the insurance carrier is State
of California Insurance Fund and the identifier"SCIF" and endorsement numbers
2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage
for Jones Act claims.
F. Errors and Omissions/Professional Liability
CONSULTANT shall maintain in full force and effect, throughout the term of this
Agreement, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Three Million Dollars
($3,000,000)with limits in accordance with the provisions of this Paragraph. If
the policy of insurance is written on a "claims made" basis, said policy shall be
continued in full force and effect at all times during the term of this Agreement,
and for a period of five (5) years from the date of the completion of the services
hereunder.
In the event of termination of said policy during this period, CONSULTANT shall
obtain continuing insurance coverage for the prior acts or omissions of
CONSULTANT during the course of performing services under the term of this
Agreement. Said coverage shall be evidenced by either a new policy evidencing
no gap in coverage or by separate extended "tail" coverage with the present or
new carrier.
In the event the present policy of insurance is written on an "occurrence" basis,
said policy shall be continued in full force and effect during the term of this
Agreement or until completion of the services provided for in this Agreement,
whichever is later. In the event of termination of said policy during this period,
new coverage shall be obtained for the required period to insure for the prior acts
of CONSULTANT during the course of performing services under the term of this
Agreement.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of
insurance in a form acceptable to the SANITATION DISTRICT indicating the
deductible or self-retention amounts and the expiration date of said policy, and
shall provide renewal certificates not less than ten (10)days prior to the
expiration of each policy term.
G. Proof of Coverage
The CONSULTANT shall furnish the SANITATION DISTRICT with original
certificates and amendatory endorsements effecting coverage. Said policies and
endorsements shall conform to the requirements herein stated. All certificates
and endorsements are to be received and approved by the SANITATION
DISTRICT before work commences. The SANITATION DISTRICT reserves the
right to require complete, certified copies of all required insurance policies,
including endorsements, effecting the coverage required, at any time. The
following are approved forms that must be submitted as proof of coverage:
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• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent.
• Additional Insurance (ISO Form) CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT
may reject alternatives that provide different or
less coverage to the SANITATION DISTRICT.
• Additional Insured Submit endorsement provided by carrier for the
(Auto Liability) SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent.
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2065 or equivalent.
H. Cancellation Notice
Each insurance policy required herein shall be endorsed to state that coverage
shall not be cancelled by either party, except after thirty (30)days' prior written
notice. The Cancellation Section of ACORD Form 25 (5/2010) shall state the
required thirty (30) days' written notification. The policy shall not terminate, nor
shall it be cancelled, nor the coverage reduced until thirty(30) days after written
notice is given to the SANITATION DISTRICT except for nonpayment of
premium, which shall require not less than ten (10) days written notice to the
SANITATION DISTRICT. Should there be changes in coverage or an increase in
deductible or SIR amounts, the CONSULTANT and its insurance broker/agent
shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR
amounts. The certified letter must be sent to the attention of Risk Management,
Div. 260, and shall be received by the SANITATION DISTRICT not less than
thirty (30)days prior to the effective date of the change(s) if the change would
reduce coverage or increase deductibles or SIR amounts or otherwise reduce or
limit the scope of insurance coverage provided to the SANITATION DISTRICT.
I. Primary Insurance
All liability policies shall contain a Primary and Non Contributory Clause. Any
other insurance maintained by the SANITATION DISTRICT shall be excess and
not contributing with the insurance provided by CONSULTANT.
J. Separation of Insured
All liability policies shall contain a "Separation of Insureds" clause.
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K. Non-Limiting (if applicable)
Nothing in this document shall be construed as limiting in any way, nor shall it
limit the indemnification provision contained in this Agreement, or the extent to
which CONSULTANT may be held responsible for payment of damages to
persons or property.
L. Deductibles and Self-Insured Retentions
Any deductible and/or self-insured retention must be declared to the
SANITATION DISTRICT on the Certificate of Insurance. All deductibles and/or
self-insured retentions require approval by the SANITATION DISTRICT. At the
option of the SANITATION DISTRICT, either: the insurer shall reduce or
eliminate such deductible or self-insured retention as respects the SANITATION
DISTRICT; or the CONSULTANT shall provide a financial guarantee satisfactory
to the SANITATION DISTRICT guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
M. Defense Costs
Liability policies shall have a provision that defense costs for all insureds and
additional insureds are paid in addition to and do not deplete any policy limits.
N. Subconsultants
The CONSULTANT shall be responsible to establish insurance requirements for
any Subconsultant hired by the CONSULTANT. The insurance shall be in
amounts and types reasonably sufficient to deal with the risk of loss involving the
Subconsultant's operations and work.
O. Limits Are Minimums
If the CONSULTANT maintains higher limits than any minimums shown above,
then SANITATION DISTRICT requires and shall be entitled to coverage for the
higher limits maintained by CONSULTANT.
8. SCOPE CHANGES
In the event of a change in the Scope of Work, requested by SANITATION DISTRICT,
the parties hereto shall execute an amendment to this Agreement setting forth with
particularity all terms of the new Agreement, including but not limited to any additional
CONSULTANT's fees.
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9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
Agreement, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this project by CONSULTANT.
CONSULTANT shall include a description of the scope of work to be done by each
Subconsultant and each CONSULTANT's project team member. CONSULTANT shall
include the respective compensation amounts for CONSULTANT and each
Subconsultant on a per-project-element basis, broken down as indicated in Section 2-
COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project
team members without prior written approval by the SANITATION DISTRICT.
10. ENGINEERING REGISTRATION
The CONSULTANT's personnel are comprised of registered engineers and a staff of
specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this Agreement
requires the services of a registered engineer. Such services hereunder will be
performed under the direct supervision of registered engineers.
11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine,
and audit, any and all books, records, documents and any other evidence of
procedures and practices that the SANITATION DISTRICT determines are
necessary to discover and verify that the CONSULTANT is in compliance with all
requirements under this Agreement. The CONSULTANT shall include the
SANITATION DISTRICT's right as described above, in any and all of their
subcontracts, and shall ensure that these rights are binding upon all
Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books,
records, documents and any other evidence of procedures and practices that the
SANITATION DISTRICT determines are necessary to discover and verify all
direct and indirect costs, of whatever nature, which are claimed to have been
incurred, or anticipated to be incurred or to ensure CONSULTANT's compliance
with all requirements under this Agreement during the term of this Agreement
and for a period of three (3)years after its termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION
DISTRICT's policy. The CONSULTANT shall make available to the
SANITATION DISTRICT for review and audit, all project related accounting
records and documents, and any other financial data within 15 days after receipt
of notice from the SANITATION DISTRICT. Upon SANITATION DISTRICT's
request, the CONSULTANT shall submit exact duplicates of originals of all
requested records to the SANITATION DISTRICT. If an audit is performed,
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CONSULTANT shall ensure that a qualified employee of the CONSULTANT will
be available to assist SANITATION DISTRICT's auditor in obtaining all project
related accounting records and documents, and any other financial data.
12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor
and nothing herein shall be deemed to make CONSULTANT an employee of the
SANITATION DISTRICT.
13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of
this Agreement, or changes thereto, shall be effected by delivery of said notices in
person or by depositing said notices in the U.S. mail, registered or certified mail, return
receipt requested, postage prepaid.
Notices shall be mailed to the SANITATION DISTRICT at: ` y
ORANGE COUNTY SANITATION DISTRICT a
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: «Contracts Administrator's Names, «Contracts Administrator's Title»
Copy: «Project Manager's Name», Project Manager
Notices shall be mailed to CONSULTANT at:
«CONSULTANT COMPANY»
«Street Address»
«City, State Zip))
Attention: «CONSULTANT'S Representative»
All communication regarding the Scope of Work, will be addressed to the Project
Manager. Direction from other SANITATION DISTRICT's staff must be approved in
writing by the SANITATION DISTRICT's Project Manager prior to action from the
CONSULTANT.
14. TERMINATION
The SANITATION DISTRICT may terminate this Agreement at any time, without cause,
upon giving thirty(30) days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this Agreement upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in
accordance with the provisions of this Agreement, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT and/or
CONSULTANT in accordance with Section 13- NOTICES.
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15. DOCUMENTS AND STUDY MATERIALS
The documents and study materials for this project shall become the property of the
SANITATION DISTRICT upon the termination or completion of the work.
CONSULTANT agrees to furnish to the SANITATION DISTRICT copies of all
memoranda, correspondence, computation and study materials in its files pertaining to
the work described in this Agreement, which is requested in writing by the SANITATION
DISTRICT.
16. COMPLIANCE
CONSULTANT certifies by the execution of this Agreement that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in
compliance with all federal, state and local directives and executive orders regarding
non-discrimination in employment; and that it agrees to demonstrate positively and
aggressively the principle of equal opportunity in employment.
17. AGREEMENT EXECUTION AUTHORIZATION \
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each party is a person duly authorized to
execute agreements for that party.
18. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration
under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), or similar
organization or entity conducting alternate dispute resolution services.
19. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, Costs and necessary
disbursements in addition to any other relief to which it may be entitled.
20. PROGRESS REPORTS
Monthly progress reports shall be submitted for review by the tenth day of the following
month and must include as a minimum: 1) current activities, 2)future activities, 3)
potential items that are not included in the Scope of Work, 4) concerns and possible
delays, 5) percentage of completion, and 6) budget status.
21. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry
and professional standards. If, within the 12-month period following completion of its
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services, the SANITATION DISTRICT informs CONSULTANT that any part of the
services fails to meet those standards, CONSULTANT shall, within the time prescribed
by the SANITATION DISTRICT, take all such actions as are necessary to correct or
complete the noted deficiency(ies).
22. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the
SANITATION DISTRICT, which approval shall not be unreasonably withheld), protect
and hold harmless the SANITATION DISTRICT and all of SANITATION DISTRICT's
officers, directors, employees, CONSULTANT's, and agents (collectively the
"Indemnified Parties"), from and against any and all claims, damages, liabilities, causes
of action, suits, arbitration awards, losses,judgments, fines, penalties, costs and
expenses (including, without limitation, attorneys' fees, disbursements and court costs,
and all other professional, expert or CONSULTANT's fees and costs and the
SANITATION DISTRICT's general and administrative expenses; individually, a "Claim";
collectively, "Claims")which may arise from or are in any manner related, directly or
indirectly, to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this Agreement to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals,
officers, agents, employees, CONSULTANT's suppliers, CONSULTANT,
Subconsultants, subcontractors, and/or anyone employed directly or indirectly by any of
them, regardless of any contributing negligence or strict liability of an Indemnified Party.
Notwithstanding the foregoing, nothing herein shall be construed to require
CONSULTANT to indemnify the Indemnified Parties from any Claim arising solely from:
(A)the active negligence or willful misconduct of the Indemnified Parties; or
(B)a natural disaster or other act of God, such as an earthquake; or
(C)the independent action of a third party who is neither one of the Indemnified Parties
nor the CONSULTANT, nor its principal, officer, agent, employee, nor
CONSULTANT's supplier, CONSULTANT, Subconsultant, subcontractor, nor
anyone employed directly or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from
more than one cause if any such cause taken alone would otherwise result in the
obligation to indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by
CONSULTANT of any of the provisions of this Agreement. Under no circumstances
shall the insurance requirements and limits set forth in this Agreement be construed to
limit CONSULTANT's indemnification obligation or other liability hereunder. The terms
of this Agreement are contractual and the result of negotiation between the parties
hereto. Accordingly, any rule of construction of contracts (including, without limitation,
California Civil Code Section 1654)that ambiguities are to be construed against the
drafting party, shall not be employed in the interpretation of this Agreement.
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23. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In
the event a final judgment, arbitration, award, order, settlement, or other final resolution
expressly determines that the claim did not arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the CONSULTANT, to any extent,
then the DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or
earlier termination of this Agreement until such time as action against the Indemnified
Parties for such matter indemnified hereunder is fully and finally barred by the applicable
statute of limitations.
24. CONSULTANT PERFORMANCE
The CONSULTANT's performance shall be evaluated by the SANITATION DISTRICT.
A copy of the evaluation shall be sent to the CONSULTANT for comment. The
evaluation, together with the comments, shall be retained by the SANITATION
DISTRICT and may be considered in future CONSULTANT selection processes.
25. COMPLIANCE WITH OCSD POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all OCSD policies and procedures
including the OCSD Safety Standards, as applicable, all of which may be amended from
time to time.
26. CLOSEOUT
When the SANITATION DISTRICT determines that all Work authorized under the
Agreement is fully complete and that the SANITATION DISTRICT requires no further
work from CONSULTANT, or the Agreement is otherwise terminated or expires in
accordance with the terms of the Agreement, the SANITATION DISTRICT shall give the
Consultant written notice that the Agreement will be closed out. CONSULTANT shall
submit all outstanding billings, work submittals, deliverables, reports or similarly related
documents as required under the Agreement within thirty (30)days of receipt of notice of
Agreement closeout.
Upon receipt of CONSULTANT's submittals, the SANITATION DISTRICT shall
commence a closeout audit of the Agreement and will either:
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i. Give the CONSULTANT a final Agreement Acceptance: or
ii. Advise the CONSULTANT in writing of any outstanding item or items which must be
furnished, completed, or corrected at the CONSULTANT's cost.
CONSULTANT shall be required to provide adequate resources to fully support any
administrative closeout efforts identified in this Agreement. Such support must be
provided within the timeframe requested by the SANITATION DISTRICT.
Notwithstanding the final Agreement Acceptance the CONSULTANT will not be relieved
of its obligations hereunder, nor will the CONSULTANT be relieved of its obligations to
complete any portions of the work, the non-completion of which were not disclosed to
the SANITATION DISTRICT (regardless of whether such nondisclosures were
fraudulent, negligent, or otherwise); and the CONSULTANT shall remain obligated under
all those provisions of the Agreement which expressly or by their nature extend beyond
and survive final Agreement Acceptance.
Any failure by the SANITATION DISTRICT to reject the work or to reject the
CONSULTANT's request for final Agreement Acceptance as set forth above shall not be
deemed to be acceptance of the work by the SANITATION DISTRICT for any purpose
nor imply acceptance of, or agreement with, the CONSULTANT's request for final
Agreement Acceptance.
27. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between the
Parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
a
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IN WITNESS WHEREOF, this Agreement has been executed in the name of the SANITATION
DISTRICT, by its officers thereunto duly authorized, and CONSULTANT as of the day and year
first above written.
CONSULTANT: —
By
Date
Printed Name & Title
ORANGE COUNTY SANITATION DISTRICT
By
Chair, Board of Directors Date
By
Clerk of the Board Date
By
Contracts, Purchasing and Materials Date
Management Division Manager
Attachments: Attachment" —Sco aof Work
Attachment "B"—Labor Hour Matrix
Attachment "C"—Conflict of Interest Disclaimer
Attachment"D"—Allowable Direct Costs
Attachment "E"—Fee Proposal
Attachment"F"— Professional Design Services Agreement (PDSA)
Attachment"G"—Acknowledgement of PDSA
Attachment"H"—NOT USED
Attachment"I"—Cost Matrix and Summary
Attachment"J"—Acknowledgement of Addenda Receipt
Attachment"K"—Hourly Rate Schedule for Minor Subconsultant
Attachment"L"—OCSD Safety Standards (ocsd.com/opengov/safety-and-
human-resources-policy)
XXX:xx
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OPERATIONS COMMITTEE Meng Dat0 TOBE. Dir.
07/lti06/16 07/27/1Or6
AGENDA REPORT Item1umber Item Number
0
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: PRIMARY TREATMENT REHABILITATION AT PLANT 2, PROJECT
NO. P2-98
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Professional Design Services Agreement with Black & Veatch to
provide engineering design services for Primary Treatment Rehabilitation at
Plant 2, Project No. P2-98, for a total amount not to exceed $18,141,423; and
B. Approve a contingency of$1,814,142 (10%).
BACKGROUND
Primary treatment is used to separate heavy solids from screened water upstream of
biological treatment, and is an essential portion of the wastewater treatment process. The
primary treatment facilities at Plant No. 2 consist of fourteen circular clarifiers built
between 1960 and 1985 with associated piping, distribution structures, sludge pumping,
odor control, and power distribution.
RELEVANT STANDARDS
• Maintain a proactive asset management program
• Support OCWD expansion of GWRS
PROBLEM
All fourteen primary clarifiers and associated facilities at Plant No. 2 are in need of
rehabilitation or replacement based on physical condition, level of performance, and life
cycle costs. The four oldest clarifiers, referred to as the A-Side Clarifiers, are at the end
of their structural life and need to be replaced entirely. In addition, the existing effluent
piping in the area constrains operation of the secondary facilities and cannot support the
proposed segregation of Plant No. 2 as proposed in the Effluent Reuse Study, Project
No. SP-173. In addition, all of the clarifiers have identified seismic and geotechnical
deficiencies.
Page 1 of 4
PROPOSED SOLUTION
In 2015, the Orange County Sanitation District (Sanitation District) prepared a Concept
Report to define the appropriate scope of work for rehabilitation or replacement of the
primary treatment facilities at Plant No. 2.
• The four oldest clarifiers (A-Side) should be replaced based on their poor structural
condition and seismic risks.
• The other ten clarifiers (B-Side and C-Side) should be rehabilitated and seismically
upgraded.
• Primary influent and effluent piping should be replaced and rehabilitated as required
to ensure long-term reliability and satisfy all hydraulic requirements of reuse.
• The existing two odor control complexes should be replaced with a new system with
greater removal capacity.
• New power distribution facilities should be constructed to replace the existing system
which consists of aging equipment and does not accommodate required on-going
monitoring and maintenance.
Construction of the proposed recommendations must be staged in a way that maintains
on-going operations and the ability to handle peak flows during wet-weather periods. The
preliminary plan is to divide the work into two major construction packages. The first will
replace the A-Side Clarifiers, the odor control system, and the power distribution system.
When that project is finished,the second construction package will rehabilitate the B-Side
and C-Side Clarifiers with the associated piping. Due to the flow restrictions, size, and
complexity of the work, design and construction of the A-Side Clarifier contract will take
seven to eight years. Rehabilitation of the ten clarifiers in the B-Side and C-Side will take
an additional five to six years,for total project duration, including design, of approximately
fourteen years.
The scope of the Professional Design Services agreement includes preliminary design
for the entire project, and final design only for the first construction project. Due to the
length of time before the final design of the second construction package would start, staff
concluded that a separate solicitation should be used to determine the most qualified firm
and team at that time. The proposed project budget, however, includes an allowance for
the final design services of the second construction package.
TIMING CONCERNS
The primary treatment system at Plant No. 2 is aging and becoming less reliable. Due to
the time required to replace and rehabilitate the treatment facilities, it is important that the
work be initiated at this time.
RAMIFICATIONS OF NOT TAKING ACTION
The ramifications of not taking action include increasing maintenance costs and reduced
reliability with an accompanying lower level of service. The site is also at risk of a seismic
Page 2 of 4
event on the Newport-Inglewood Fault with resulting liquefaction and structural
settlement.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
On February 26, 2016, the Sanitation District advertised for preliminary and final design
of the P2-98 project. Three proposals were received on April 26, 2016. Firms which
submitted proposals were: (1) Black and Veatch, (2)MW H Americas, and (3)CDM-Smith.
The three firms were interviewed by the Sanitation District's Evaluation Committee on
May 26, 2016.
The Evaluation Committee, consisting of five representatives from the Engineering and
Maintenance Departments, who reviewed each proposal and interviewed each firm.
Following the interviews, each firm was ranked in accordance with the evaluation process
set forth in the Sanitation District Board of Director's Ordinance No. OCSD47. An
additional representative from the Contracts Administration Division participated in the
evaluation process as a non-voting member. The proposals were evaluated according to
the following criteria: 1) project understanding, 2) applicable related project experience
and 3) project team and staff qualifications. The results of the evaluation process are
shown in Table 1.
TABLE 1
EVALUATION SUMMARY
Black &Veatch MWH Americas, Inc. CDM Smith
Consultant Evaluator
Reviewer A 1 2 3
Reviewer B 1 2 3
Reviewer C 1 2 3
Reviewer D 1 2 3
Reviewer E 1 2 3
Overall Ranking 1 2 3
Proposal Fee $18,490,982
Negotiated Fee Proposal 1 $18,141,423
*Based on scores after interview
Page 3 of 4
The negotiated fee includes $990,633 for an additional Task 5 which provides design
services for a phased early start construction project to accommodate the schedule for
the GWRS Final Expansion (Project SP-137).This early start construction project will be
authorized in the future, if the evaluation studies indicate a cost savings to the District.
CEQA
The 2006 Facilities Plan Update contained an EIR for rehabilitation of the primary
clarifiers at Plant No. 2. However, the EIR did not cover the entire scope of work for the
replacement and rehabilitation of the facilities in the P2-98 project. This project will
provide an initial study and a Supplemental EIR which will include all the work to be
conducted in the P2-98 projects.
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted, (Budget FY2016-17, Section 8, and Page 46)
and the project budget is sufficient for the recommended action.
Date of Approval Contract Amount Continaencv
07/27/26 $18,141,423 $1,814,142
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (wwwocsd.com) with the
complete agenda package:
Draft Professional Design Services Agreement
JM:dm:gc
Page 4 of 4
PROFESSIONAL DESIGN SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into to be effective the 27U day of July, 2016
by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as
"SANITATION DISTRICT", and eCONSULTANT COMPANY», for purposes of this Agreement
hereinafter referred to as "CONSULTANT".
WITNESSETH:
WHEREAS, the SANITATION DISTRICT desires to engage a CONSULTANT for
Primary Treatment System Rehabilitation and Replacement at Plant 2, Project No. P2-98;
and to provide Design services for circular clarifiers, power supply and distribution systems,
odor control and treatment systems and all associated utility requirements and,
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary professional services; and,
WHEREAS, the SANITATION DISTRICT has adopted procedures for the selection of
professional services and has proceeded in accordance with said procedures to select a
CONSULTANT to perform this work; and,
WHEREAS, at its regular meeting on July 27, 2016 the Board of Directors, by Minute
Order, accepted the recommendation of the Operations Committee to approve this Agreement
between the SANITATION DISTRICT and CONSULTANT.
NOW, THEREFORE, in consideration of the promises and mutual benefits, which will
result to the parties in carrying out the terms of this Agreement, it is mutually agreed as follows:
1. SCOPE OF WORK
CONSULTANT agrees to furnish necessary professional and technical services to
accomplish those project elements outlined in the Scope of Work attached hereto as
Attachment "A", and by this reference made a part of this Agreement.
A. The CONSULTANT shall be responsible for the professional quality, technical
accuracy, completeness, and coordination of all design, drawings, specifications,
and other services furnished by the CONSULTANT under this Agreement,
including the work performed by its Subconsultants. Where approval by the
SANITATION DISTRICT is indicated, it is understood to be conceptual approval
only and does not relieve the CONSULTANT of responsibility for complying with
all laws, codes, industry standards and liability for damages caused by errors,
omissions, noncompliance with industry standards, and/or negligence on the part
of the CONSULTANT or its Subconsultants.
B. CONSULTANT is responsible for the quality of work prepared under this
Agreement and shall ensure that all work is performed to the standards of best
engineering practice for clarity, uniformity, and completeness. CONSULTANT
shall respond to all comments, suggestions, and recommendations on the
SANITATION DISTRICT's review comment sheets (i.e. DS1, DS2 and DS3). All
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comments shall be incorporated into the design prior to the next submittal
deadline or addressed, in writing, as to why the comment has not been
incorporated. CONSULTANT shall ensure that each submittal is 100% accurate
for the level of work submitted (i.e. correct references, terms, capitalization or
equal status, spelling, punctuation, etc.)
C. In the event that work is not performed to the satisfaction of the SANITATION
DISTRICT and does not conform to the requirements of this Agreement or any
applicable industry standards, the CONSULTANT shall, without additional
compensation, promptly correct or revise any errors or deficiencies in its designs,
drawings, specifications, or other services within the timeframe specified by the
Project Engineer/Project Manager. The SANITATION DISTRICT may charge to
CONSULTANT all costs, expenses and damages associated with any such
corrections or revisions.
D. All CAD drawings, figures, and other work shall be produced by CONSULTANTS
and Subconsultants using the SANITATION DISTRICT CAD Manual.
Conversion of CAD work from any other non-standard CAD format to the
SANITATION DISTRICT format shall not be acceptable in lieu of this
requirement.
Electronic files shall conform to the SANITATION DISTRICT specifications. Any
changes to these specifications by the CONSULTANT are subject to review and
approval of the SANITATION DISTRICT.
Electronic files shall be subject to an acceptance period of«Number of Days»
calendar days during which the SANITATION DISTRICT shall perform
appropriate reviews and including CAD Manual compliance. CONSULTANT shall
correct any discrepancies or errors detected and reported within the acceptance
period at no additional cost to the SANITATION DISTRICT.
E. The CONSULTANT shall ensure that all plans and specifications prepared, or
recommended under this Agreement allow for competitive bidding. The
CONSULTANT shall design such plans or specifications so that procurement of
services, labor or materials are not available from only one source, and shall not
design plans and specifications around a single or specific product, piece of
major equipment or machinery, a specific patented design or a proprietary
process, unless required by principles of sound engineering practice and
supported by a written justification that has been approved in writing by the
SANITATION DISTRICT. The CONSULTANT shall submit this written
justification to the SANITATION DISTRICT prior to beginning work on such plans
and specifications. Whenever the CONSULTANT recommends a specific
product or equipment for competitive procurement, such recommendation shall
include at least two brand names of products that are capable of meeting the
functional requirements applicable to the project.
F. All professional services performed by the CONSULTANT, including but not
limited to all drafts, data, correspondence, proposals, reports, and estimates
compiled or composed by the CONSULTANT, pursuant to this Agreement, are
for the sole use of the SANITATION DISTRICT, its agents and employees.
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Neither the documents nor their contents shall be released to any third party
without the prior written consent of the SANITATION DISTRICT. This provision
does not apply to information that (a)was publicly known, or otherwise known to
the CONSULTANT, at the time that it was disclosed to the CONSULTANT by the
SANITATION DISTRICT, (b)subsequently becomes publicly known to the
CONSULTANT other than through disclosure by the SANITATION DISTRICT.
2. COMPENSATION
Total compensation shall be paid to CONSULTANT for services in accordance with the
following provisions:
A. Total Compensation
Total compensation shall be in an amount not to exceed «Grand Total Written
Amount» Dollars ($«Grand Total Amounb). Total compensation to
CONSULTANT including burdened labor (salaries plus benefits), overhead,
profit, direct costs, and Subconsultant(s)fees and costs shall not exceed the sum
set forth in Attachment"E" - Fee Proposal.
B. Labor
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall pay to CONSULTANT a sum equal to the
burdened salaries (salaries plus benefits)actually paid by CONSULTANT
charged on an hourly-rate basis to this project and paid to the personnel of
CONSULTANT. Upon request of the SANITATION DISTRICT, CONSULTANT
shall provide the SANITATION DISTRICT with certified payroll records of all
employees' work that is charged to this project.
C. Overhead
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall compensate CONSULTANT and Subconsultants
for overhead at the rate equal to the percentage of burdened labor as specified in
Attachment"E"- Fee Proposal.
D. Profit
Profit for CONSULTANT and Subconsultants shall be a percentage of consulting
services fees (Burdened Labor and Overhead). When the consulting or
subconsulting services amount is $250,000 or less, the maximum Profit shall be
10%. Between $250,000 and $2,500,000, the maximum Profit shall be limited by
a straight declining percentage between 10% and 5%. For consulting or
subconsulting services fees with a value greater than $2,500,000, the maximum
Profit shall be 5%. Addenda shall be governed by the same maximum Profit
percentage after adding consulting services fees.
As a portion of the total compensation to be paid to CONSULTANT and
Subconsultants, the SANITATION DISTRICT shall pay profit for all services
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rendered by CONSULTANT and Subconsultants for this project according to
Attachment"E"- Fee Proposal.
E. Subconsultants
For any Subconsultant whose fees for services are greater than or equal to
$100,000 (excluding out-of-pocket costs), CONSULTANT shall pay to
Subconsultant total compensation in accordance with the Subconsultant amount
specified in Attachment"E"- Fee Proposal.
For any Subconsultant whose fees for services are less than $100,000,
CONSULTANT may pay to Subconsultant total compensation on an hourly-rate
basis per the attached hourly rate Schedule and as specified in the Scope of
Work. The SANITATION DISTRICT shall pay to CONSULTANT the actual costs
of Subconsultant fees and charges in an amount not to exceed the sum set forth
in Attachment"E"- Fee Proposal.
F. Direct Costs
The SANITATION DISTRICT shall pay to CONSULTANT and Subconsultants
the actual costs of permits and associated fees, travel and licenses for an
amount not to exceed the sum set forth in Attachment"E"- Fee Proposal. The
SANITATION DISTRICT shall also pay to CONSULTANT actual costs for
equipment rentals, leases or purchases with prior approval of the SANITATION
DISTRICT. Upon request, CONSULTANT shall provide to the SANITATION
DISTRICT receipts and other documentary records to support CONSULTANT's
request for reimbursement of these amounts, see Attachment"D"-Allowable
Direct Costs. All incidental expenses shall be included in overhead pursuant to
Section 2 -COMPENSATION above.
G. Reimbursable Direct Costs
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable
travel and business expenses as described in this section and further described in
Attachment"D" -Allowable Direct Costs to this Agreement. The reimbursement of
the above mentioned expenses will be based on an "accountable plan' as
considered by Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
http://www.gsa.gov/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical
means of management of reimbursable costs inclusive but not limited to travel,
lodging and meals arrangements. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem" as deemed the most
practical.
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CONSULTANT shall be responsible for returning to the SANITATION DISTRICT
any excess reimbursements after the reimbursement has been paid by the
SANITATION DISTRICT.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in
advance.
Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles,
Ventura, San Bernardino, Riverside, San Diego, Imperial and Kern Counties.
Automobile mileage is reimbursable if CONSULTANT is required to utilize
personal vehicle for local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed
at the discretion of the SANITATION DISTRICT based on reasonableness of
meeting schedules and the amount of time required for travel by the
CONSULTANT. Such determination will be made on a case-by-case basis and at
the discretion of the SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by IRS shall be utilized for travel
meals reimbursements. Per diem rates shall be applied to meals that are
appropriate for travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"-Allowable Direct Costs of this Agreement.
H. Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Proposal will exceed seventy-five percent (75%) of
the not-to-exceed amount of the Agreement, including approved additional
compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional
amount necessary to complete the services. Any cost incurred in excess of the
approved not-to-exceed amount, without the express written consent of the
SANITATION DISTRICT's authorized representative shall be at CONSULTANT's
own risk. This written notice shall be provided separately from, and in addition to
any notification requirements contained in the CONSULTANT's invoice and
monthly progress report. Failure to notify the SANITATION DISTRICT that the
services cannot be completed within the authorized not-to-exceed amount is a
material breach of this Agreement.
3. REALLOCATION OF TOTAL COMPENSATION
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to
approve a reallocation of the incremental amounts constituting the total compensation,
provided that the total compensation is not increased.
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4. PAYMENT
A. Monthly Invoice: CONSULTANT shall include in its monthly invoice, a detailed
breakdown of costs associated with the performance of any corrections or
revisions of the work for that invoicing period. CONSULTANT shall allocate costs
in the same manner as it would for payment requests as described in this Section
of the Agreement. CONSULTANT shall warrant and certify the accuracy of these
costs and understand that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
B. CONSULTANT may submit monthly or periodic statements requesting payment
for those items included in Section 2- COMPENSATION hereof in the format as
required by the SANITATION DISTRICT. Such requests shall be based upon the
amount and value of the work and services performed by CONSULTANT under
this Agreement and shall be prepared by CONSULTANT and accompanied by
such supporting data, including a detailed breakdown of all costs incurred and
project element work performed during the period covered by the statement, as
may be required by the SANITATION DISTRICT.
Upon approval of such payment request by the SANITATION DISTRICT,
payment shall be made to CONSULTANT as soon as practicable of one hundred
percent (100%)of the invoiced amount on a per-project-element basis.
If the SANITATION DISTRICT determines that the work under this Agreement or
any specified project element hereunder, is incomplete and that the amount of
payment is in excess of:
i. The amount considered by the SANITATION DISTRICT's Director of
Engineering to be adequate for the protection of the SANITATION DISTRICT;
or
ii. The percentage of the work accomplished for each project element.
He may, at his discretion, retain an amount equal to that which insures that the
total amount paid to that date does not exceed the percentage of the completed
work for each project element or the project in its entirety.
C. CONSULTANT may submit periodic payment requests for each 30-day period of
this Agreement for the profit as set forth in Section 2 -COMPENSATION above.
Said profit payment request shall be proportionate to the work actually
accomplished to date on a per-project-element basis. In the event the
SANITATION DISTRICT's Director of Engineering determines that no satisfactory
progress has been made since the prior payment, or in the event of a delay in the
work progress for any reason, the SANITATION DISTRICT shall have the right to
withhold any scheduled proportionate profit payment.
D. Upon satisfactory completion by CONSULTANT of the work called for under the
terms of this Agreement, and upon acceptance of such work by the SANITATION
DISTRICT, CONSULTANT will be paid the unpaid balance of any money due for
such work, including any retained percentages relating to this portion of the work.
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E. Upon satisfactory completion of the work performed hereunder and prior to final
payment under this Agreement for such work, or prior settlement upon
termination of this Agreement, and as a condition precedent thereto,
CONSULTANT shall execute and deliver to the SANITATION DISTRICT a
release of all claims against the SANITATION DISTRICT arising under or by
virtue of this Agreement other than such claims, if any, as may be specifically
exempted by CONSULTANT from the operation of the release in stated amounts
to be set forth therein.
F. Pursuant to the California False Claims Act(Government Code Sections 12650-
12655), any CONSULTANT that knowingly submits a false claim to the
SANITATION DISTRICT for compensation under the terms of this Agreement
may be held liable for treble damages and up to a ten thousand dollars ($10,000)
civil penalty for each false claim submitted. This Section shall also be binding on
all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false
claim when the CONSULTANT or Subconsultant: a) knowingly presents or causes
to be presented to an officer or employee of the SANITATION DISTRICT a false
claim or request for payment or approval; b) knowingly makes, uses, or causes to
be made or used a false record or statement to get a false claim paid or approved
by the SANITATION DISTRICT; c) conspires to defraud the SANITATION
DISTRICT by getting a false claim allowed or paid by the SANITATION DISTRICT;
d) knowingly makes, uses, or causes to be made or used a false record or
statement to conceal, avoid, or decrease an obligation to the SANITATION
DISTRICT; or e) is a beneficiary of an inadvertent submission of a false claim to
the SANITATION DISTRICT, and fails to disclose the false claim to the
SANITATION DISTRICT within a reasonable time after discovery of the false claim.
5. CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS (DIR) REGISTRATION
AND RECORD OF WAGES
A. To the extent CONSULTANT's employees and/or Subconsultants who will
perform Work during the design and preconstruction phases of a construction
contract for which Prevailing Wage Determinations have been issued by the DIR
and as more specifically defined under Labor Code Section 1720 at seq,
CONSULTANT and Subconsultants shall comply with the registration
requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section
1771.4, the Work is subject to compliance monitoring and enforcement by the
DIR.
B. The CONSULTANT and Subconsultants shall maintain accurate payroll records
and shall comply with all the provisions of Labor Code Section 1776, and shall
submit payroll records to the Labor Commissioner pursuant to Labor Code
Section 1771.4(a)(3). Penalties for non-compliance with the requirements of
Section 1776 may be deducted from progress payments per Section 1776.
C. Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants
shall furnish a copy of all certified payroll records to SANITATION DISTRICT
and/or general public upon request, provided the public request is made through
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SANITATION DISTRICT, the Division of Apprenticeship Standards or the
Division of Labor Enforcement of the Department of Industrial Relations.
D. The CONSULTANT and Subconsultants shall comply with the job site notices
posting requirements established by the Labor Commissioner per Title 8,
California Code of Regulations Section 16461(e).
6. DOCUMENT OWNERSHIP—SUBSEQUENT CHANGES TO PLANS AND
SPECIFICATIONS
A. Ownership of Documents for the Professional Services performed.
All documents, including but not limited to, original plans, studies, sketches,
drawings, computer printouts and disk files, and specifications prepared in
connection with or related to the Scope of Work or Professional Services, shall
be the property of the SANITATION DISTRICT. The SANITATION DISTRICT's
ownership of these documents includes use of, reproduction or reuse of and all
incidental rights, whether or not the work for which they were prepared has been
performed. The SANITATION DISTRICT ownership entitlement arises upon
payment or any partial payment for work performed and includes ownership of
any and all work product completed prior to that payment. This Section shall
apply whether the CONSULTANT's Professional Services are terminated: a) by
the completion of the Agreement, or b) in accordance with other provisions of this
Agreement. Notwithstanding any other provision of this paragraph or Agreement,
the CONSULTANT shall have the right to make copies of all such plans, studies,
sketches, drawings, computer printouts and disk files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent
changes to or uses of the plans or specifications, where the subsequent changes
or uses are not authorized or approved by CONSULTANT, provided that the
service rendered by CONSULTANT was not a proximate cause of the damage.
7. INSURANCE
A. General
i. Insurance shall be issued and underwritten by insurance companies
acceptable to the SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial
Rating of at least Class Vill, or better, in accordance with the most current
A.M. Best's Guide Rating. However, the SANITATION DISTRICT will accept
State Compensation Insurance Fund, for the required policy of Worker's
Compensation Insurance subject to the SANITATION DISTRICT's option to
require a change in insurer in the event the State Fund financial rating is
decreased below"B". Further, the SANITATION DISTRICT will require
CONSULTANT to substitute any insurer whose rating drops below the levels
herein specified. Said substitution shall occur within twenty (20)days of
written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
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iii. Coverage shall be in effect prior to the commencement of any work under this
Agreement.
B. General Liability
The CONSULTANT shall maintain during the life of this Agreement, including the
period of warranty, Commercial General Liability Insurance written on an
occurrence basis providing the following minimum limits of liability coverage:
Two Million Dollars ($2,000,000) per occurrence with Two Million Dollars
($2,000,000)aggregate. Said insurance shall include coverage for the following
hazards: Premises-Operations, blanket contractual liability (for this Agreement),
products liability/completed operations (including any product manufactured or
assembled), broad form property damage, blanket contractual liability,
independent contractors liability, personal and advertising injury, mobile
equipment, owners and contractors protective liability, and cross liability and
severability of interest clauses. A statement on an insurance certificate will not be
accepted in lieu of the actual additional insured endorsement(s). If requested by
SANITATION DISTRICT and applicable, XCU coverage (Explosion, Collapse
and Underground) and Riggers/On Hook Liability must be included in the
General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability
The minimum limits of general liability and Automotive Liability Insurance
required, as set forth herein, shall be provided for through either a single policy of
primary insurance or a combination of policies of primary and umbrella excess
coverage. Umbrella excess liability coverage shall be issued with limits of liability
which, when combined with the primary insurance, will equal the minimum limits
for general liability and automotive liability.
D. AutomotiveNehicle liability Insurance
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles,
trucks, and other vehicles providing the following minimum limits of liability
coverage: Combined single limit of Two Million Dollars ($2,000,000) or
alternatively, Two Million Dollars ($2,000,000) per person for bodily injury and
One Million Dollars ($1,000,000) per accident for property damage. A statement
on an insurance certificate will not be accepted in lieu of the actual additional
insured endorsement.
E. Worker's Compensation Insurance
The CONSULTANT shall provide such Workers' Compensation Insurance as
required by the Labor Code of the State of California in the amount of the
statutory limit, including Employer's Liability Insurance with a minimum limit of
One Million Dollars ($1,000,000) per occurrence. Such Worker's Compensation
Insurance shall be endorsed to provide for a waiver of subrogation in favor of the
SANITATION DISTRICT. A statement on an insurance certificate will not be
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accepted in lieu of the actual endorsements unless the insurance carrier is State
of California Insurance Fund and the identifier"SCIF" and endorsement numbers
2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage
for Jones Act claims.
F. Errors and Omissions/Professional Liability
CONSULTANT shall maintain in full force and effect, throughout the term of this
Agreement, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Ten Million Dollars
($10,000,000)with limits in accordance with the provisions of this Paragraph.
If the policy of insurance is written on a "claims made" basis, said policy shall be
continued in full force and effect at all times during the term of this Agreement,
and for a period of five (5) years from the date of the completion of the services
hereunder.
In the event of termination of said policy during this period, CONSULTANT shall
obtain continuing insurance coverage for the prior acts or omissions of
CONSULTANT during the course of performing services under the term of this
Agreement. Said coverage shall be evidenced by either a new policy evidencing
no gap in coverage or by separate extended "tail" coverage with the present or
new carrier.
In the event the present policy of insurance is written on an "occurrence" basis,
said policy shall be continued in full force and effect during the term of this
Agreement or until completion of the services provided for in this Agreement,
whichever is later. In the event of termination of said policy during this period,
new coverage shall be obtained for the required period to insure for the prior acts
of CONSULTANT during the course of performing services under the term of this
Agreement.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of
insurance in a form acceptable to the SANITATION DISTRICT indicating the
deductible or self-retention amounts and the expiration date of said policy, and
shall provide renewal certificates not less than ten (10)days prior to the
expiration of each policy term.
G. Proof of Coverage
The CONSULTANT shall furnish the SANITATION DISTRICT with original
certificates and amendatory endorsements effecting coverage. Said policies and
endorsements shall conform to the requirements herein stated. All certificates
and endorsements are to be received and approved by the SANITATION
DISTRICT before work commences. The SANITATION DISTRICT reserves the
right to require complete, certified copies of all required insurance policies,
including endorsements, effecting the coverage required, at any time. The
following are approved forms that must be submitted as proof of coverage:
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• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent.
• Additional Insurance (ISO Form) CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT
may reject alternatives that provide different or
less coverage to the SANITATION DISTRICT.
• Additional Insured Submit endorsement provided by carrier for the
(Auto Liability) SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent.
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2065 or equivalent.
H. Cancellation Notice
Each insurance policy required herein shall be endorsed to state that coverage
shall not be cancelled by either party, except after thirty (30)days' prior written
notice. The Cancellation Section of ACORD Form 25 (5/2010) shall state the
required thirty (30) days' written notification. The policy shall not terminate, nor
shall it be cancelled, nor the coverage reduced until thirty(30) days after written
notice is given to the SANITATION DISTRICT except for nonpayment of
premium, which shall require not less than ten (10) days written notice to the
SANITATION DISTRICT. Should there be changes in coverage or an increase in
deductible or SIR amounts, the CONSULTANT and its insurance broker/agent
shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR
amounts. The certified letter must be sent to the attention of Risk Management,
Div. 260, and shall be received by the SANITATION DISTRICT not less than
thirty (30)days prior to the effective date of the change(s) if the change would
reduce coverage or increase deductibles or SIR amounts or otherwise reduce or
limit the scope of insurance coverage provided to the SANITATION DISTRICT.
I. Primary Insurance
All liability policies shall contain a Primary and Non Contributory Clause. Any
other insurance maintained by the SANITATION DISTRICT shall be excess and
not contributing with the insurance provided by CONSULTANT.
J. Separation of Insured
All liability policies shall contain a "Separation of Insureds" clause.
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K. Non-Limiting (if applicable)
Nothing in this document shall be construed as limiting in any way, nor shall it
limit the indemnification provision contained in this Agreement, or the extent to
which CONSULTANT may be held responsible for payment of damages to
persons or property.
L. Deductibles and Self-Insured Retentions
Any deductible and/or self-insured retention must be declared to the
SANITATION DISTRICT on the Certificate of Insurance. All deductibles and/or
self-insured retentions require approval by the SANITATION DISTRICT. At the
option of the SANITATION DISTRICT, either: the insurer shall reduce or
eliminate such deductible or self-insured retention as respects the SANITATION
DISTRICT; or the CONSULTANT shall provide a financial guarantee satisfactory
to the SANITATION DISTRICT guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
M. Defense Costs
Liability policies shall have a provision that defense costs for all insureds and
additional insureds are paid in addition to and do not deplete any policy limits.
N. Subconsultants
The CONSULTANT shall be responsible to establish insurance requirements for
any Subconsultant hired by the CONSULTANT. The insurance shall be in
amounts and types reasonably sufficient to deal with the risk of loss involving the
Subconsultant's operations and work.
O. Limits Are Minimums
If the CONSULTANT maintains higher limits than any minimums shown above,
then SANITATION DISTRICT requires and shall be entitled to coverage for the
higher limits maintained by CONSULTANT.
8. SCOPECHANGES
In the event of a change in the Scope of Work, requested by SANITATION DISTRICT,
the parties hereto shall execute an amendment to this Agreement setting forth with
particularity all terms of the new Agreement, including but not limited to any additional
CONSULTANT's fees.
9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
Agreement, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this project by CONSULTANT.
CONSULTANT shall include a description of the scope of work to be done by each
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Subconsultant and each CONSULTANT's project team member. CONSULTANT shall
include the respective compensation amounts for CONSULTANT and each
Subconsultant on a per-project-element basis, broken down as indicated in Section 2-
COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project
team members without prior written approval by the SANITATION DISTRICT.
10. ENGINEERING REGISTRATION
The CONSULTANT's personnel are comprised of registered engineers and a staff of
specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this Agreement
requires the services of a registered engineer, such services hereunder will be
performed under the direct supervision of registered engineers.
11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine,
and audit, any and all books, records, documents and any other evidence of
procedures and practices that the SANITATION DISTRICT determines are
necessary to discover and verify that the CONSULTANT is in compliance with all
requirements under this Agreement. The CONSULTANT shall include the
SANITATION DISTRICT's right as described above, in any and all of their
subcontracts, and shall ensure that these rights are binding upon all
Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books,
records, documents and any other evidence of procedures and practices that the
SANITATION DISTRICT determines are necessary to discover and verify all
direct and indirect costs, of whatever nature, which are claimed to have been
incurred, or anticipated to be incurred or to ensure CONSULTANT's compliance
with all requirements under this Agreement during the term of this Agreement
and for a period of three (3)years after its termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION
DISTRICT's policy. The CONSULTANT shall make available to the
SANITATION DISTRICT for review and audit, all project related accounting
records and documents, and any other financial data within 15 days after receipt
of notice from the SANITATION DISTRICT. Upon SANITATION DISTRICT's
request, the CONSULTANT shall submit exact duplicates of originals of all
requested records to the SANITATION DISTRICT. If an audit is performed,
CONSULTANT shall ensure that a qualified employee of the CONSULTANT will
be available to assist SANITATION DISTRICT's auditor in obtaining all project
related accounting records and documents, and any other financial data.
12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor
and nothing herein shall be deemed to make CONSULTANT an employee of the
SANITATION DISTRICT.
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13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of
this Agreement, or changes thereto, shall be effected by delivery of said notices in
person or by depositing said notices in the U.S. mail, registered or certified mail, return
receipt requested, postage prepaid.
Notices shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Natasha Dubrovski, Principal Contracts Administrator
Copy: Dave MacDonald, Project Manager
Notices shall be mailed to CONSULTANT at:
«CONSULTANT COMPANY»
«Street Address»
«City, State Zips
Attention: ((CONSULTANT's Representative»
All communication regarding the Scope of Work, will be addressed to the Project
Manager. Direction from other SANITATION DISTRICT's staff must be approved in
writing by the SANITATION DISTRICT's Project Manager prior to action from the
CONSULTANT.
14. TERMINATION
The SANITATION DISTRICT may terminate this Agreement at any time, without cause,
upon giving thirty(30) days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this Agreement upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in
accordance with the provisions of this Agreement, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT and/or
CONSULTANT in accordance with Section 13- NOTICES.
15. DOCUMENTS AND STUDY MATERIALS
The documents and study materials for this project shall become the property of the
SANITATION DISTRICT upon the termination or completion of the work.
CONSULTANT agrees to furnish to the SANITATION DISTRICT copies of all
memoranda, correspondence, computation and study materials in its files pertaining to
the work described in this Agreement, which is requested in writing by the SANITATION
DISTRICT.
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16. COMPLIANCE
CONSULTANT certifies by the execution of this Agreement that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in
compliance with all federal, state and local directives and executive orders regarding
non-discrimination in employment; and that it agrees to demonstrate positively and
aggressively the principle of equal opportunity in employment.
17. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each party is a person duly authorized to
execute agreements for that party.
18. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration
under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), or similar
organization or entity conducting alternate dispute resolution services.
19. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which it may be entitled.
20. PROGRESS REPORTS
Monthly progress reports shall be submitted for review by the tenth day of the following
month and must include as a minimum: 1) current activities, 2)future activities, 3)
potential items that are not included in the Scope of Work, 4) concerns and possible
delays, 5) percentage of completion, and 6) budget status.
21. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry
and professional standards. If, within the 12-month period following completion of its
services, the SANITATION DISTRICT informs CONSULTANT that any part of the
services fails to meet those standards, CONSULTANT shall, within the time prescribed
by the SANITATION DISTRICT, take all such actions as are necessary to correct or
complete the noted deficiency(ies).
22. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the
SANITATION DISTRICT, which approval shall not be unreasonably withheld), protect
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and hold harmless the SANITATION DISTRICT and all of SANITATION DISTRICT's
officers, directors, employees, CONSULTANT's, and agents (collectively the
"Indemnified Parties"), from and against any and all claims, damages, liabilities, causes
of action, suits, arbitration awards, losses,judgments, fines, penalties, costs and
expenses (including, without limitation, attorneys' fees, disbursements and court costs,
and all other professional, expert or CONSULTANT's fees and costs and the
SANITATION DISTRICT's general and administrative expenses; individually, a "Claim";
collectively, "Claims")which may arise from or are in any manner related, directly or
indirectly, to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this Agreement to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals,
officers, agents, employees, CONSULTANT's suppliers, CONSULTANT,
Subcensultants, subcontractors, and/or anyone employed directly or indirectly by any of
them, regardless of any contributing negligence or strict liability of an Indemnified Party.
Notwithstanding the foregoing, nothing herein shall be construed to require
CONSULTANT to indemnify the Indemnified Parties from any Claim arising solely from:
(A)the active negligence or willful misconduct of the Indemnified Parties; or
(B)a natural disaster or other act of God, such as an earthquake; or
(C)the independent action of a third party who is neither one of the Indemnified Parties
nor the CONSULTANT, nor its principal, officer, agent, employee, nor
CONSULTANT's supplier, CONSULTANT, Subconsultant, subcontractor, nor
anyone employed directly or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from
more than one cause if any such cause taken alone would otherwise result in the
obligation to indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by
CONSULTANT of any of the provisions of this Agreement. Under no circumstances
shall the insurance requirements and limits set forth in this Agreement be construed to
limit CONSULTANT's indemnification obligation or other liability hereunder. The terms
of this Agreement are contractual and the result of negotiation between the parties
hereto. Accordingly, any rule of construction of contracts (including, without limitation,
California Civil Code Section 1654)that ambiguities are to be construed against the
drafting party, shall not be employed in the interpretation of this Agreement.
23. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
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payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In
the event a final judgment, arbitration, award, order, settlement, or other final resolution
expressly determines that the claim did not arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the CONSULTANT, to any extent,
then the DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or
earlier termination of this Agreement until such time as action against the Indemnified
Parties for such matter indemnified hereunder is fully and finally barred by the applicable
statute of limitations.
24. CONSULTANT PERFORMANCE
The CONSULTANT's performance shall be evaluated by the SANITATION DISTRICT.
A copy of the evaluation shall be sent to the CONSULTANT for comment. The
evaluation, together with the comments, shall be retained by the SANITATION
DISTRICT and may be considered in future CONSULTANT selection processes.
25. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, as applicable, all of which may be
amended from time to time.
26. CLOSEOUT
When the SANITATION DISTRICT determines that all Work authorized under the
Agreement is fully complete and that the SANITATION DISTRICT requires no further
work from CONSULTANT, or the Agreement is otherwise terminated or expires in
accordance with the terms of the Agreement, the SANITATION DISTRICT shall give the
Consultant written notice that the Agreement will be closed out. CONSULTANT shall
submit all outstanding billings, work submittals, deliverables, reports or similarly related
documents as required under the Agreement within thirty (30)days of receipt of notice of
Agreement closeout.
Upon receipt of CONSULTANT's submittals, the SANITATION DISTRICT shall
commence a closeout audit of the Agreement and will either:
i. Give the CONSULTANT a final Agreement Acceptance: or
ii. Advise the CONSULTANT in writing of any outstanding item or items which must be
furnished, completed, or corrected at the CONSULTANT's cost.
CONSULTANT shall be required to provide adequate resources to fully support any
administrative closeout efforts identified in this Agreement. Such support must be
provided within the timeframe requested by the SANITATION DISTRICT.
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Notwithstanding the final Agreement Acceptance the CONSULTANT will not be relieved
of its obligations hereunder, nor will the CONSULTANT be relieved of its obligations to
complete any portions of the work, the non-completion of which were not disclosed to
the SANITATION DISTRICT (regardless of whether such nondisclosures were
fraudulent, negligent, or otherwise); and the CONSULTANT shall remain obligated under
all those provisions of the Agreement which expressly or by their nature extend beyond
and survive final Agreement Acceptance.
Any failure by the SANITATION DISTRICT to reject the work or to reject the
CONSULTANT's request for final Agreement Acceptance as set forth above shall not be
deemed to be acceptance of the work by the SANITATION DISTRICT for any purpose
nor imply acceptance of, or agreement with, the CONSULTANT's request for final
Agreement Acceptance.
27. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between the
Parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
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Page 18 of 19
IN WITNESS WHEREOF, this Agreement has been executed in the name of the SANITATION
DISTRICT, by its officers thereunto duly authorized, and CONSULTANT as of the day and year
first above written.
CONSULTANT: COMPANYNAME
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Chair, Board of Directors Date
By
Kelly A. Lore
Clerk of the Board Date
By
Marc Dubois Date
Contracts, Purchasing and Materials
Management Division Manager
Attachments: Attachment "A"—Scope of Work
Attachment "B"—Labor Hour Matrix
Attachment"C"—Conflict of Interest Disclaimer
Attachment"D"—Allowable Direct Costs
Attachment"E"—Fee Proposal Form
Attachment"F"—Professional Design Services Agreement (PDSA)
Attachment"G"—Acknowledgement of PDSA
Attachment"H"— Professional Construction Services Agreement(PCSA)
Attachment"I"—Cost Matrix and Summary
Attachment"J"—Acknowledgement of Addenda Receipt
Attachment"K"—Hourly Rate Schedule for Minor Subconsultants
Attachment"L"—OCSD Safety Standards
NKD:yp
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OPERATIONS COMMITTEE Meng D310 TOBE. Dir.
07/lti06/16 07/27/1Or6
AGENDA REPORT ItemNumber Item Number
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: HEADQUARTERS COMPLEX, SITE AND SECURITY, AND ENTRANCE
REALIGNMENT PROGRAM, PROJECT NO. P1-128
GENERAL MANAGER'S RECOMMENDATION
Approve a Broker Representation Agreement with Cushman & Wakefield to give
exclusive authority to represent the Orange County Sanitation District, at no cost, for the
investigation and potential negotiation to acquire existing office building and/or land for a
new Administration Building in an area near Plant No. 1.
BACKGROUND
In June, 2015, the Board of Directors approved the Headquarters Complex, Site and
Security, and Entrance Realignment Program, Project No. P1-128. At the time, the
project was to consider two alternative locations for the building, one where the existing
Administration Building is located, the other in the southwest corner of Plant No. 1 next
to the Engineering Trailers.
Since then, the City of Fountain Valley has suggested the Orange County Sanitation
District(Sanitation District)consider locating the building instead in the area between Ellis
Avenue and the 405 Freeway between the Euclid Avenue off-ramp and Ward Street.
Locating the new building in this area would save space on the plant site that might be
needed for process facilities in the future. Approximately five acres of land would be
needed for the Administration Building and parking. If the Administration Building is
located across Ellis Avenue, the new Laboratory would be constructed within the north
area of Plant No. 1 after demolition of the existing Administration Building.
In June 2016, the Board of Directors approved agreements for California Environmental
Quality Act (CEQA) assessment services and design services for the project.
RELEVANT STANDARDS
• Maintain collaborative and cooperative relationships with neighboring agencies
• Make compelling cases for investment
• Provide a safe and collegial workplace
Page 1 of 3
PROBLEM
At this point, a well-planned and executed survey of properties in the area is required to
determine ownership, availability, cost of properties, and determine if a willing seller
exists. Sanitation District staff does not have the professional experience, qualifications,
and credentials appropriate to contact, negotiate, and acquire properties of this type.
PROPOSED SOLUTION
To provide the professional real estate services required for this project, staff proposes
to enter into a Broker Representation Agreement. This agreement gives exclusive
authority to Cushman &Wakefield to represent the Sanitation District for the investigation
and potential negotiations to acquire property for an Administration Building in the area
near Plant No. 1. No costs are incurred with this agreement. If a property deal is
negotiated and approved by the Board of Directors, Cushman &Wakefield would receive
commission tied to the transaction at that time.
TIMING CONCERNS
In June 2016, the Sanitation District awarded agreements for the CEQA study and final
design. To consider locating the Administration Building on property north of Ellis Avenue,
the availability of property must be determined before the design can proceed past the
initial conceptual design stage.
Moving forward with the CEQA study, property investigation, and final design
simultaneously will minimize escalated costs, enable the Sanitation District to continue to
progress towards permitted and ADA compliant buildings per agreements with the City of
Fountain Valley, and to minimize the length of time that parking issues exist with the new
front entry alignment which impacts parking for staff and visitors.
RAMIFICATIONS OF NOT TAKING ACTION
Withoutthe information on available properties, it will be impossible to accurately evaluate
the alternative locating the Administration Building north of Ellis Avenue. This would
either delay the project, or consideration of this alternative would have to be dropped.
PRIOR COMMITTEE/BOARD ACTIONS
June 2016 — Approved agreements for the CEQA study and Architectural and
Engineering design services.
October 2015 — Designated the southwest corner of Plant No. 1 as the location for the
Headquarters Complex as the preferred alternative for CEQA evaluation under the
Headquarters Complex, Site and Security, and Entrance Realignment Program, Project
No. P1-128.
Page 2 of 3
June 2015 — Established new project and budget for Headquarters Complex, Site and
Security, and Entrance Realignment Program, Project No. P1-128.
ADDITIONAL INFORMATION
Staff interviewed three real estate brokerage firms for assistance:
Cushman and Wakefield of California, Inc.
CBRE
Coldwell Banker Commercial
Cushman and Wakefield was selected as the preferred firm based on interview questions
related to approach, experience with public agencies, experience within Orange County
and specifically Fountain Valley, relationships with property owners in the desired area,
compensation structure, and experience and abilities of the key resources with the firm.
CEQA
CEQA work was awarded to LSA Associates, Inc. in June 2016. An EIR will be prepared.
FINANCIAL CONSIDERATIONS
This agreement does not require any commitment of funds. The brokerage firm would be
compensated with a resulting real estate transaction should this occur, in accordance with
standard brokerage commission fees.
ATTACHMENT
The following attachment(s) may be viewed on-line at the OOSD website (wwwocsd.corn with the
complete agenda package:
Broker Representation Agreement
WS:dm:gc
Page 3 of 3
BROKER REPRESENTATION AGREEMENT
This Representation Agreement will exclusively authorize Cushman & Wakefield
hereinafter "Broker" to represent the Orange County Sanitation District ("OCSD") in
connection with the potential acquisition/negotiation for the purchase/lease of land or
existing buildings in the area surrounding its existing offices/warehouses/maintenance
shops and sanitation facilities which are located on Ellis Avenue in the City of Fountain
Valley, California, for the purpose of relocating administrative offices only.
The Broker will use its best efforts to secure the most favorable location, property
and market terms for OCSD's consideration. Within that process, Broker will solicit the
cooperation of all appropriate commercial real estate brokers, landlord/owners, developers
and city and state agencies; while OCSD agrees to refer to Broker all inquiries or offerings
received directly. OCSD shall have no liability or obligation to pay Broker any
commission or other fee in connection with the services provided pursuant to this
representation agreement. Broker shall look solely to the seller or landlord, as applicable,
for its brokerage commission or fee in the event that a successful transaction is
consummated(which consummation shall be in the sole and absolute discretion of OCSD),
unless otherwise authorized by OCSD at the time of negotiation of the purchase in which
case the Broker's commission shall not exceed 3 percent of the total purchase price for an
entire transaction exceeding $10 million.
Unless sooner terminated or extended by OCSD, this Representation Agreement
will remain in effect until December 31, 2017, at which time it will expire. OCSD shall
have the absolute right, in its sole discretion, to terminate this Representation Agreement
without liability or obligation at any time upon written notice to Broker.
AGREED AND ACCEPTED: BROKER:
Name: Orange County Sanitation Name: Cushman & Wakefield
District
Address: 10844 Ellis Avenue Address:
Fountain Valley, CA 92708
By: By:
John Nielsen, Board Chair
Name Printed:
Attest:
Kelly Lore, Clerk of the Board Its:
Date: Date:
1164953.1
OPERATIONS COMMITTEE Meeting Date To Bd.of Dir.
07/06,16 —
AGENDA REPORT Item Number Item Number
z -
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: ENERGY SUPPLY AND DEMAND
GENERAL MANAGER'S RECOMMENDATION
Information Only.
BACKGROUND
Each month, staff provides an informational presentation on topics of interest to the Board
of Directors. This month's topic is an overview of the Orange County Sanitation District's
Energy Supply and Demand.
RELEVANT STANDARDS
Ensure that the public's money is wisely spent.
ATTACHMENT
N/A
RT:gc
Page 1 of 1
ORANGE COUNTY SANITATION DISTRICT
Agenda
Terminology Glossary
Glossary of Terms and Abbreviations
AQMD Air Quality Management District
ASCE American Society of Civil Engineers
BOD Biochemical Oxygen Demand
CARB California Air Resources Board
CASA California Association of Sanitation Agencies
CCTV Closed Circuit Television
CEQA California Environmental Quality Act
CIP Capital Improvement Program
CRWQCB California Regional Water Quality Control Board
CWA Clean Water Act
CWEA California Water Environment Association
EIR Environmental Impact Report
EMT Executive Management Team
EPA U.S. Environmental Protection Agency
FOG Fats, Oils, and Grease
gpd Gallons per day
GWR System Groundwater Replenishment System (also called GWRS)
ICS Incident Command System
IERP Integrated Emergency Control Plan
LOS Level of Service
MGD Million gallons per day
NACWA National Association of Clean Water Agencies
NPDES National Pollutant Discharge Elimination System
NWRI National Water Research Institute
O&M Operations and Maintenance
OCCOG Orange County Council of Governments
OCHCA Orange County Health Care Agency
OCSD Orange County Sanitation District
OCWD Orange County Water District
GOBS Ocean Outfall Booster Station
OSHA Occupational Safety and Health Administration
PCSA Professional Consultant Services Agreement
POTW Publicly Owned Treatment Works
ppm Parts per million
PSA Professional Services Agreement
RFP Request For Proposal
Glossary of Terms and Abbreviations
RWQCB Regional Water Quality Control Board
SARFPA Santa Ana River Flood Protection Agency
SARI Santa Ana River Inceptor
SARWQCB Santa Ana Regional Water Quality Control Board
SAW PA Santa Ana Watershed Project Authority
SCADA Supervisory Control and Data Acquisition system
SCAP Southern California Alliance of Publicly Owned Treatment Works
SCAQMD South Coast Air Quality Management District
SOCWA South Orange County Wastewater Authority
SSMP Sanitary Sewer Management Plan
SSO Sanitary Sewer Overflow
SWRCB State Water Resources Control Board
TDS Total Dissolved Solids
TMDL Total Maximum Daily Load
TSS Total Suspended Solids
WDR Waste Discharge Requirements
WEF Water Environment Federation
WERF Water Environment Research Foundation
Activated-sludge process — A secondary biological wastewater treatment process where bacteria
reproduce at a high rate with the introduction of excess air or oxygen, and consume dissolved
nutrients in the wastewater.
Benthos — The community of organisms, such as sea stars, worms and shrimp, which live on, in, or
near the seabed, also know as the benthic zone.
Biochemical Oxygen Demand (BOD)—The amount of oxygen used when organic matter undergoes
decomposition by microorganisms. Testing for BOD is done to assess the amount of organic matter in
water.
Biosolids — Biosolids are nutrient rich organic and highly treated solid materials produced by the
wastewater treatment process. This high-quality product can be recycled as a soil amendment on
farm land or further processed as an earth-like product for commercial and home gardens to improve
and maintain fertile soil and stimulate plant growth.
Capital Improvement Program (CIP) — Projects for repair, rehabilitation, and replacement of assets.
Also includes treatment improvements, additional capacity, and projects for the support facilities.
Coliform bacteria—A group of bacteria found in the intestines of humans and other animals, but also
occasionally found elsewhere used as indicators of sewage pollution. E. coli are the most common
bacteria in wastewater.
Collections system — In wastewater, it is the system of typically underground pipes that receive and
convey sanitary wastewater or storm water.
Glossary of Terms and Abbreviations
Certificate of Participation (COP) -A type of financing where an investor purchases a share of the
lease revenues of a program rather than the bond being secured by those revenues.
Contaminants of Potential Concern (CPC) - Pharmaceuticals, hormones, and other organic
wastewater contaminants.
Dilution to Threshold (D!f) - the dilution at which the majority of the people detect the odor
becomes the D(f for that air sample.
Greenhouse gases - In the order of relative abundance water vapor, carbon dioxide, methane,
nitrous oxide, and ozone gases that are considered the cause of global warming ("greenhouse
effect").
Groundwater Replenishment (GWR) System - A joint water reclamation project that proactively
responds to Southern California's current and future water needs. This joint project between the
Orange County Water District and the Orange County Sanitation District provides 70 million gallons a
day of drinking quality water to replenish the local groundwater supply.
Levels of Service (LOS)-Goals to support environmental and public expectations for performance.
NOMA- N-Nitrosodimethylamine is an N-nitrosoamine suspected cancer-causing agent. It has been
found in the Groundwater Replenishment System process and is eliminated using hydrogen peroxide
with extra ultra-violet treatment.
National Biosolids Partnership (NBP) - An alliance of the National Association of Clean Water
Agencies (NACWA) and Water Environment Federation (WEF), with advisory support from the U.S.
Environmental Protection Agency (EPA). NBP is committed to developing and advancing
environmentally sound and sustainable biosolids management practices that go beyond regulatory
compliance and promote public participation in order to enhance the credibility of local agency
biosolids programs and improved communications that lead to public acceptance.
Plume-A visible or measurable concentration of discharge from a stationary source or fixed facility.
Publicly-owned Treatment Works (POTW)- Municipal wastewater treatment plant.
Santa Ana River Interceptor (SARI) Line - A regional brine line designed to convey 30 million
gallons per day (MGD) of non-reclaimable wastewater from the upper Santa Ana River basin to the
ocean for disposal, after treatment.
Sanitary sewer - Separate sewer systems specifically for the carrying of domestic and industrial
wastewater. Combined sewers carry both wastewater and urban run-off.
South Coast Air Quality Management District (SCAQMD) - Regional regulatory agency that
develops plans and regulations designed to achieve public health standards by reducing emissions
from business and industry.
Secondary treatment - Biological wastewater treatment, particularly the activated-sludge process,
where bacteria and other microorganisms consume dissolved nutrients in wastewater.
Sludge - Untreated solid material created by the treatment of wastewater.
Total suspended solids (TSS)-The amount of solids floating and in suspension in wastewater.
Glossary of Terms and Abbreviations
Trickling filter — A biological secondary treatment process in which bacteria and other
microorganisms, growing as slime on the surface of rocks or plastic media, consume nutrients in
wastewater as it trickles over them.
Urban runoff — Water from city streets and domestic properties that carry pollutants into the storm
drains, rivers, lakes, and oceans.
Wastewater—Any water that enters the sanitary sewer.
Watershed —A land area from which water drains to a particular water body. OCSD's service area is
in the Santa Ana River Watershed.