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HomeMy WebLinkAboutCD Preparation of a Water Supply Assessment (Northgate Redevelopment Project)MMWD Misc. Agreement — XXXX THREE-PARTYAGREEMENT BETWEEN THE CITY OF SAN RAFAEL, THE MARIN MUNICIPAL WATER DISTRICT, AND MERLONE GEIER MANAGEMENT, LLC FOR PREPARATION OF A WATER SUPPLY ASSESSMENT FOR THE NORTHGATE REDEVELOPMENT PROJECT THIS HR E -PARTY AGREEMENT ("AGREEMENT") is made and entered into this OV -day of 2022, by and between the CITY OF SAN RAFAEL, hereinafter referred to as "CITY", ,nONE GEIER MANAGEMENT, LLC, hereinafter referred to as "APPLICANT", and the MARIN MUNICIPAL WATER DISTRICT, hereinafter referred to as "MMWD", all located in the State of California, collectively the "PARTIES"; For good and valuable consideration, the PARTIES agree as follows: SECTION 1: RECITALS. A. The APPLICANT submitted a project application to the CITY on March 10, 2021 for a Rezone to the Planned Development (PD) zone, a Use Permit, an Environmental and Design Review Permit, and a Tentative Map to allow the comprehensive redevelopment of the existing Mall into a new, phased mixed-use development with retail and approximately 1,443 residences on a 44.76 -acre site. APNs: 175-060-12, -40., -59, -61, - 66 &-67; General Commercial (GC) District; Merlone Geier Management, owner/applicant; File Nos: ZC21-001, UP21-007, ED21-024, TS21-002, IS21-002 & DA2 1 -00(hereinafter referred to as the "PROJECT"). B. The CITY, as lead agency under the California Environmental Quality Act, held a scoping meeting on January 11, 2022 in connection with its Notice of Preparation of an Environmental Impact Report (EIR) for the PROJECT. C. The CITY has determined that, pursuant to California Water Code sections 10910 and 10912, that the PROJECT as proposed requires a WATER SUPPLY ASSESSMENT, hereinafter referred to as the "WSA'. D. The CITY, APPLICANT and MMWD wish to enter into this AGREEMENT to clarify the allocation of costs and responsibilities associated with the preparation of the WSA for the PROJECT. SECTION 2: PROJECT COORDINATION A. All notices and other communications required or permitted to be given under this AGREEMENT shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid; addressed to the parties named in this Section. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page I To: MMWD Crystal Yezman Director of Engineering Marin Municipal Water. District 220 Nellen Avenue Corte Madera, CA 94925 To: APPLICANT David Geiser Merlone Geier Management, LLC 425 California Street, Tenth Floor San Francisco, CA 94104 MA XXXX To: CITY Leslie Mendez Planning Manager City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 B. MMWD. The Director of Engineering shall be the representative of MMWD for all purposes under this AGREEMENT. Crystal Yezman is hereby designated as the Project Director for MMWD. Crystal Yezman shall be responsible for all aspects of the progress and execution of this AGREEMENT on behalf of MMWD. C. CITY. The Planning Director shall be the representative of CITY for all purposes under this AGREEMENT. Leslie Mendez, the Planning Manager, is hereby Aesiguated as the Project Director for CITY. CITY's Project Director shall be responsible for all aspects of the progress and execution of this AGREEMENT on behalf of CITY. D. APPLICANT. Stephen Logan shall be the representative of the APPLICANT for all purposes under this AGREEMENT. Stephen Logan is hereby designated as the Project Director for the APPLICANT. Stephen Logan shall be responsible for all aspects of the progress and execution of this AGREEMENT on behalf of the APPLICANT. E. Either Parry may change its designated representative by providing written notice of the same to the other Party. SECTION 3: SCOPE OF AGREEMENT A. The PARTIES hereby acknowledge and agree that the sole purpose of this AGREEMENT is to set forth the PARTIES' responsibilities regarding the preparation of the Project WSA and to set forth the obligations of APPLICANT to MMWD for its costs associated with the preparation of the PROJECT WSA. B. The PARTIES agree that the services needed for the preparation of the PROJECT WSA include the tasks set forth below: 1. Preparation of a professional services agreement and scope of work for the preparation of the PROJECT WSA. The PARTIES hereby agree that the scope of work attached to this AGREEMENT at Attachment A generally contains the services to be provided in conjunction with this requirement. Notwithstanding, MMWD may revise the proposed scope of work, as Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 2 MA-XXXX MMWD may determine necessary and appropriate in its sole and absolute discretion. 2. Project management and oversight of the PROJECT WSA preparation, including review and payment of invoices under the professional services agreement; 3. Review of the PROJECT WSA and presentation to the MMWD Board of Directors for consideration of approval. The PARTIES hereby agree that nothing herein shall be deemed to predetermine the exercise of discretion nor any actions of the MMWD Board of Directors as pertains to the PROJECT WSA. C. The PARTIES agree and understand that as part of the PROJECT WSA there are various best practices and guidelines for preparation of a WSA that have associated costs, including, but not limited to, analysis of historical dry periods, water supply availability, Projected demands, existing water entitlements, and projected climate change conditions. All of this work is appropriately included in the proposed scope of work for preparation of the PROJECT WSA. SECTION 4: DUTIES OF CITY A. CITY or its representative shall be responsible for communicating with MMWD regarding the ongoing development of the PROJECT WSA and for communicating the status of work to APPLICANT. CITY shall provide MMWD updates and information regarding the PROJECT needed to facilitate the preparation of the PROJECT WSA on a weekly or an "as needed" basis. B. CITY shall be solely responsible for preparation of the environmental review and analysis necessary for the CITY's governing boards to consider and take action on the PROJECT, including the incorporation of the PROJECT WSA into the environmental analysis for the PROJECT and any conditions, modifications, denials or approvals for the PROJECT. SECTION 5: DUTIES OF MMWD A. Execution of this AGREEMENT by all parties along with payment of the required deposit amount by APPLICANT pursuant to section 6(D) below shall constitute written notification by the CITY that a WSA is requested per Water Code section 10910 (g) (1). MMWD will endeavor to complete the PROJECT WSA within the statutorily required timeframes, including any request for an extension of time. B. MMWD shall hire, manage and oversee all of the work of consultant, and any subconsultant, as necessary and appropriate for the preparation of the PROJECT WSA. SECTION 6: DUTIES OF APPLICANT Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 3 MA-XXXX A. APPLICANT shall timely, accurately and fully respond to any requests for information regarding the PROJECT in order to facilitate MMWD's work on the PROJECT WSA. B. APPLICANT shall reimburse MMWD for the entire cost of MMWD's consultant for work performed in the development and preparation of the PROJECT WSA, including but not limited to, any extra work or amendment to the proposed scope of work at Attachment A that MMWD reasonably determines necessary to complete the PROJECT WSA. C. APPLICANT shall reimburse MMWD for MMWD staff time spent in the development of the PROJECT WSA, which shall be reasonably documented by MMWD staff and invoiced to APPLICANT at the fully benefitted rate incurred by MMWD. These costs shall include work of the General Counsel's Office and any outside legal fees incurred by MMWD in preparation of the PROJECT WSA, all of which will be reasonably documented by MMWD and invoiced to APPLICANT. D. APPLICANT will, in conjunction with its execution of the AGREEMENT, remit a deposit in the amount of $50,000 to MMWD, which MMWD shall hold on account for the work to be performed hereunder. MMWD shall, upon invoice to APPLICANT for costs incurred in the development and preparation of the PROJECT WSA as herein set forth, have the right to draw funds from the deposit amount to cover said invoiced amounts. APPLICANT hereby understands and agrees,that the $50,000 is an estimate only and the costs incurred by MMWD may exceed such amount. In such case, APPLICANT shall, upon written request by MMWD, augment the deposit amount to cover the additionally anticipated costs. In the event that the costs incurred by MMWD are less than the $50,000 deposit amount, MMWD shall promptly refund any remaining amounts to APPLICANT following the final preparation and Board consideration of the PROJECT WSA. E. APPLICANT shall defend, indemnify and hold harmless MMWD and CITY and their respective Council or Board members, officers, agents and employees (each an "Indemnified Party" and collectively "Indemnified Parties") from and against any and all claims, demands, causes of action, damages, costs, expenses (including legal, expert witness, and consulting fees and costs, any judgment or other award of attorneys' fees or costs and any costs of record preparation), losses, or liabilities, in law or equity, or alleged by any third parties arising directly out of, or resulting directly from, any and all litigation, lawsuits, claims, or causes of action against MMWD's or the CITY's for work related to the PROJECT WSA or any challenges to the validity of the PROJECT WSA or any related actions. In the event any action or proceeding is brought against an. Indemnified Party by reason of a claim for which APPLICANT has an obligation hereunder to the indemnified Party, and upon written notice from such Indemnified Party, APPLICANT shall be responsible, at its sole cost and expense, to defend any such action, with legal counsel acceptable to the Indemnified Parties and to pay any liabilities incurred by MMWD or CITY arising out of any such claims. The settlement of any action challenging the validity of the PROJECT WSA shall require the prior approval of MMWD's Board of Directors. Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 4 MA-XXXX SECTION 7: MISCELLANEOUS TERMS A. Term of AGREEMENT: This AGREEMENT shall terminate upon CITY's acceptance of the completed PROJECT WSA, provided that APPLICANT reimbursement and indemnification obligations shall continue. B. Termination: This AGREEMENT may be terminated, with cause, by either Party, upon thirty (30) calendar days advance written notice to the other Party following the notified Party's failure to cure or correct the cause of termination notice, within thirty (30) calendar days receipt of that notice. Any work completed by MMWD as of the date of termination shall still be subject to reimbursement by APPLICANT pursuant to the terms of this AGREEMENT. C. Amendment and Mer er: This AGREEMENT contains all the terms and conditions made between the PARTIES to this AGREEMENT and may only be modified by written AGREEMENT signed by all the PARTIES to this AGREEMENT or their respective successors -in -interest. This writing is intended both as a final expression of the AGREEMENT between the parties hereto with respect to the included terms and as a complete and exclusive statement of the terms of this AGREEMENT. No modification of this AGREEMENT shall be effective unless and until such modification is evidenced by a writing signed by both PARTIES. D. Agreement Binding: The terms and provisions of this AGREEMENT shall extend to and be binding upon and inure to the benefit of the heirs, executors, and administrators or to any approved successor, as well as to any assignee or legal successor to any PARTIES to this AGREEMENT. Any terms of this AGREEMENT that by their nature extend beyond the term (or tennination) of this AGREEMENT shall remain in effect until fulfilled and shall apply to both PARTIES' respective successors and assigns. E. Cooperation: The PARTIES pledge cooperation during the tern of this AGREEMENT. F. No Third -Party Beneficiaries: Nothing contained in this AGREEMENT shall be construed to create, and the PARTIES do not intend to create, any rights in third parties. G. Severability: If any term, covenant or condition of this AGREEMENT or the application thereof to any person or circumstance is determined to be invalid or unenforceable, the remainder of this AGREEMENT or the application of such term, covenants or conditions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant and condition of this AGREEMENT shall be valid and be enforced to the fullest extent permitted by law. H. No Waiver: The waiver by either of the PARTIES of any default under this AGREEMENT shall not operate as a waiver of any subsequent breach of the same or any other provision of this AGREEMENT. Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 5 I. Time is of the Essence: Time is of the essence with respect to the performance of every provision of this AGREEMENT for which time or performance is a factor. PARTIES agree to adhere to all deadlines stated in the approved project specifications. J. Mediation: Any dispute or claim in law or equity between the PARTIES arising out of this AGREEMENT, if not resolved by informal negotiation between the PARTIES, shall be mediated. The mediation process shall continue until the case is resolved or until such time as the mediator makes a finding that there is no possibility of resolution. If mediation is unsuccessful, the PARTIES may avail themselves of any other remedies. K. Applicable Law: This AGREEMENT shall be construed and enforced in accordance with the laws of the State of California. L. No Presumption Regarding Drafter: The PARTIES acknowledge and agree that the terms and provisions of this AGREEMENT have been negotiated and discussed between the PARTIES and their attorneys, and this AGREEMENT reflects their mutual AGREEMENT regarding the same. Because of the nature of the negotiations, aild discussions it would be inappropriate to deem any Party to be the drafter of this AGREEMENT. Therefore, no presumption for or against validity, or as to any interpretation hereof, based upon the identity of the drafter, shall be applicable in interpreting or enforcing this AGREEMENT. M. Assistance of Counsel: Each Party to this AGREEMENT warrants as follows: a. That each Party had the assistance of counsel in the negotiation for, and the execution of; this AGREEMENT and all related documents; and b. That each Party has lawfully authorized the execution of this AGREEMENT. N. Section Headings: The section headings contained in this AGREEMENT are for convenience and identification only and shall not be deemed to limit or define the contents of the sections to which they relate. O. Counterparts and Electronic Signatures: This AGREEMENT may be executed by electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 6 ►iTI �:�:ii� IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT by their duly authorized officers as of the day and year first above written. CITY OF SAN RAFAEL ATTEST: lf�Lindsay Lara, City Clerk APPROVED AS TO FORM: By: -r Robert Epst in, City Attorney MERLONE GEIER MANAGEMENT, LLC av Geiser, Managing Director APPROVED AS TO FORM: Bv: General Counsel MARIN MUNICIPAL WATER DISTRICT Ben Horenstein, General Manager ATTEST: Bv: Board Secretary APPROVED AS TO FORM: BY: Molly MacLean, General Counsel Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 7 ui1_6`:�:i:1 ATTACHMENT A SCOPE OF SERVICES AND FEE SCHEDULE For the purposes of this WSA, consultant will rely on information included in MMWD's 2020 Urban Water Management Plan (UWMP) to assess the MMWD's demands and supply reliability, as well as project- and District -specific information that will be provided in response to a request for information (RFI) submitted by consultant. Additional details on the anticipated scope of work are provided below. Task 1 Prepare Draft and Final WSA Pursuant to California Water Code (CWC) §10910, consultant will prepare a draft WSA for MMWD to review that will summarize/include the following: ■ The requirements of a WSA as defined in CWC §10910; ■ A description of the Proposed Project based on information provided by the project proponent via the City of San Rafael (City) and the MMWD; ■ The projected future water demands of the Proposed Project (based on land use details and water demand factors utilized in the 2020 UWMP) and the incremental demands of the Proposed Project (i.e., after accounting for any existing water use at the project site); ■ An assessment as to whether the Proposed Project can be considered to be included in the 2020 UWMP; ■ The current and projected future water demands for MMWD (based on the 2020 UWMP, noting that these demand projections do not explicitly consider the recently -approved Association of Bay Area Government [ABAG] Regional Housing Needs Allocation [RHNA] and anticipating forthcoming amendments to local Cities' General Plans); ■ The current and future water supplies for MMWD per the 2020 UWMP with. specific consideration of the "extreme drought" scenario used to project future dry year shortfalls and the current strategic planning efforts that MMWD has initiated related to water conservation and water supply resiliency; and ■ A comparison of the projected water supplies and demands for MMWD through the year 2045 to determine whether MMWD has sufficient water supplies during current and projected future normal and dry years, including under the "extreme drought" scenario. This estimate will reflect the recent changes to the UWMP regulations, effective January 2019, that require UWMPs to assess drought periods lasting five years' and will discuss MMWD's on-going water supply and resiliency planning efforts. ■ A draft WSA will be sent to MMWD for review and comment. Consultant will then incorporate MMWD's comments and prepare a revised draft WSA for review by the City. Consultant will then incorporate received comments into a final WSA document, which will be provided to MMWD in electronic (PDF) format. For scoping and budgeting purposes, consultant has assumed a minimal level of revision will be necessary to address comments and prepare a final WSA. Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 8 MA-XXXX i Noting that the corresponding WSA regulations have not been updated, it is most conservative to include a five- year assessment of supply reliability in the WSA, in addition to the three-year multi -dry year period. Task 2 — Project Coordination and Meetings This task will cover routine project management tasks and client communications. As part of this task, consultant will prepare and submit an RFI to the District, City and the project proponent. Coordination efforts are also anticipated to include telephone conference calls and up to two (2) web conference meetings (e.g., a project "kick off" meeting, and a meeting to discuss the draft WSA). Consultant will be available to participate in meetings with MMWD and will work with MMWD to ensure that the WSA appropriately characterizes their projected demands and supply reliability, given the currently available data and information. PROJECT SCHEDULE Consultant is prepared to start work on the above Scope of Work immediately upon authorization to proceed. It is anticipated that the work effort will take up to eight weeks to complete, assuming timely provisions of data from MMWD and others, and timely review of the WSA drafts. Consultant will inform MMWD of any issues that arise that may affect the schedule for completion or impact the anticipated level of effort. COMPENSATION FOR CONSULTING SERVICES Inasmuch as the exact level of effort required to complete the above Scope of Work cannot be known precisely, consultant proposes to perform the above services on a lump sum basis. A breakdown of the budget is provided in Table 1 below. It is understood that at times the receipt of data and key information may be necessarily delayed, but it is noted that significant delays or multiple additional rounds of document revision or meetings are beyond the proposed scope of work, and would result in additional charges. In the event that such out of scope conditions occur, consultant will notify MMWD of the additional anticipated level of effort, and any additional work will be billed on a time and materials expense reimbursement basis in accordance with our current Schedule of Charges, dated 1 January 2022, attached. Table 1. Proposed Project Budget TASK Cost Task 1— Prepare Draft and Final WSA Develop Proposed Project Demands and MMWD Demands $2,000 Evaluate the MM WD's Water Supplies $.5,000 Compare Projected Supplies with Projected Demands $5,000 Prepare Draft and Final WSA $15,000 Task 2 — Project Coordination and Meetings $3;000 TOTAL (Lump Sum); $30,000 Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 9 MA-XXXX TERMS AND CONDITIONS Other than the scope of work, budget, and schedule herein, the work will be performed in accordance with the MMWD's Standard Professional Services Agreement. SCHEDULE OF CHARGES Hourly Senior II, Engineer -Scientist Rate Officer and Chief Engineer -Scientist 307 Principal Engineer -Scientist 296 Supervising I, Engineer -Scientist 286 Supervising II, Engineer -Scientist 276 Senior I, Engineer -Scientist 265 Senior II, Engineer -Scientist 255 Associate I, Engineer -Scientist 244 Associate Ii, Engineer -Scientist 230 Engineer -Scientist, Grade 1 214 Engineer -Scientist, Grade 2 202 Engineer -Scientist, Grade 3 185 Engineer -Scientist, Grade 4 165 Engineer -Scientist, Grade 5 145 Engineer -Scientist, Grade 6 128 Project Assistant 130 Technician 116 Senior GIS / Database Analyst 150 CADD Operator/ GIS Analyst 133 Senior Administrative Assistant 147 Administrative Assistant 115 Secretary 96 Direct Expenses Reimbursement for direct expenses, as listed below, incurred in connection with the work will be at cost plus fifteen percent (15%) for items such as: a. Maps, photographs, reproductions, printing, equipment rental, and special supplies related to the work. b. Consultants, soils engineers, surveyors, drillers, laboratories, and contractors. c. Rented vehicles, local public transportation and taxis, travel, and subsistence. d. Special fees, insurance, permits, and licenses applicable to the work. e. Outside computer processing, computation, and proprietary programs purchased for the work. A Communication charge for e-mail access, web conferencing, cellphone calls, messaging and data access, file sharing, local and long distance telephone calls and conferences, facsimile transmittals, standard delivery U.S. postage, and incidental in-house copying will be charged at a rate of 4% of labor charges. Large volume copying of project documents, e.g., bound reports for distribution or project -specific reference files, will be charged as a project expense as described above. Reimbursement for company-owned automobiles, except trucks and four-wheel drive vehicles, used in connection with the work will be at the rate of sixty cents ($0.60) per mile. The rate for company-owned trucks and four-wheel drive vehicles will be seventy-five cents ($0.75) per mile. There will be an additional charge of thirty dollars ($30.00) perday for vehicles used for field work. Reimbursement for use of personal vehicles will be at the federally allowed rate plus fifteen percent (15%). CADD Computer time will be charged at twenty dollars ($20.00) per hour. In-house material and equipment charges will be in accordance with the current rate schedule or special quotation. Excise taxes, if any, will be added as a direct expense. Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page 10 MA-XXXX Rate for professional staff for legal proceedings or as expert witnesses will be at a rate of one and. one. -half times the Hourly Rates specified above. Reimbursement Agreement Between MMWD, City of San Rafael, and Merlone Geier Management, LLC. Page I 1 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Project Manager: Contractor Name: Community Development Tricia Stevens MMWD; Melone Geier Contractor's Contact: Crystal Yezman ❑ FPPC: Check if Contractor/Consultant must file Form 700 Extension: Contact's Email: cyezman@marinwater.org] Step RESPONSIBLE DESCRIPTION DEPARTMENT 1 Project Manager a. Email PINS Introductory Notice to Contractor COMPLETED DATE REVIEWER Check/Initial JCONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager b. Email contract (in Word) and attachments to City 5/13/2022 Attorney with printed copy of this routing form Attorney c/o Laraine.Gittens cit ofsanrafael.or Review and approve hard copy of signed c. Check with City Attorney re Insurance 8 City Attorney Review and approve insurance in PINS, and bonds Requirements for extra small or large projects (for Public Works Contracts) 2 I City Attorney 3 Department Director 4 Project Manager a. Review, revise, and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor Approval of final agreement form to send to contractor Forward three (3) originals of final agreement to contractor for their signature 5 Project Manager When necessary, contractor -signed agreement agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed $75,000; and for Public Works Contracts that exceed $175,000 9 City Manager/ Mayor 10 City Clerk 5/20/2022 Per email from Lisa Goldfein 7/8/2022 Contractor MerloneGeier signed on 6/222022 0 N/A E LG 0 ® _AG C A Or 7/8/2022 MG I-w/vz- (�C, NIA - Agreement executed by City Council authorized official Attest signatures, retains original agreement and forwards copies to Project Manager o ZL Date of City Council approval J PRINT JCONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 9 City Manager/ Mayor 10 City Clerk 5/20/2022 Per email from Lisa Goldfein 7/8/2022 Contractor MerloneGeier signed on 6/222022 0 N/A E LG 0 ® _AG C A Or 7/8/2022 MG I-w/vz- (�C, NIA - Agreement executed by City Council authorized official Attest signatures, retains original agreement and forwards copies to Project Manager o ZL