HomeMy WebLinkAboutResolution - 2015-R0104 - Professional Services Agreement: Environmental Services Agency - 03/26/2015No. 2015-RO104
:h 26, 2015
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RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Professional Services
Agreement, Contract No. 12227, with Environmental Services Agency (ESA) for
professional asbestos and mold consulting services related to renovations to the Citizens
Tower, said agreement to be for $252,430.00 with a provision for additional charges if the
initial scope of work is exceeded, as set forth in the attached Professional Services
Agreement, which is incorporated herein.
Passed by the City Council this March 26, 2015.
ATTEST:
Reb cca Garza, City Secreta
APPROVED AS TO CONTENT:
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Mark arwoo(f, AssistanIf City Manager
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instructions on ESA's most recent invoice. The Remittance Advice document shall be mailed with the
check to the address.
ARTICLE III. TERMINATION
A. General. City may terminate this Agreement, for any reason or convenience, upon thirty (30)
days written notice to ESA. In the event this Agreement is so terminated, the City shall only pay ESA
for services actually performed by ESA up to the date ESA is deemed to have received notice of
termination as provided herein.
B. Termination and Remedies. In the event ESA breaches any term and/or provision of this
Agreement the City shall be entitled to exercise any right or remedy available to it by this Agreement, at
law or equity, including without limitation, termination of this Agreement and assertion of action for
damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent
or subsequent exercise of any other right or remedy and all other rights and remedies shall be
cumulative.
ARTICLE IV. NON -ARBITRATION
A. The City reserves the right to exercise any right or remedy available to it by law, contract
equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court
of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to
exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative
and not exclusive, and may be exercised concurrently. To the extent of any conflict between this
provision and another provision in, or related to, this document, this provision shall control.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
A. Existence. ESA is a Limited Liability Company (L.L.C.) duly organized, validly existing, and in
good standing under the laws of the State of Texas and is qualified to carry on its business in the State
of Texas.
B. Authorization. Execution, delivery, and performance of this Agreement and the activities
contemplated hereby have been duly and validly authorized by all the requisite Limited Liability
Company (L.L.C.) action on the part of ESA. This Agreement constitutes legal, valid, and binding
obligations of the ESA and is enforceable in accordance with the terms thereof.
C. Professional. ESA maintains a professional staff and employs, as needed, other qualified
specialists experienced in providing the Services, and are familiar with all laws, rules, and regulations,
both state and federal, including, without limitation the applicable laws, regarding the activities
contemplated hereby.
D. Performance. ESA will and shall conduct all activities contemplated by this Agreement in
accordance with the standard of care, skill and diligence normally provided by a professional person in
performance of similar professional consulting services, and comply with all applicable laws, rules, and
regulations, both state and federal, relating to professional consulting services, as contemplated hereby.
Page 2 of 8
ESA Agreement
E. Use of Copyrighted Material. ESA warrants that any materials provided by ESA for use by City
pursuant to this Agreement shall not contain any proprietary material owned by any other party that is
protected under the Copyright Act or any other law, statute, rule, order, regulation or ordinance relating
to the use or reproduction of materials. ESA shall be solely responsible for ensuring that any materials
provided by ESA pursuant to this Agreement satisfy this requirement and ESA agrees to indemnify and
hold City harmless from all liability or loss caused to City or by to which City is exposed on account of
ESA's failure to perform this duty.
F. ESA warrants that it shall perform the Project in accordance with the standards of care and
diligence normally practiced by recognized consulting firms in performing services of a similar nature.
If, during the six month period following the earlier of completion or termination of the Project it is
shown there is an error in the Project caused solely by ESA's failure to meet such standards, and City
has promptly notified ESA in writing of any such error within that period, ESA shall perform, at ESA's
cost, such corrective consulting services within the original Scope of Services as may be necessary to
remedy such error.
ARTICLE VI. SCOPE OF WORK
ESA shall accomplish the following:
Professional Consulting Services related to the consulting services for Citizens Tower, as defined in
Exhibit "A".
ARTICLE VII. INDEPENDENT CONSULTANT STATUS
ESA and City agree that ESA shall perform the duties under this Agreement as an independent
consultant and shall be considered as independent consultant under this Agreement and/or in its
activities hereunder for all purposes. ESA has the sole discretion to determine the manner in which the
services are to be performed. During the performance of the Project under this Agreement, ESA and
ESA's employees and/or sub -consultants, will not be considered, for any purpose, employees or agents
of the City within the meaning or the application of any federal, state or local law or regulation,
including without limitation, laws, rules or regulations regarding or related to unemployment insurance,
old age benefits, workers compensation, labor, personal injury or taxes of any kind.
ARTICLE VIII. INSURANCE
ESA shall procure and carry, at its sole cost and expense through the life of this Agreement,
insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an
insurance company authorized to transact business in the state of Texas, covering all aspects and risks
of loss of all operations in connection with this Agreement, including without limitation, the indemnity
obligations set forth herein as described in Exhibit B.
ESA shall obtain and maintain in full force and effect during the term of this Agreement, and
shall cause each approved subcontractor or sub -consultant of ESA to obtain and maintain in full force
and effect during the term of this Agreement, commercial general liability, professional liability and
automobile liability coverage for non -owned and hired vehicles with insurance carriers admitted to do
business in the state of Texas. Except for Professional Liability, the policies will be written on an
occurrence basis, subject to the following minimum limits of liability:
Page 3 of 8
ESA Agreement
Commercial General Liability:
Combined Single Limit: $1,000,000
Professional Liability:
Combined Single Limit: $1,000,000
Automobile Liability:
Combined Single Limit for any auto: $500,000 Per Occurrence
ESA shall further cause any approved subcontractor or sub -consultant to procure and carry,
during the term of this Agreement, Professional Liability coverage, as specified above for ESA,
protecting City against direct losses caused by the professional negligence of the approved
subcontractor or sub -consultant.
The City shall be named as additional insured with respect to the the Automobile Liability and
Commercial General Liability on a primary and non contributory basis and shall be granted a waiver of
subrogation under those policies. ESA shall provide a Certificate of Insurance to the City as evidence of
coverage. The Certificate shall provide 30 days notice of cancellation. A copy of the additional insured
endorsement and waiver of subrogation attached to the policy will be included in the Certificate. Copies
of all endorsements are required.
ESA shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the
Texas Labor Code. Further, ESA shall maintain said coverage throughout the term of this Agreement
and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that ESA maintains
said coverage. ESA may maintain Occupational Accident and Disability Insurance in lieu of Worker's
Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor
of the City of Lubbock.
If at any time during the life of the Agreement or any extension hereof, ESA fails to maintain
the required insurance in full force and effect, ESA shall be in breach hereof and all work under the
Agreement shall be discontinued immediately.
ARTICLE IX. EMPLOYMENT OF AGENTS/ RETAINING
OF CONSULTANTS
ESA may employ or retain consultants, contractors, or third parties (any of which are referred
to herein as "Sub -consultand, to perform certain duties of ESA provided that City approves the
retaining of Sub -consultants. ESA is at all times responsible to City to perform the Project as provided
in this Agreement and ESA is in no event relieved of any obligation under this Contract upon retainage
of any approved Sub -consultant. Any agent and/or Sub -consultant retained and/or employed by ESA
shall be required to carry, for the protection and benefit of the City and ESA and naming said third
parties as additional insureds, insurance as described above in this Agreement.
Page 4 of 8
ESA Agreement
ARTICLE X. CONFIDENTIALITY
ESA shall retain all information received from or concerning the City and the City's business in
strictest confidence and shall not reveal such information to third parties without prior written consent
of the City, unless otherwise required by law.
ARTICLE XI. INDEMNITY
ESA SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED
OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES,
CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND
ATTORNEY'S FEES FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY,
RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING
OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF ESA, ITS AGENTS, EMPLOYEES,
AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER
THIS CONTRACT AND/OR THE USE OF OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY
OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OF TERMINATION OF THIS
AGREEMENT.
ARTICLE XII. COMPLIANCE WITH APPLICABLE LAWS
ESA shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and
regulations relating, in any way, manner or form, to the activities under this Agreement, and any
amendments thereto.
ARTICLE XIII. NOTICE
A. General. Whenever notice from ESA to City or City to ESA is required or permitted by this
Agreement and no other method of notice is provided, such notice shall be given by (1) actual delivery
of the written notice to the other party by hand (in which case such notice shall be effective upon
delivery); (2) facsimile (in which case such notice shall be effective upon delivery); or (3) by depositing
the written notice in the United States mail, properly addressed to the other party at the address
provided in this article, registered or certified mail, return receipt requested, in which case such notice
shall be effective on the third business day after such notice is so deposited.
B. ESA's Address. ESA's address and numbers for the purposes of notice are:
Environmental Services Agency
Attn: Terry L Adams
4601 50'h Ste 215
Lubbock, TX 79414
Telephone: (806) 368-8731
Facsimile: (806) 300-0373
Page 5 of 8
ESA Agreement
C. City's Address. The City's address and numbers for the purposes of notice are:
City of Lubbock
Attn: Wesley D. Everett — Director Facilities Management
P. O. Box 2000
1625 13th Street
Lubbock, TX 79457
Telephone: (806) 775 — 2275
Facsimile: n/a
D. Change of Address. Either party may change its address or numbers for purposes of notice
by giving written notice to the other party as provided herein, referring specifically to this Agreement,
and setting forth such new address or numbers. The address or numbers shall become effective on the
15th day after such notice is effective.
ARTICLE XIV. CITY -PROVIDED DATA
City shall furnish ESA any available data in the possession of the City pertinent to ESA's
Services, so long as City is entitled to rely on such data for the performance of ESA's Services under this
Agreement (the "Provided Data'D. ESA shall be entitled to use and rely, so long as such reliance is
reasonable, upon all such Provided Data.
ARTICLE XV. MISCELLANEOUS
A. Captions. The captions for the articles and sections in this Agreement are inserted in this
Agreement strictly for the parties' convenience in identifying the provisions to this Agreement and shall
not be given any effect in construing this Agreement.
B. Audit. ESA shall provide access to its books and records to the City. The City may audit, at
its expense and during normal business hours, ESA's books and records with respect to this Agreement
between ESA and City.
C. Records. ESA shall maintain records that are necessary to substantiate the services
provided by ESA.
D. Assignability. ESA may not assign this Agreement without the prior written approval of the
City.
E. Successor and Assigns. This Agreement binds and inures to the benefit of the City and ESA,
and in the case of City, its respective successors, legal representatives, and assigns, and in the case of
ESA, its permitted successors and assigns.
F. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN
LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE
EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE
STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY.
Page 6 of 8
ESA Agreement
G. Severability. If any provision of this Agreement is ever held to be invalid or ineffective by
any court of competent jurisdiction with respect to any person or circumstances, the remainder of this
Agreement and the application of such provision to persons and/or circumstances other than those with
respect to which it is held invalid or ineffective shall not be affected thereby.
H. Amendment. No amendment, modification, or alteration of the terms of this Agreement
shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to
this Agreement, and duly authorized and executed by ESA and City.
I. Entire Agreement. This Contract, including Exhibits "A" and "B", attached hereto, contains
the entire Agreement between the City and ESA, and there are no other written or oral promises,
conditions, warranties, or representations relating to or affecting the matters contemplated herein.
J. No Joint Enterprise. Nothing contained herein shall be construed to imply a joint venture,
joint enterprise, partnership or principal — agent relationship between ESA and the City.
K. Documents Owned by City. Any and all documents, drawings and specifications prepared
by ESA as part of the Project hereunder, shall become the property of the City when ESA has been
compensated as set forth in Article II, above. ESA shall make copies of any and all work products for its
files.
L. Notice of Waiver. A waiver by either City or ESA of a breach of this Agreement must be in
writing to be effective. In the event either party shall execute and deliver such waiver, such waiver
shall not affect the waiving party's rights with respect to any other or subsequent breach.
M. Third Party Activities. Nothing in this Agreement shall be construed to provide any rights or
benefits whatsoever to any party other than City and ESA.
N. Extent of Responsibility. ESA does not guarantee that proposals, bids or actual project
costs will not vary from ESA's opinions of probable cost or that actual schedules will not vary from ESA's
projected schedules. ESA shall not be responsible for: (1) construction means, methods, techniques,
sequences, procedures, or safety precautions and programs in connection with the Project; (2) the
failure of any contractor, subcontractor, vendor, or other Project participant, not under contract to ESA,
to fulfill contractual responsibilities to the Client or to comply with federal, state, or local laws,
regulations, and codes; or (3) procuring permits, certificates, and licenses required for any construction
unless such responsibilities are specifically assigned to ESA in Exhibit A, Scope of Services.
O. Unforeseen Circumstances. Except for Client's obligation to make payments, neither party
shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond
such party's reasonable control. Professional Consultant shall be entitled to an equitable adjustment in
schedule and compensation in the event such circumstances occur.
Page 7 of 8
ESA Agreement
EXECUTED as of the Effective Date hereof.
ATTEST:
eb Ica Garza, City Secretary
APPROVED AS TO. CONTENT:
R� &V
Wesley D. Everett
ESA Agreement
CITY OF LUBBOCK
Environmental Services Agency
Name: Tina Sanders, President
Page 8 of 8
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Environmental Services Agency Page 6
ENVIRONMENTAL SERVICES AGENCY, L.L.C.
P.O. BOX 94182
LUBBOCK, TEXAS 79493
ASBESTOS AND MOLD ABATEMENT CONSULTING SERVICES CONTRACT
CLIENT:
WES EVERETT
CITY OF LUBBOCK
LUBBOCK, TEXAS 79401
SCOPE OF SERVICES: Environmental Services Agency, L.L.C. (hereinafter ESA) will provide asbestos
consulting services as described in this paragraph and in compliance with the attached "Terms of
Agreement." Scope of Work includes only those items specifically identified herein.
1. Abatement project design with written specifications and floor plans setting performance
requirements for remediation of asbestos containing materials and mold contaminated materials
in support of renovation at Citizen's Tower located atl4th and Ave K in Lubbock, Texas..
Includes conducting pre-bid meeting(s) and attending bid opening and evaluation meetings with
designated COL staff.
2. Provide project management and air monitoring services for duration of abatement project by
contractor chosen by COL. Project management rate shall be based on a standard eight (8) hour
work day. Project manager shall be on site at all times removal work is being conducted by
contractor. Hours in excess of eight (8) hour days, weekends and holidays shall be charged at
the rate of one and one-half (1.5) times the daily rate provided.
3. Attendance by Consultant of progress and other meetings deemed appropriate or necessary to
the success of the project by Consultant or COL.
4. Review of pre and post job submittals, progress and final pay applications, and requests for
information or clarification submitted by contractor during the course of the project and upon
substantial completion and timely submittal of required documents.
5. Services for this project are to be billed as accrued monthly. Total Project shall have a not to
exceed amount as indicated under "FEE." Not to exceed dollar figure shall include items 1
through 4 above. Change orders, or items not listed in 1 through 4 above shall not be included in
the not to exceed amount except by mutual agreement of the City of Lubbock and Environmental
Services Agency.
FEE; ESA proposes to provide asbestos and mold consulting services for a fee of:
Item 1 in SCOPE OF SERVICES $4,550.00 for project design.
Item 2 in SCOPE OF SERVICES $560.00 per day per PM.
Item 3 in SCOPE OF SERVICES $100.00 per hour per meeting.
Item 4 in SCOPE OF SERVICES $70.00 per individual submittal.
Item 5 in SCOPE OF SERVICES $252,430.00
ADDITIONAL CHARGES: Services or samples required in excess of those included in the above
SCOPE OF SERVICES shall be billed out at the rates shown below. Labor in excess of those stated
above shall be billed at the following rates.
Consultant $100.00 per hour
Asbestos Technician $65.00 per hour
PCM Samples $18.00 per additional sample plus fee.
TEM (AHERA clearance) five sample set $600.00 per set plus fee.
Sales tax is not included in the fee or additional charges, if applicable.
EXHIBIT B
Environmental Services Agency Page 7