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HomeMy WebLinkAboutResolution - 2012-R0288 - Agreement - Black & Veatch Corporation - SE Water Reclamation Plant - 06/26/2012Resolution No. 2012—R0288 July 26, 2012 Item No. 5.2 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Professional Services Agreement related to the Southeast Water Reclamation Plant Operations and Maintenance Manual project, by and between the City of Lubbock and Black & Veatch Corporation, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on July 26, 2012 ATTEST: e ecca Garza. Ci "eet APPROVED AS TO CONTENT: ym Z Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocsi ES.PSA-Black & Veatch June 20, 2012 Resolution No. 2012—RO288 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS COUNTY OF LUBBOCK This Agreement (Agreement), effective as of the 26thday of July 2012, is by and between City of Lubbock, Texas (City), a Texas home rule municipal corporation, and Black & Veatch Corporation (Engineer), a Delaware corporation authorized to conduct business in Texas. WITNESSETH WHEREAS, the City desires to obtain professional engineering services related to the Southeast Water Reclamation Plant Operations and Maintenance Manual project (the "Activities'7; and WHEREAS, ENGINEER has a professional staff experienced and is qualified to provide professional engineering services related to Activities, and will provide the services, as defined below, for the price provided herein, said price stipulated by City and Engineer to be a fair and reasonable price; and WHEREAS, the City desires to contract with ENGINEER to provide professional engineering services related to the Activities and Engineer desires to provide the Services related to same. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Contract, the City and ENGINEER hereby agree as follows: ARTICLE I. TERM The term of this Contract commences on the Effective Date and continues without interruption for a term of one (1) year, as set forth in Exhibit "A", attached hereto and made a part of this Agreement for all purposes. The term may be extended by subsequent amendments of this Agreement, with the written and authorized consent of both parties. ARTICLE II. SERVICES AND COMPENSATION Engineer shall perform the services described in Exhibit A --Scope of Services (Services) with regard to the Southeast Water Reclamation Plant Operations and Maintenance Manual project (Project) and payment shall be due and payable upon receipt in accordance with Attachment "13-1", "Compensation". Payments due Engineer under this Agreement shall be electronically transferred either by ACH, specifically in CCD+ or CTX format, or wire transfer to the bank account and in accordance with the bank instructions identified in Engineer's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire Page 1 of 8 Black & Veatch Agreement reference fields or the ACH addenda information. In the event that such electronic funds transfer methods are not available to City, then payments due Engineer under this Agreement shall be made by check and mailed to the PO Box identified in the remittance instructions on the Engineer's most recent invoice. The Remittance Advice document shall be mailed with the check to the PO Box. ARTICLE III. TERMINATION A. General. City may terminate this Contract, for any reason or convenience, upon thirty (30) days written notice to ENGINEER. In the event this Agreement is so terminated, the City shall only pay Engineer for services actually performed by Engineer up to the date Engineer is deemed to have received notice of termination as provided herein. B. Termination and Remedies. In the event ENGINEER breaches any term and/or provision of this Contract the City shall be entitled to exercise any right or remedy available to it by this Contract, at law or equity, including without limitation, termination of this Contract 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. ENGINEER is a corporation 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. Corporate Power. ENGINEER has the corporate power to enter into and perform this Contract and all other activities contemplated hereby. C. Authorization. Execution, delivery, and performance of this Contract and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of ENGINEER. This Contract constitutes legal, valid, and binding obligations of the ENGINEER and is enforceable in accordance with the terms thereof. D. Engineer. ENGINEER 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. E. Performance. ENGINEER will and shall conduct all activities contemplated by this Contract in accordance with the standard of care, skill and diligence normally provided by a professional person in Page 2 of 8 Black & Veatch Agreement performance of similar professional engineering services, and comply with all applicable laws, rules, and regulations, both state and federal, relating to professional engineering services, as contemplated hereby. F. Use of Copyrighted Material. ENGINEER warrants that any materials provided by ENGINEER for use by City pursuant to this Contract 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. ENGINEER shall be solely responsible for ensuring that any materials provided by ENGINEER pursuant to this Contract satisfy this requirement and ENGINEER 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 ENGINEER's failure to perform this duty. G. Engineer warrants that it shall perform the Services in accordance with the standards of care and diligence normally practiced by recognized engineering firms in performing services of a similar nature. If, during the six month period following the earlier of completion or termination of the Services it is shown there is an error in the Services caused solely by Engineer's failure to meet such standards, and City has promptly notified Engineer in writing of any such error within that period, Engineer shall perform, at Engineer's cost, such corrective engineering services within the original Scope of Services as may be necessary to remedy such error. ARTICLE VI. SCOPE OF WORK ENGINEER shall accomplish the following: Professional Engineering Services related to the Southeast Water Reclamation Plant Operations and Maintenance Manual project, as defined in Exhibit "A", "Scope of Work". ARTICLE VII. INDEPENDENT CONTRACTOR STATUS ENGINEER and City agree that ENGINEER shall perform the duties under this Contract as an independent contractor and shall be considered as independent contractor under this Agreement and/or in its activities hereunder for all purposes. ENGINEER has the sole discretion to determine the manner in which the services are to be performed. During the performance of the Services under this Agreement, Engineer and Engineer's employees and/or subconsultants, 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 Engineer shall procure and carry, at its sole cost and Agreement, insurance protection as hereinafter specified, in form carried with an insurance company authorized to transact business aspects and risks of loss of all operations in connection with limitation, the indemnity obligations set forth herein. Black & Veatch Agreement expense through the life of this and substance satisfactory to City, in the state of Texas, covering all this Agreement, including without Page 3 of 8 Engineer shall obtain and maintain in full force and effect during the term of this Agreement, and shall cause each approved subcontractor or subconsultant of Engineer 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. The insurance companies must carry a Best's Rating of A -VII or better. Except for Professional Liability, the policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Combined Single Limit: $1,000,000 Professional Liabili : Combined Single Limit: $1,000,000 Automobile Liability: Combined Single Limit for any auto: $500,000 Per Occurrence Engineer shall further cause any approved subcontractor or subconsultant to procure and carry, during the term of this Agreement, Professional Liability coverage, as specified above for Engineer, protecting City against direct losses caused by the professional negligence of the approved subcontractor or subconsultant. 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. Engineer 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. 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. 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 effect, Engineer shall be in breach hereof and all work under the Agreement shall be discontinued immediately. ARTICLE IX. EMPLOYMENT OF AGENTS/ RETAINING OF CONSULTANTS ENGINEER may employ or retain consultants, contractors, or third parties (any of which are referred to herein as "Subconsultant"), to perform certain duties of ENGINEER provided that City approves the retaining of Subconsultants. ENGINEER is at all times responsible to City to perform the Services as provided in this Agreement and ENGINEER is in no event relieved of any obligation under this Contract upon retainage of any approved Subconsultant. Any agent and/or Subconsultant retained and/or employed by ENGINEER shall be required to carry, for the protection and benefit of the City and Page 4 of 8 Black & Veatch Agreement ENGINEER and naming said third parties as additional insureds, insurance as described above in this Contract. ARTICLE X. CONFIDENTIALITY ENGINEER 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 ENGINEER 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 ENGINEER, 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 ENGINEER 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 Contract, and any amendments thereto. ARTICLE XIII. NOTICE A. General. Whenever notice from ENGINEER to City or City to ENGINEER is required or permitted by this Contract 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. ENGINEER's Address. ENGINEER's address and numbers for the purposes of notice are: Black & Veatch Corporation (Engineer) Attn: Dale Cherry, P.E. 9441 LBJ Freeway, Suite 114 Dallas, TX 75243 Telephone: (214) 570 - 7000 Page 5 of 8 Black & Veatch Agreement Facsimile: (214) 570 - 7049 C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: John Turpin, P.E. P. 0. Box 2000 1625 13th Street Lubbock,Texas 79457 Telephone: (806) 775 — 2342 Facsimile: (806) 775 - 3344 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 Contract, 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 ENGINEER non -confidential studies, reports and other available data in the possession of the City pertinent to ENGINEER's Services, so long as City is entitled to rely on such studies, reports and other data for the performance of ENGINEER's Services under this Contract (the "Provided Data"). ENGINEER 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 Contract are inserted in this Contract strictly for the parties' convenience in identifying the provisions to this Contract and shall not be given any effect in construing this Contract. B. Audit. ENGINEER shall provide access to its corporate books and records to the City. The City may audit, at its expense and during normal business hours, ENGINEER's books and records with respect to this Contract between ENGINEER and City. C. Records. ENGINEER shall maintain records that are necessary to substantiate the services provided by ENGINEER. D. Assignability. ENGINEER may not assign this Contract without the prior written approval of the City. E. Successor and Assigns. This Contract binds and inures to the benefit of the City and ENGINEER, and in the case of City, its respective successors, legal representatives, and assigns, and in the case of ENGINEER, its permitted successors and assigns. F. Construction and Venue. THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, THIS CONTRACT 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 Page 6 of 8 Black & Veatch Agreement STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Contract 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 Contract 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 Contract shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Contract, and duly authorized and executed by ENGINEER and City. I. Entire Agreement. This Contract, including Exhibits "A", "B-1" and "B-2", attached hereto, contains the entire Contract between the City and ENGINEER, 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 ENGINEER and the City. K. Documents Owned by City. Any and all documents, drawings and specifications 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 Article II, above. The ENGINEER shall make copies of any and all work products for its files. L. Notice of Waiver. A waiver by either City or ENGINEER 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 ENGINEER. N. Extent of Responsibility. Engineer does not guarantee that proposals, bids or actual project costs will not vary from Engineer's opinions of probable cost or that actual schedules will not vary from Engineer's projected schedules. Engineer 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 Engineer, 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 Engineer in Exhibit A, Scope of Services. 0. 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. Engineer shall be entitled to an equitable adjustment in schedule and compensation in the event such circumstances occur. Page 7 of 8 Black & Veatch Agreement EXECUTED as of the Effective Date hereof. All 4-60i�� ,' APPROVED AS TO CONTENT: nal�ej�-- 0 f arsha Reed, P.E., Chief Operating Officer t✓ Turpin P.E., Chiu ater utilities Engineer APPROVED ,�S TO FORM: (� k�� Chad Weaver, Assistant City Attorney CITY OF LUBBOCK /# R6YWFSON,• ' BLACK & VEATCH CORP TION By: Name: Jon -15. (Dale) Cherry Title: Vice President Page 8 of 8 Black & Veatch Agreement Resolution No. 2012-80288 EXHIBIT A TO CONTRACT FOR ENGINEERING SERVICES Owner: City of Lubbock, Texas Engineer: Black & Veatch Corporation Project: Southeast Water Reclamation Plant Operations & Maintenance Manual DESCRIPTION OF SCOPE OF SERVICES This attachment contains the project description and scope of services for the development of the Plant Operations and Maintenance Manual (O&M) for the Southeast Water Reclamation Plant (SEWRP). The scope of work associated with this request includes the following: • Preparation of a revised Operation and Maintenance Manual to reflect the processes added/revised under Contract No. b. • Inclusion of data from the existing O&M manual, where appropriate and the process remains unchanged. • Use of equipment O&M manuals submitted by the equipment suppliers during construction phase. The document will be developed using Microsoft WORD and the final document is provided to the Client as both a .PDF file plus the WORD version for future 'in-house' revisions. The document would provide a description of the system, key performance indicators, process alarms and setpoints, normal valve operating position, and process control troubleshooting. The completion of the manual is anticipated at 5 months after notice to proceed is received. A draft will be provided to the Owner at 25% completion. This review of the draft will confirm the format and the approach of the manual. The Owner will review and comment on the format and content prior to completion of the manual. Three unbound hard copies will be provided for the 25% draft. A second draft will be provided to the Owner at 75% completion for final comment and review. Three unbound hard copies will be provided for the 75% draft. Upon completion of the final manual, one unbound hard copy and 3 electronic copies of the final manual will be provided. The unbound hard copy will be single - sided and reproducible quality. This O&M manual will include only information on process and control. This manual will not include administrative and record keeping information or emergency operations in place for the SEWRP. Page 1 of 1 Black & Veatch Agreement Resolution No. 2012—RO288 EXHIBIT B-1 TO CONTRACT FOR ENGINEERING SERVICES Owner: City of Lubbock, Texas Engineer: Black & Veatch Corporation Project: Southeast (Nater Reclamation Plant Operations & Maintenance Manual COMPENSATION For the services covered by this Contract, the Owner agrees to pay the Engineer as follows: A. CITY and ENGINEER have established a not -to -exceed budget of $82,500 to complete all services under this Agreement. This amount will not be without Owner authorization. B. The Engineer agrees to use its best efforts to perform the services within the billing limits stated above and in accordance with the agreed upon performance schedules. If, at any time, the Engineer has reason to believe that additional work is required outside the defined scope of work of this Agreement, the Engineer shall promptly notify the Owner to that effect. The Owner will not be obligated to reimburse the Engineer for costs incurred in performing the additional work, nor shall the Engineer be obligated to perform the additional work under the Agreement or otherwise incur costs in excess of the amount stated above, unless and until the Owner notifies the Engineer in writing that the billing limits have been increased, and has specified in such notice revised billing limits for the services in question. When and to the extent that the billing limits have been increased, any costs incurred by the Engineer, in excess of the billing limits prior to their increase shall be allowable to the same extent as if such costs had been incurred after the increase in the billing limits was approved. C. Monthly payments shall be made to the Engineer by the Owner based on the Engineer's statement.. The statement shall indicate amount due proportionate to the progress of the work as reported by the Engineer. The statement shall be itemized to indicate the amount of work performed and the associated reimbursable expenses and subcontract costs. D. The entire amount of each statement shall be due and payable upon receipt by the Owner. In the event Owner disputes any invoice item, Owner shall give Engineer written notice of such disputed item within ten (10) days after receipt of such invoice and shall pay to Engineer the undisputed portion of the invoice according to the provisions hereof. If Owner fails to pay any invoiced amounts when due, interest will accrue on each unpaid amount at the rate of one and one-half percent (1 1/7%) per month, or the maximum amount allowed by law, if less, from the date due until paid according to the provisions of this Agreement. Interest shall not be charged on any disputed invoice item finally resolved in Owner's favor. Payment of interest shall not excuse or cure any default or delay in payment of amounts due. E. It is understood and agreed that the maximum billing is based on the start of the services being authorized not later than the date given below. If start of services is not authorized by the date given, it is understood and agreed that the fixed fees and total costs will be adjusted accordingly by a supplement to this Agreement. The authorization date is as follows: Item Black & Veatch Agreement Date Page 1 of 2 O&M Manual On or before Augusta, 2012 It is understood and agreed that if the project, after being started, is stopped for the Owner's convenience for more than 365 days then the Owner will pay the Engineer a restart fee equal to 10 percent of the original contract amount. All payments for project suspension and restart will be in addition to the original contract amount cost plus fixed fee billing limit. G. It is understood and agreed: 1. That the Engineer shall start the performance of the services within ten days of receipt of notice to proceed and shall submit the documents covering them to the Owner for review as described in Attachedment A. 2. That the Engineer shall keep records on the basis of generally accepted accounting practice of costs and expenses and which records shall be available to inspection at reasonable times. Page 2 of 2 Black & Veatch Agreement EXHIBIT B-2 TO CONTRACT FOR ENGINEERING SERVICES Hybrid Operations Manual File: City of Lubbock, TX Estimator: Gary W. Neun Date. 1/10/2012 Secondary Writer Primary Writer [off-site] Technical Review Graphics Technical Editor Total Hours Estimated Man -Hours 79 608 60 122 79 948 Hourly Rate $176.00 $59.08 $176.00 $112.00 $89.60 Estimated Cost $13,911 $35,921 $10,630 $13,619 $7,082 Subtotal Document Production Expenses Total (Rounded) $13,910 $35,920 $10,630 $13,620 $7,080 $81,160 $1,340 $82,500