HomeMy WebLinkAboutResolution - 2010-R0203 - Professional Services Agreement With Hardin & Associates, Inc. - 04/19/2010Resolution No. 2010-RO203
April 19, 2010
Item No. 5.9
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 between the City of Lubbock and Hardin & Associates, Inc. to provide certain
professional skill and management services in the protection and inspection for backflow
facilities, and 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.
Passed by the City Council this 19th„ day of April 2010.
TOM MARTIN, MAYOR
ATTEST:
Rebecc Garza, City Secretary
APPROVED AS TO CONTENT:
{/ �1 9
Marsha Reed, P.E., Chief Operating Officer
APPROVED AS
ttorney
Professional Srvs Agrmnt-Backflow Protection Consultmg.res4 5 10
Resolution No. 2010-RO203
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") for Backflow Protection
Consulting, resultant to RFQ-10-046-FO (Contract # 9513), is entered into this 19th day of
it , 2010, by and between the City of Lubbock (the "City" or "Owner"), a
Texas home rule municipal corporation, and Hardin & Associates, Inc. (the "Consultant"), a
Texas corporation.
WITNESSETH
WHEREAS, Consultant has substantial skill and experience in the inspection of facilities
for backflow protection and the management of backflow protection programs according to
Texas Commission on Environmental Quality (TCEQ) rules and procedures (the "Activities");
WHEREAS, Consultant has demonstrated competence and qualifications to perform the
Services, as defined below, and will perform the Services for a fair and reasonable price;
WHEREAS, the City desires to contract with Consultant to perform services related to
the Activities and Consultant 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 Consultant agree as follows:
ARTICLE I
Services
1.01 Consultant shall conduct all activities and within such time frames, as set forth on Exhibit
"A", "Scope of Services", and Exhibit `B", "Payments to Consultant", attached hereto
(the "Services") for a Not -To -Exceed amount of $ 243,640.00. Consultant shall have no
liability for defects in the Services attributable to Consultant's reliance upon or use of
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data, criteria, drawings, specifications, or other information prepared by City and
famished to Consultant by City.
1.02 Consultant shall commence work upon written notice to proceed by City with other tasks
set forth in Exhibit "A". In the event such notice shall occur after April 15, 2010 the time
for performance by Consultant for such tasks shall be extended the same amount of days
as such notice occurs subsequent to the respective dates. The City Council of the City of
Lubbock hereby delegates the authority to provide the prescribed Notice(s) to Proceed to
the Director of Water Utilities, or his designee.
ARTICLE 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 indicated in attached Exhibit "B". This amount shall be invoiced to
the City monthly as work is performed and based on the applicable hourly rate schedule
of the respective firm at the time services are rendered.
2.02 In the event City disputes any invoice item, City shall give Consultant written notice of
such disputed item within ten (10) days after receipt of such invoice and shall pay to
Consultant the undisputed portion of the invoice on or before thirty one (3 1) days after its
receipt. If City fails to pay any invoiced amounts when due, interest will accrue on each
unpaid amount at the rate in effect on September 1 of the fiscal year in which the
payment becomes overdue, the rate in effect on September 1 being equal to the sum of (i)
one ( 1 % ); and (ii) the prime rate as published in the Wall Street Journal on the first day
of July of the preceding fiscal year that does not fall on a Saturday or Sunday, or the
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maximum amount allowed by law, if less, from the date said payment is overdue until
paid according to the provisions of the Agreement. Interest shall not be charged on any
disputed invoice item finally resolved in City's favor. Payment of interest shall not
excuse or cure any default or delay in payment of amounts due.
2.03 This Agreement shall expire on September 30, 2010. After completion of the initial
Agreement term, the Agreement may be renewed for a period not to exceed one year per
renewal with no more than three renewal periods, under the same terms and conditions
and at the sole discretion of the City. City or Owner may terminate this Agreement if the
other party here to defaults on the performance of this agreement or materially breeches
any of its provisions by providing written notice to the other stating the grounds for such
termination and, an effective date of such termination, such notice to be given at least
thirty (30) 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 Consultant only for services
actually performed by Consultant up to and including the effective date of the
termination.
2.04 Except for City's payment obligation, neither City nor Consultant shall be considered in
default of this Agreement for delays in performance caused by circumstances beyond the
reasonable control of the non-performing party (herein called a "force majeure event") for
the period of such delay, so long as the affected party exercises due diligence to relieve or
remove such force majeure event. For purposes of this Agreement, such circumstances
include, but are not limited to; unusually severe weather conditions; floods; earthquakes;
fire; epidemics; war, riots, and other civil disturbances; strikes, lockouts, work
slowdowns, and other labor disturbances; sabotage; judicial restraint; and inability to
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procure permits, licenses, or authorizations from any local, state, or federal agency for
any of the supplies, materials, accesses, or services required to be provided by either City
or Consultant under this Agreement. Should such circumstances occur, the non-
performing parry shall, within a reasonable time of being prevented from performing,
give written notice to the other party describing the circumstances preventing continued
performance and the efforts being made to resume performance of this Agreement.
ARTICLE III
Independent Contractor
3.01 It is understood and agreed that Consultant 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 is exercised by a professional Consultant under similar
circumstances at the time such Services are performed. City shall not be responsible for
discovering deficiencies or defects in the performance of the Services by Consultant. NO
OTHER WARRANTY, EXPRESSED OR IMPLIED, IS INCLUDED IN THIS
AGREEMENT OR IN ANY DRAWING, SPECIFICATION, REPORT, OR OPINION
PRODUCED PURSUANT TO THIS AGREEMENT. Further, Consultant is and shall
be considered at all times an independent contractor under this Agreement and/or in its
service, hereunder. During the performance of the Services under this Agreement,
Consultant and Consultant's employees or its approved subcontractors 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,
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4.01
laws, rules or regulations regarding or related to unemployment insurance, old age
benefits, workers compensation, labor, personal injury or taxes of any kind.
r.IA"WOM"
Events of Default/Remedies
a. City's Defaults/Consultant's Remedies. In the event the City shall default in the
performance of any term or provision of this Agreement for any reason other than failure
by Consultant to perform hereunder, Consultant may, if said default shall be continuing
after five (5) days notice of such default is deemed received by the City, exercise any
right or remedy available to it by law, contract, equity or otherwise.
b. Consultant's Defaults/City's Remedies. In the event Consultant 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 deemed received by Consultant, exercise any right
or remedy available to it by law, contract, equity or otherwise, including without
limitation, specific performance and/or 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
Insurance/Indemnity
5.01 a. Insurance. Consultant shall procure and carry, at its sole cost and expense through the
life of this Agreement and for a period not to exceed 3 years following the termination or
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expiration 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.
Consultant 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 A -VII 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:
Professional Liability:
Combined Single Limit:
Automobile Liability:
Combined Single Limit for any auto:
$1,000,000
$2,000,000 per occurrence
$4,000,000 annual aggregate
$500,000 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. Consultant 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
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policy will be included in the Certificate.—The additional insured endorsement shall
include Products and Completed Operations.
Consultant shall elect to obtain worker's compensation coverage pursuant to
Section 406.002 of the Texas Labor Code. Further, Consultant 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 Consultant maintains said coverage.
The Consultant 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,
Consultant fails to maintain the required insurance in full force and effect, Consultant
shall be in breech hereof and all work under the Agreement shall be discontinued
immediately.
b. Indemnification. Having considered the potential liabilities that may exist during the
performance of the Services, the benefits of the Project, and the Consultant's fee for the
Services, and in consideration of the promises contained in this Agreement, Consultant
agrees to provide the indemnities set forth herein.
Consultant 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 or arising from Consultant's negligent acts,
errors, or omissions.
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The indemnity provided herein shall survive the expiration or termination of this
Agreement for a period not to exceed three years.
ARTICLE VI
Miscellaneous
7.01 Consultant shall exercise usual and customary professional care in efforts to comply with
all laws, statutes, regulations, ordinances, rules and any other legal requirement in effect
at the time Services are performed.
7.02 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:
Aubrey Spear, P.E.
P.O. Box 2000
Lubbock, Texas 79457
Facsimile: (806) 775-3344
For Consultant:
Byron R. Hardin, CPM
153 Simmons Drive
Coppell, Texas 75019
Facsimile: (972) 304-1564
7.03 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.
7.04 This Agreement represents the entire and sole agreement between the City and
Consultant with respect to the subject matter hereof and supersedes any and all prior
negotiations, understandings, representations or other agreements, whether written or
oral. This Agreement may not be modified or amended except in writing and duly
executed by each party hereto.
7.05 Nothing contained herein shall be construed to imply a joint venture, joint enterprise,
partnership or principal — agent relationship between Consultant and the City.
7.06 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.
7.07 Any and all documents, drawings and specifications prepared by Consultant as part of the
Services hereunder, shall become the property of the City when Consultant has been
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compensated as set forth in Section 2.01, above. Rights to intellectual property
developed, utilized, or modified in the performance of the Services shall remain the
property of Consultant.
7.08 A waiver by either City or Consultant 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.
7.09 Except as otherwise provided herein, neither City nor Consultant may assign or
subcontract any part of the Services under this Agreement, in whole or in part, without
the written consent of such assignment by the non -assigning party. City and Consultant
each bind itself or himself, their legal representatives and permitted assigns in respect to
all provisions of this Agreement.
7.10 Nothing in this Agreement shall be construed to provide any rights or benefits
whatsoever to any party other than City and Consultant.
7.11 Consultant represents and warrants to City that it has taken all actions necessary to
authorize the party executing this Agreement to bind, in all respects, Consultant to all
terms and provisions of this Agreement, and that such person possesses authority to
execute this Agreement and bind Consultant hereto.
7.12 Consultant shall not be responsible for: (1) construction means, methods, techniques,
sequences, procedures, or safety precautions and programs in connection with the project
to which the Services design (the "Project"); (2) the failure of any contractor,
subcontractor, vendor, or other Project participant, not under contract to Consultant, to
fulfill contractual responsibilities to the City or to comply with federal, state, or local
laws, regulations, and codes; or (3) procuring permits, certificates, and licenses required
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for any construction unless such responsibilities are specifically assigned to Consultant in
Exhibit "A", Scope of Services.
7.13 Anything herein to the contrary notwithstanding, title to, ownership of, and legal
responsibility and liability for any and all pre-existing contamination shall be determined
in accordance with all applicable statutes, regulations, rules, orders and ordinances.
7.14 The performance of City hereunder shall be at all times conditioned upon the
appropriation of sufficient funds by the City Council of the City of Lubbock. In the event
that such funds are not so appropriated by the City Council, such shall not be considered
a breach of this Agreement by the City.
7.15 City and Consultant agree that any dispute between them arising out of or related to this
Agreement shall be submitted to non-binding mediation prior to exercising any other
rights under law, unless the parties mutually agree otherwise.
7.16 The authority to act as Owner representative, as contemplated herein, is hereby delegated
by the City Council of the City to the Director of Water Utilities, or his designee.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date first written above.
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HARDIN & ASSOCIATES CONSULTING, LLC
r
BYRON . HARDIN, CPM, PRESIDENT
CITY OF LUBBOCK
TOM MARTIN, MAYOR
ATTEST:
f��6-
Rebecc&Garza, City Secretary
APPROVED AS TO CONTENT:
P.E., Chief Operating Officer
Aubrey SpP.E., director of Water Utilities
APPROVED AS T• • R
U/171'
JiJ
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Resolution No. 2010-RO203
EXHIBIT A
SCOPE OF SERVICES
BACKFLOW PROTECTION PROGRAM CONSULTING
HARDIN & ASSOCIATES CONSULTING, LLC
The purpose of this scope of services is for the Consultant to assist the City in 1) conducting
backflow prevention customer service inspections (CSIs) as required by the Texas Commission
on Environmental Quality (TCEQ), and 2) reviewing the City's existing Cross -Connection
Control Backflow Prevention Program. The program review will assist the City with the
establishment of a program that will meet state and federal requirements and address the
department's ability to implement all the required components of the program.
BACKGROUND
Texas has promulgated regulations that mandate that all public water suppliers have a program to
require backflow prevention devices be installed to protect against contamination of public water
supplies. Effective January 1, 1996, the Texas Commission on Environmental Quality (TCEQ)
required that all public water systems comply with Texas Administrative Code, Title 30, Chapter
290, which states as follows:
§290.46 (j) Customer Service Inspections. A customer service inspection certificate
shall be completed prior to providing continuous water service to new construction, on
any existing service either when the water purveyor has reason to believe that cross -
connections or other potential contaminant hazards exist, or after any material
improvement, correction, or addition to the private water distribution facilities. Any
customer service inspection certificate form which varies from the format found in
§290.47(d) of this title (relating to Appendices) must be approved by the executive
director prior to being placed in use.
§290.44 Water Distribution. (h). (1). No water connection from any public drinking
water supply system shall be made to any establishment where an actual or potential
contamination or system hazard exists without an air gap separation between the
drinking water supply and the source of potential contamination. .... Under these
conditions, additional protection shall be required at the meter in the form of a backflow
prevention device ...on those establishments handling substances deleterious or
hazardous to the public health. The water purveyor need not require backflow protection
at the water service entrance if an adequate cross -connection control program is in effect
that includes an annual inspection and testing by a certified backflow prevention device
tester. It will be the responsibility of the water purveyor to ensure that these
requirements are met. (Emphasis added)
The TCEQ began full enforcement of these regulations and evaluates public water systems for
compliance through its annual public water system inspection program. All systems found
without a program or with an inadequate program may risk potential enforcement action in
the form of fines each day from the TCEQ until an approved program is in place.
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MAJOR TASKS
The major tasks that will be performed by Hardin & Associates Consulting (HAC) include the
following:
Task 1 - Project Management
RAC will assign a senior Business Consultant Practice (BCP) leader as Project Manager for
preparation of the Cross -Connection Control Backflow Prevention Program. Their
responsibilities will include leading the project efforts, preparing schedule, insuring that the
project is completed in accordance with the Scope of Work, and serving as the key contact
between the City of Lubbock and HAC staff.
Task 2 — Identification of Backflow/Cross-Connection Devices
Assist City staff with identifying and developing an approach designed to help identify the types
and number of possible water utility connections that could require annual inspection and testing
that will meet the TCEQ mandated backflow inspection schedule. This will require a listing
(provided by City of Lubbock staff) of water and sewer customer accounts that have or
potentially will need the backflow prevention devices. All appropriate accounts will be reviewed
by HAC to determine the type of account and possible risk associated with potential cross -
connection.
2.1. Conduct in the field CSI inspections for the purpose of compliance, validation and staff
training. CISs include Lead Swabs and associated inspection forms.
2.2. Enter data from CSI inspections into cross -connection software
2.3. Conduct cross -connection control water use survey inspections (these will be approved
on a case by case basis by COL)
Task 3 - TCEQ Compliance Review
The Compliance Review is critical to ensure that the City of Lubbock's Backflow Prevention and
Cross -Connection Control internal Administrative Policies and Procedures are followed by City
staff or its contractors to avoid further enforcement action from the TCEQ.
3.1. Review existing Backflow Prevention and Cross -Connection Control Ordinance to
ensure compliance with TCEQ Rules and Regulations and Inspection guidelines and
procedures
3.2. Review current plumbing code for cross -connection requirements
3.3. Prepare draft report of recommendations and findings
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Resolution No. 2010-RO203
EXHIBIT B
PAYMENT OF FEES
BACKFLOW PROTECTION PROGRAM CONSULTING
HARDIN & ASSOCIATES CONSULTING, INC.
The City shall pay HAC for services set forth in Exhibit A on an hourly rate basis and per
inspection basis as indicated in the attached schedule below. Each task shall be paid on a Not -to -
Exceed basis as follows:
Task 1: Project Management (hourly)
$ 39,410
Task 2: Backflow Inspections $194,700
2.1: Customer Service Inspections (CSIs)(per inspection) $184,800
2.2: CIS Data Management (hourly) $ 4,900
2.3: Cross -Connection Surveys (upon City approval) (hourly) $ 5,000
Task 3: TCEQ Compliance Review $ 9,530
3.1: Review Existing Backflow Ordinance & Procedures (hourly) $ 3,000
3.2: Review Plumbing Code - Cross -Connections (hourly) $ 1,200
3.3: Prepare draft on Recommendations & Findings (hourly) $ 5,330
Total Contract Amount
$243,640
* All tasks associated with this contract are scheduled to be accomplished by September 30, 2010.
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Backflow Cross -
Connection Control
Per
Sub
Program and
Sr PM
PM
TA
PIC
SAM
DM
Inspection
Tasks
Tasks
Ordinance
$125
$95
$75
$125
$95
$25
$105
Cost
1
Project Management
225
95
12
8
$39,410
2
Backflow Inspections
21
Customer Service
1,760
$184,800
Inspections
2.2
Data Management
196
$4,900
2.3
Cross -Connection
32
12
4
$5,000
Water Use Survey
3
TCEQ Compliance
Review
3.1
Review Backflow
24
$3,000
Prevention Ordinance
3.2
Review Plumbing Code
16
$1,200
Final Report of
3.3
Recommendation &
32
14
$5,330
Findings
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Resolution No. 2010-RO203
EXHIBIT C
RATE SCHEDULE
BACKFLOW PROTECTION PROGRAM CONSULTING
HARDIN & ASSOCIATES CONSULTING, INC.
COMPENSATION
Project Team Member
Labor Rate*
Senior Project Manager
$125.00
Project Manager
$95.00
Technical Advisor
$75.00
Principal In Charge
$125.00
Senior Account Manager
$95.00
Data Entry Clerk
$25.00
Inspection Services Inspection Rate*
Performing CSI Inspection $105.00 per inspection
Performing Water Use Survev Insuection $125.00 per hour
*These costs include all labor, per diem, materials and other cost associated with this
assignment.
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