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HomeMy WebLinkAboutResolution - 2008-R0032 - Professional Services Agreement - ARCADIS US Inc. - 01/24/2008Resolution No, 2008-80032 January 24, 2008 Item No_ 4.17 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 by and between the City of Lubbock and ARCADIS U.S., Inc., and all related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. 'xecuted by the City Council this Tom City Manager/Water Utilities Director APPROVED AS TO FORM: ,hard K. Casner, First Assis—tMACity Attorney ServicesAgreement-ARCADIS 120307 7, 2007 f January 2008. __-- DAVID A.A. MILLER, MAYOR Resolution No. 2008-R0032 PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("Agreement') is entered into this 24th day of January, 2008, by and between the City of Lubbock (the "City"), a Texas home rule municipal corporation, and ARCADIS U.S., Inc. (the "Engineer"), a Delaware corporation. WITNESSETH WHEREAS, Engineer has substantial skill and experience in the field of hydrology and the management, evaluation and remediation of groundwater, including without limitation, the processing and evaluation of data from groundwater sampling, modeling of groundwater data and preparing reports for submittal to the Texas Commission on Environmental Quality (the "Activities"); WHEREAS, after consideration of the work experience and other qualifications, of Engineer, City has determined that Engineer possesses significant abilities and experience in regard to the Activities and has agreed to perform services related to the Activities for a fair and reasonable price; WHEREAS, the City desires to contract with Engineer to perform services related to the Activities and Engineer desires to provide the services related to same. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Engineer agree as follows: ARTICLE I Services 1.01 Engineer shall conduct all activities, as set forth on Exhibit "A", "Scope of Services", attached hereto (the "Services"). The Services shall be completed by Engineer as provided in the Scope of Service. In addition to the specifically described tasks, Engineer may also conduct the activities described in the Scope of Services relating to contingencies, the update of Lubbock Land Application Site ("LLAS") remediation plan and evaluation of deep seated nitrogen at the LLAS ("Additional Services"), as requested by the City. 1.02 The services related to the Activities, including any product deliverable thereof, is performed at the direction of the City Attorney of the City and such work is privileged under the attorney-client privilege and the attorney work product privilege. The work, or any aspect thereof, related to the Activities shall not be disclosed to any other party or entity without the express approval of the City Attorney of the City. AR'T'ICLE II Compensation and Term 2.01 The consideration to be paid for the Services to be provided the City as described in Article I shall be as provided on Exhibit "A", attached hereto, not to exceed the sum of One Hundred Twenty Six Thousand Nine Hundred Fifty and 00/100 ($126,950). The Additional Services shall be payable upon the hourly rates and fees as set forth in Exhibit "A", but not to exceed the sum Fifty -Five Thousand and 00/100 ($55,000) (except as differentiated in Section 1.01 and Section 2.01, the terms "Services" and "Additional Services" shall be collectively referred to herein as "Services"). The amount payable hereunder shall be invoiced to the City on a monthly basis as the work is performed, and shall be payable by the City within thirty (30) days after receipt of same. 2.02 This Agreement shall expire on January 1, 2009. The City may terminate this Agreement for convenience by providing written notice to Engineer at least five -2- (5) days prior to the effective date of termination as provided in such notice. In the event this Agreement is so terminated, the City shall pay Engineer only for services actually performed by Engineer up to and including the date the Engineer is deemed to have received the City's notice of termination. ARTICLE III Independent Contractor 3.01 It is understood and agreed that Engineer is to perform the Services in a sound and professional manner and exercising the degree of care, skill and diligence in the performance of the Services as a reasonable and prudent engineer; and Engineer hereby warrants to the City that the Services shall be so performed. Further, Engineer is and shall be considered at all times an independent contractor under this Agreement and/or in its services, hereunder. During the performance of the Services under this Agreement, Engineer and Engineer's employees shall 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 IV Events of Default/Remedies 4.01 Engineer's Defaults/City's Remedies. In the event Engineer shall default in the performance of any term or provision of this Agreement for any reason other than failure by the City to perform hereunder, the City may, if said default shall be continuing after five (5) days notice of such default is delivered to Engineer, -3- exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the right to terminate this Agreement without additional notice. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. ARTICLE V lnsurance/Indemnity 5.01 Engineer 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. Engineer shall obtain and maintain in full force and effect during the term of this Agreement, commercial general liability, professional liability and automobile liability coverage with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of ANII or better. The policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Combined Single Limit: $300,000 Professional Liability to include Environmental Liability): Combined Single Limit: $1,000,0000 Automobile Liability: CI Combined Single Limit for any auto: $100,000 Per Occurrence The City shall be listed as a primary additional insured with respect to the Automobile Liability and Commercial General Liability and shall be granted a waiver of subrogation under those policies. Engineer shall provide a Certificate of Insurance to the City as evidence of coverage. The Certificate shall provide 30 days notice to City of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the Certificate. Engineer shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Engineer 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 the Engineer maintains said coverage. The Engineer 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. Employer's Liability with limits of at least $100,000 each accident, $500,000 by disease policy limit, and $100,000 by disease each employee shall also be obtained and maintained throughout the term of this Agreement. If at any time during the life of the Agreement or any extension hereof Engineer fails to maintain the required insurance in full force and erect, Engineer shall be in breach hereof and all work under this Agreement shall be discontinued immediately. -5- Engineer hereby releases the City and the City's elected officials, officers, agents, employees and independent contractors, for itself its employees and agents, and shall indemnify and hold City and City's elected officials, officers, agents, employees and independent contractors harmless, to the fullest extent permitted by law, from and against any and all claims, demands, damages, costs, liabilities and expenses, and including reasonable attorney's fees, as a result of� related to, arising from any matter related to Engineer's negligent activities, performances, operations or omissions under this Agreement. ARTICLE VI Miscellaneous 6.01 Engineer shall comply with all taws, statutes, regulations, ordinances, rules and any other legal requirement related to, in any way, manner or form, the performance of the Services contemplated herein. 6.02 Any notice required by this Agreement shall be deemed to be properly served, if (i) provided in person or by telephonic facsimile; or (ii) deposited in the United States mail by certified letter, return receipt requested, addressed to the recipient at recipient's address shown below, subject to the right of either party to designate a different address by notice given in the manner just described. Notice shall be deemed to be received when delivered if provided in person or by telephonic facsimile or, if deposited in the United States mail, as set forth above, three (3) days after depositing such notice in the United States mail, as set forth above. For City: -6- Thomas Adams, Deputy City Manager City of Lubbock P.O. Box 2000 Lubbock, TX 79457 Facsimile: 806-775-2051 w/copy to: Aubrey Spear, Assistant Water Utility Director City of Lubbock P.O. Box 2000 Lubbock, TX 79457 For Engineer: Alan J. Reed, Jr. 1004 North Big Spring Street, Suite 300 Midland, TX 79701 Facsimile No. (432) 687-5401 6.03 THIS AGREEMENT IS TO BE CONSTRUED UNDER TEXAS LAW WITHOUT REGARD TO CONFLICT OF LAW RULES THAT WOULD DIRECT APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. THE OBLIGATIONS OF THE PARTIES CREATED BY THIS AGREEMENT ARE PERFORMABLE, AT LEAST IN PART, IN LUBBOCK COUNTY, TEXAS. VENUE FOR ANY ACTION BROUGHT PURSUANT TO THIS AGREEMENT, OR ACTIVITY CONTEMPLATED HEREBY, SHALL EXCLUSIVELY BE IN LUBBOCK COUNTY, TEXAS. 6.04 This Agreement represents the entire and sole agreement between the City and Engineer with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings, representations or other agreements, whether -7- written or oral. This Agreement may not be modified or amended except in writing and duly executed by each party hereto. 6.05 Nothing containers herein shall be construed to imply a joint venture, joint enterprise, partnership or principal — agent relationship between Engineer and the City. 6.06 If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary to render it valid and enforceable so long as said modification is reasonably within the intent the parties as originally expressed. In the event such provision may not be so modified, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in force and effect as if such provision had not been included in this Agreement. 6.07 Any and all work product prepared by Engineer as part of the Services hereunder, shall become the property of the City when Engineer has been compensated as set forth in Section 2.01, above. 6.08 A waiver by either City or Engineer of a breach of this Agreement shall be in writing. 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. 6.09 Engineer may not assign this Agreement, in whole or in part, without the written consent of such assignment by the City. City and Engineer each bind itself or himself:; their legal representatives and permitted assigns in respect to all provisions of this Agreement. -8- 6.1 a Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than City and Engineer. 6.11 Engineer represents and warrants to City that it has taken all actions necessary to authorize the party executing this Agreement to bind, in all respects, Engineer to all terms and provisions of this Agreement, and that such person possesses authority to execute this Agreement and bind Engineer hereto. 6.12 Use of Documents. All documents generated by Engineer pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others for any other project or purpose than that for which they were created. Reuse of the reports or materials for any other purpose shall be at the City or user's sole risk, without liability to Engineer. The Parties agree that reports prepared by or on behalf of Engineer pertaining to site conditions, including but not limited to geotechnical engineering or geologic reports (hereinafter collectively "Site Condition Reports"), are prepared for the exclusive use of the City and its authorized agents, and that no other party may rely on Site Condition Reports unless Engineer agrees in advance to such reliance in writing. Site Condition Reports are not intended for use by others, and the information contained therein is not applicable to other sites, projects or for any purpose except the one originally contemplated in the Services. The City acknowledges that the Site Condition Reports are based on conditions that exist at the time a study is performed and that the findings and conclusions of the Site Condition Reports may be affected by the passage of time, by manmade events such as construction on or adjacent to the site, or by natural events such as floods, earthquakes, slope instability or groundwater fluctuations, among others. The -9- Parties agree that interpretations of subsurface conditions by Engineer or its subcontractors may be based on limited field observations including, without limitation, from widely spaced sampling locations as provided by Engineer at the Site. The City acknowledges that site exploration by Engineer or its subcontractors will only identify subsurface conditions at those points where subsurface tests are conducted or samples are taken. The Parties agree that Engineer or its subcontractors may review field and laboratory data and then apply professional judgment to render an opinion about subsurface conditions at the Site and that the actual subsurface conditions may differ, sometimes significantly, from those indicated by Engineer or its subcontractors. The City agrees that any report, conclusions or interpretations will not be construed as a warranty of the subsurface conditions by Engineer or its subcontractors. The Parties further agree, except as otherwise provided herein, that no warranty or representation, express or implied, is included or intended in any reports, conclusions, or interpretations prepared by or on behalf of Engineer pertaining to site conditions. 6.13 Except for the payments of money for Services already completed, each Party shall not be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform is caused by or results from causes beyond its control, including without limitation, strikes, lockouts, or other industrial disturbances, civil disturbances, fires, acts of God, acts of a public enemy, compliance with any regulations, epidemics or pandemics. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives as of the date first written above. -10- ATTEST: City Secretary 4.5.54 c,',r P V' ce Fres1 Wel'1 Zngii r. ARCADIS U.S., Inc. By: r c k er Name:��� ,ice Title: 4ssoclale &e &vp Zen` CITY OF LUBBOCK oe DAVID A. MILLER, MAYOR APPROVED AS TO CONTENT: Thomas Adams Deputy City Manager/Water Utilities Director APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney ao/C ity Att/RichardfProfessiona I.rervicesAgreement-ARC ADI s 120307 -11- Resolution No. 2008-R0032 Exhibit "A" Described below is the scope of work and budget for ARCADIS to provide consulting services for the Hancock Land Application Site (HLAS) and Lubbock Land Application Site (LLAS) during fiscal year 2008. This outlines specific tasks, estimated project hours and budgets for ARCADIS to complete the specific tasks for ongoing work associated with the HLAS and LLAS. The fee schedule that ARCADIS has used for work performed during prior years on this project is attached. ARCADIS proposes to use the same fee schedule for all work during fiscal year 2008. Task 1 - HLAS ARCADIS shall complete two main project tasks related to the HLAS. The two projects and associated work scope are summarized below. A summary table outlining the estimated project staffing and labor hours is attached. Task LI - HLAS Data Management This task will involve database file management including database updates, preparation of supporting graphs and QA/QC of data provided by the City of Lubbock during the fiscal year. It is anticipated that the following data will be collected, compiled and included in the databases during the fiscal year: • Quarterly nitrate data from southern monitor wells; • Semi-annual nitrate data from all site wells, and annual data from selected off-site wells; • Annual static water level data from all site wells and from selected off-site wells; • Annual groundwater quality data; and • Annual field data. Throughout the year, as data is compiled and reviewed, ARCADIS will evaluate the data and communicate any findings with the City of Lubbock staff and attorneys. This task will also include assisting the City of Lubbock with the annual static water level recovery program.. This program will include working with the City of Lubbock staff to develop appropriate procedures for collecting static water levels, preparing and submitting a letter to the Texas Commission on Environmental Quality (TCEQ), communicating with the TCEQ on any questions regarding the program, reviewing recovery data and communicating with the TCEQ to obtain concurrence when static conditions are achieved. -12- The budget for ARCADIS to complete the proposed scope of work for "HLAS Data Management" task is $7,650. Task 1.2 - HLAS Annual Report This task generally involves preparation of the HLAS annual report. Specifically, ARCADIS will prepare a draft report that will be submitted to the City of Lubbock and attorneys for review and comments. ARCADIS will work with the City of Lubbock and attorneys to address any comments and will prepare a final report. The report will be sealed by a licensed professional geoscientist or licensed professional engineer. The report is due to the TCEQ by May 31, 2008. An outline of the report sections is included in the attached table. The budget for ARCADIS to complete the proposed scope of work for the "HLAS Annual Report" task is $22,985. Task 2 - LLAS ARCADIS shall complete three main project tasks related to the LLAS. The three projects and associated work scope are summarized below. A summary table outlining the estimated project staffing and labor hours is attached. Task 2.1- LLAS Data Management This task will involve database file management including database updates, preparation of supporting graphs and QA/QC of data provided by the City of Lubbock during the fiscal year. It is anticipated that the following data will be collected, compiled and included in the databases during the fiscal year: • Monthly groundwater production data; • Semi-annual nitrate data from all site wells; • Annual static water level data from all site wells; • Annual groundwater quality data; • Annual field data; and • Quarterly lake nitrate data. Throughout the year, as data is compiled and reviewed, ARCADIS will evaluate the data and communicate any findings with the City of Lubbock staff and attorneys. This task will also include assisting the City of Lubbock with the annual static water level recovery program. This program will include working with the City of Lubbock staff to develop appropriate procedures for collecting static water levels, preparing and submitting a letter to the Texas Commission on Environmental Quality (TCEQ), communicating with the TCEQ on any questions regarding the program, reviewing recovery data and communicating with the TCEQ to obtain concurrence when static conditions are achieved. The budget for ARCADIS to complete the proposed scope of work for the "LLAS Data Management" task is $10,200. -13- Task 2.2 - LLAS Annual Report This task generally involves preparation of the LLAS annual report. Specifically, ARCADIS will prepare a draft report that will be submitted to the City of Lubbock and attorneys for review and comments. ARCADIS will work with the City of Lubbock and attorneys to address any comments and will prepare a final report. The report will be sealed by a licensed professional geoscientist or licensed professional engineer. The report is due to the TCEQ by May 31, 2008. An outline of the report sections is included in the attached table. The budget for ARCADIS to complete the proposed scope of work for the "LLAS Annual Report" task is $36,650. Task 2.3 - LLAS Groundwater Model Update A groundwater model was developed in fiscal year 2003 as part of the groundwater remediation work plan for the LLAS. This model has served to provide predictions of overall nitrate quality in the groundwater beneath the LLAS. However, utilization of the model during the past year indicated that adjustments to the model are necessary. The main concern is related to hydraulic conductivity values. When the model was first developed, the groundwater beneath the LLAS had substantially more gross saturated thickness than today. As a result, the average hydraulic conductivity values used in the original model are not indicative of current conditions. ARCADIS shall update the groundwater model in January / February 2008. Work required to complete the groundwater update will include: • Development of a flow testing program; • Implementation of the flow testing program including provision of well modifications, data logging equipment and technical support; and • Updating the groundwater model. It is anticipated that up to eight wells across the LLAS will be selected for flow testing. ARCADIS will work with the City of Lubbock to select the wells, and the City of Lubbock will perform the testing activities according to a written work plan provided by ARCADIS. The flow testing will need to be completed in January at the conclusion of the static water level recovery program and prior to reactivation of the entire LLAS remediation system. Once the data is collected, ARCADIS will develop and evaluate the data and update the groundwater model. The estimated budget for ARCADIS to complete the proposed scope of work for the "LLAS Groundwater Model Update" task is $20,300. Task 3 - Project Management 1 Communications During the course of the fiscal year, there will be times when ARCADIS will need to communicate with the City of Lubbock staff, attorneys, the TCEQ and with Agri -Waste Technologies (AWT) regarding routine matters or to address questions that arise from -14- operations and management of the HLAS and LLAS. In addition, ARCADIS anticipates that there may be up to two meetings with the City of Lubbock staff during the fiscal year. To budget for the general communications and meetings, ARCADIS proposes a budget of $29,165. A table is attached outlining the proposed scope and estimated staffing for this task. In general, it is anticipated that ARCADIS staff will communicate with City of Lubbock staff approximately four hours per month, with attorneys approximately two hours per month, with the TCEQ approximately one-half hour per month and with AWT approximately two hours per month. Project Summary Budget The project summary budget for ARCADIS to perform work defined related to the above HLAS and LLAS tasks is as follows: Task 1 — HLAS Task 1.1 - HLAS Data Management $ 7,650 Task 1.2 - HLAS Annual Report $ 22,985 Task 2 - LLAS Task 2.1 - LLAS Data Management $ 10,200 Task 2.2 - LLAS Annual Report $ 36,650 Task 2.3 - LLAS Groundwater Model Update $ 20,300 Task 3 — Project Management / Communications $29,165 Total Estimated Project Budget $126,950 Additional Services ARCADIS previously submitted a project budget for fiscal year 2008 to the City of Lubbock in the amount of $180,000. The original budget included out of scope / contingency work for both the HLAS and L LAS, and other work, including an update to the remediation work plan for the LLAS, anticipated to be performed during fiscal year 2008. Other work not specifically budgeted for, but anticipated, includes evaluation of deep seated nitrogen for the LLAS. ARCADIS understands that the remediation work plan revision and evaluation of deep seated nitrogen are currently being planned by the City of Lubbock for implementation in fiscal year 2008, and if these tasks or other out of scope work tasks are initiated by the City, ARCADIS will prepare separate project scopes and budgets for review and approval by the Deputy City Manager of the City of Lubbock. If approved, the requested Additional Services shall be payable upon the hourly rates and fees set forth in this Exhibit "A". -15- Resolution No. 2008-R0032 FEE SCHEDULE FOR PROFESSIONAL SERVICES Invoices for services provided by ARCADIS, Inc. consist of (1) hourly rate professional services fees; (2) material and equipment expenditures and usages; (3) subcontractor costs; (4) travel, shipping, and communications charges, and (5) sales or gross receipt taxes, as applicable. Subject to periodic revisions, hourly rate fees for ARCADIS, Inc. professional services are indicated below: STAFF CATEGORIES HOURLY RATES ENGINEERS AND SCIENTISTS Staff Scientist/Engineer 1 $62 Staff Scientist/Engineer 2 $80 Project Staff 1 $95 Project Staff 2 $110 Senior Project Staff 1 $127 Senior Project Staff $149 CONSTRUCTION SERVICES AND TECHNICIANS Technician 1 $47 Technician 2 $62 Technician 3 $71 Field Manager 1 $92 Field Manager 2 $105 OFFICE SUPPORT STAFF Clerical/Word Processing $46 Drafting $59 Project Assistant/Senior Drafting $68 Designer/Senior Designer $81 INVOICING AND PAYMENT: Progress invoices will be issued monthly and payment is due within thirty (30) days of invoice date. Invoices for subcontractor charges are payable upon presentation. Non-standard, client -requested invoice formats and supporting documentation will be invoiced at $44.00 per hour plus expenses. A finance charge of 1.5% per month will be payable on past -due account balances. -16- FEE SCHEDULE FOR PROFESSIONAL SERVICES ADDITIONAL TERMS PROJECT MATERIALS AND EQUIPMENT: All project -related expenses, materials, field supplies, equipment charges; premiums for insurance, bonds, and letters of credit required by the client in addition to normal coverage; project -required permits and licenses; etc. will be invoiced at cost plus 10%. PROJECT COMMUNICATION AND SHIPPING EXPENSES: Charges for long- distance telephone, photocopying, blueprints, express and regular shipping and postage will be invoiced at cost plus 10%. TRAVEL AND RELATED EXPENSES: Charges for rental vehicles, meals, travel and lodging will be invoiced at actual cost plus 10%. Personal vehicles will be charged at $0.45/mile. SUBCONTRACTS: Subcontractor (drillers, analytical Iaboratories, etc.) charges will be invoiced at cost plus 10%. * PROJECT ADVISORS AND SENIOR EXPERTS: Rates for Project Advisors (Mr. A. Joseph Reed) are $230/hour. Rates for Senior Experts are a function of the individual and are quoted upon request. -17- ARCADIS EQUIPMENT AND MATERIALS: ARCADIS-owned equipment, vehicles and materials will be invoiced at fixed unit rates. A summary of these rates will be provided upon request. ARCADIS TREATABILITY LAE ANALYSES: Routine Treatability Laboratory analyses will be invoiced at a fixed price per test. Rates will be available upon request. *David Vance will be billed at $200 per hour. Richard/Profession[Se vicesAgreemart-ARCADIS 010808 -18-