HomeMy WebLinkAbout8135RESOLUTION NO. 8135
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION, AND
OCCUPATIONAL HEALTH TECHNOLOGIES, INC., FOR
ENVIRONMENTAL ASSESSMENT SERVICES RELATING TO
THE EL PUEBLO PROJECT AND AUTHORIZING THE
PRESIDENT OF COUNCIL TO EXECUTE SAME
that:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PUEBLO, COLORADO,
SECTION 1:
An agreement dated May 27, 1997, between the City of Pueblo, A
Municipal Corporation and Health Occupational Technologies, Inc., of which a
copy is attached hereto and on file at the office of the City Clerk, having
been approved as to form by the City Attorney, is hereby approved.
SECTION 2:
The President of the City Council is hereby authorized to execute and
deliver said Contract on behalf of the City of Pueblo, a Municipal Corporation,
and the City Clerk shall affix the Seal of the City thereto and attest same.
SECTION 3:
Funds are available from Account No. 04 -1995- 400 -0 -40 -6730.
SECTION 4:
This Resolution shall become effective upon final passage.
INTRODUCED: MAY 27, 1996
BY: Al Gurule
COUNCILPERSON
APPROVED:
PRESIDE. OF C6TY COUNCIL
ATTEST:
6ITY CLERK
AGREEMENT
FOR PROFESSIONAL ENVIRONMENTAL SERVICES
THIS AGREEMENT is made and entered this 27th day of May 5 1997,
by and between the City of Pueblo, a Municipal Corporation ( "Client ") and occupational
Health Techno Inc. ( " Consultant ") for Consultant to render
professional environmental services, including environmental assessments services, for Client with
respect to, or in connection with, possible acquisition of certain real property by City, hereinafter
referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
SECTION 1. GENERAL AND SCOPE OF SERVICES
(a) Consultant shall satisfactorily perform the professional environmental services for
the Project described in more detail in Schedule 1 attached hereto and incorporated herein by
reference (the "Basic Services "). Such services shall include all usual and customary professional
environmental services incident to the Basic Services.
(b) To the extent Consultant performs any of the Basic Services or other authorized work
through subconsultants or subcontractors, Consultant shall be and remain as fully responsible for
the full performance and quality of services performed by such subconsultants or subcontractors as
it is for services performed directly by Consultant.
(c) In the event Client has secured access for Consultant to the Project site through a
right of entry agreement, access agreement, letter of consent or other instrument, Consultant shall
fully comply with and be subject to the terms and conditions set forth therein. A copy of any such
instrument will be provided to Consultant upon request.
SECTION 2. CONSULTANT'S RESPONSIBILITIES
(a) Consultant shall be responsible for the professional quality, technical accuracy and
timely completion of Consultant's work, including that performed by Consultant's sub - consultants
and subcontractors, and including drawings, reports, sampling, testing and other services,
irrespective of Client's approval of or acquiescence in same.
(b) Consultant shall be responsible, in accordance with applicable law, to Client for all
loss or damage to Client caused by Consultant's negligent act or omission; except that Consultant
hereby irrevocably waives and excuses Client and Client's attorneys from compliance with any
requirement to obtain a certificate of review as a condition precedent to commencement of an action,
including any such requirements set forth in Section 13 -20 -602, C.R.S. or similar statute.
(c) Consultant shall be completely responsible for the safety of Consultant's employees
in the execution of work under this Agreement and shall provide all necessary safety and protective
equipment for said employees.
(d) Consultant acknowledges that time is of the essence with respect to the performance
and completion of its services under this Agreement. Consultant shall adhere to and commence and
complete its work in accordance with any schedule incorporated into this Agreement, or any
schedule attached hereto, and, with respect to any work beyond or in addition to the Basic Services,
Consultant shall expeditiously perform such additional work according to any schedule therefor
agreed to by the parties. In the event any schedule is incorporated into this Agreement or attached
to this Agreement, Consultant acknowledges that such schedule has accounted for all reasonably
anticipated delays, including those inherent in the availability of tools, sampling equipment,
supplies, labor, testing agencies and utilities required for the work, the availability of information
which must be obtained from any third parties, and all conditions to access the Project site and other
public or private facilities, including any restrictions set forth in any right of entry agreement,
access agreement, letter of consent or other instrument granting the City and /or Consultant access
to the Project site or other property involved in the work.
(e) Before undertaking any work or incurring any expense which Consultant considers
beyond or in addition to the Scope of Work described in Schedule 1 or otherwise contemplated by
the terms of this Agreement, Consultant shall advise Client in writing that (i) Consultant considers
the work beyond the scope of this Agreement, (ii) the reasons that Consultant believes the out of
scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such
work. Consultant shall not proceed with any out of scope or additional work until authorized in
writing by Client. The compensation for such authorized work shall be negotiated, but in the event
the parties fail to negotiate or are unable to agree as to compensation, then Consultant shall be
compensated for its direct costs and professional time at the rates set forth in Schedule 2 attached
hereto.
SECTION 3. FEES FOR SERVICES; PAYMENT
(a) Client will pay to Consultant as compensation for all services required to be
performed by Consultant under this Agreement, except for services for additional work or work
beyond the scope of this Agreement, an amount not to exceed $ 4, 220.00 computed as set forth
in Schedule 2.
(b) Consultant shall submit periodic, but not more frequently than monthly, applications
for payment, aggregating to not more than the maximum amount set forth in subparagraph (a) of
this Section, for actual professional services rendered and for reimbursable expenses incurred.
Applications for payment shall be submitted based upon the hourly rates and expense reimbursement
provisions set forth in Schedule 2 attached hereto, and shall contain appropriate documentation that
such services have been performed and such expenses incurred. Thereafter, Client shall pay
Consultant for the amount of the application within 40 days of the date such application is received.
(c) No separate or additional payment shall be made for profit, overhead, local telephone
expenses, lodging, routine photocopying, computer time, secretarial or clerical time or similar
expenses unless otherwise provided and listed in Schedule 2.
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(d) No compensation shall be paid to Consultant for services required and expenditures
incurred in correcting Consultant's mistakes or negligence.
(e) Compensation for authorized work beyond the scope of this Agreement shall be
governed by the provisions of Section 2(e).
(f) In the event services under this Agreement are phased and to be performed in more
than one fiscal year or are subject to annual appropriation, Consultant acknowledges that funds only
in the amount of initial appropriation are available and it shall confirm availability of funds before
proceeding with work exceeding initial and subsequent annual appropriations.
SECTION 4. CLIENT'S RESPONSIBILITIES
(a) Client agrees to advise Consultant regarding Client's Project requirements and to
provide all relevant information, surveys, data and previous reports accessible to Client which
Consultant may reasonably require.
(b) Client shall designate a Representative to whom all communications from Consultant
shall be directed and who shall have limited administrative authority on behalf of Client to receive
and transmit information and make decisions with respect to the Project and activities for which
Consultant is to provide services. Said representative shall not, however, have authority to bind
Client as to matters of governmental policy or fiscal policy, nor to contract for additions or
obligations exceeding a value which is the lesser of $2,500 or 5% of the maximum contract price.
(c) Client shall examine all documents presented by Consultant, and render decisions
pertaining thereto within a reasonable time. The Client's approval of any drawings, specifications,
reports, documents, applications or other materials or product furnished hereunder shall not in any
way relieve Consultant of responsibility for the professional adequacy of its work.
(d) Client shall perform its obligations and render decisions within a reasonable time
under the circumstances presented. Based upon the nature of Client and its requirements, a period
of 20 days shall be presumed reasonable for any minor decision not involving policy decision or
significant financial impact. A period of 46 days shall be presumed reasonable for Client to act with
respect to any matter involving policy or significant financial impact. The above periods of
presumed reasonableness shall be extended where inform ation'reasonab ly required by Consultant
or Client is not within the custody or control of Client but must be procured from others.
SECTION 5. TERMINATION
(a) Client reserves the right to terminate this Agreement and Consultant's performance
hereunder, at any time upon written notice, either for cause or for convenience. Upon such
termination, Consultant and its sub - consultants and subcontractors shall cease all work and stop
incurring expenses, and shall promptly deliver to Client all data, drawings, specifications, reports,
plans, calculations, summaries and all other information, documents and materials as Consultant
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may have accumulated in performing this Agreement, together with all finished work and work in
progress.
(b) Upon termination of this Agreement for events or reasons not the fault of Consultant,
Consultant shall be paid at the rates specified in Schedule 2 for all services rendered and reasonable
costs incurred to date of termination; together with any reasonable costs incurred within 10 days of
termination provided such latter costs could not be avoided or were incurred in mitigating loss or
expenses to Consultant or Client. In no event shall payment to Consultant upon termination exceed
the maximum compensation provided for complete performance in Section 3(a) of this Agreement.
(c) In the event termination of this Agreement or Consultant's services is for breach of
this Agreement by Consultant, or for other fault of Consultant including but not limited to any
failure to timely proceed with work, or to pay its employees and consultants, or to perform work
according to the highest professional standards, or to perform work in a manner deemed satisfactory
by Client's Representative, then in that event, Consultant's entire right to compensation shall be
limited to the lesser of (a) the reasonable value of completed work or (b) payment at the rates
specified in Schedule 2 for services satisfactorily performed and reimbursable expenses reasonably
incurred, prior to date of termination.
(d) Consultant's professional responsibility for its completed work and services shall
survive any termination.
SECTION 6 ENVIRONMENTAL CONDITIONS; SITE ACCESS
(a) Client acknowledges that, with respect to the work to be performed hereunder,
Consultant has not created nor contributed to the creation or existence of any hazardous material or
toxic substances or conditions encountered at or upon the Project or work site or Client's property.
Nothing in this Agreement is intended, nor should it be construed, to render Consultant an owner,
generator, disposer or transporter of any hazardous material or toxic substances encountered at the
Project or work site or Client's property, nor an "arranger" for the storage, disposal or transport of
any hazardous material or toxic substance stored at or removed from the Project or work site or
Client's property.
(b) Notwithstanding anything in Section 6(a) above, Consultant (and its sub - consultants
and subcontractors) shall be and remain responsible for the proper holding, safekeeping and disposal
of all water, soil or other samples that Consultant, its sub - consultants and subcontractors may take
or remove from the Project or work site or Client's property, or otherwise obtain during the course
of Consultant's work for Client.
(c) Consultant acknowledges that the Project will require access to property not under
the control of Client but of third parties. Consultant and Consultant's employees and consultants
shall, at Consultant's expense, obtain all additional necessary approval and clearances required for
access to such property. Client shall assist Consultant in obtaining access to such property at
reasonable times but makes no warranty or representation whatsoever regarding access to such
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property. Notwithstanding the foregoing, Consultant understands and agrees that entry to the
Project site by Consultant may be subject to compliance by Consultant with the terms and conditions
of an access agreement in accordance with section 1(c) of this Agreement.
SECTION 7. USE OF DOCUMENTS
(a) Plans, drawings, designs, specifications, data, sampling analysis, reports and all other
documents prepared, obtained or provided by Consultant hereunder shall become the sole property
of Client, subject to any applicable federal grant requirements, and Client shall be vested with all
rights therein of whatever kind and however created, whether by common law, statute or equity.
Client shall have access at all reasonable times to inspect and make copies of all notes, designs,
drawings, specifications, and all other technical data or other documents pertaining to the work to
be performed under this Agreement. In no event shall Consultant publish work product developed
pursuant to this Agreement except (i) with advance written consent of Client and (ii) in full
compliance with the requirements of this Agreement.
(b) Unless advised otherwise in writing by Client, the work performed by Consultant for
Client, and all data, reports, drawings, analysis, test results and other documents prepared or
obtained by Consultant, shall at all times be and remain confidential. Consultant and Consultant's
sub - consultants and subcontractors shall maintain in confidence all such data, reports, drawings,
analysis, test results, and other documents prepared or obtained by Consultant. Except as required
by express provision of law and after not less than 10 days prior notice to Client, Consultant shall
not report to any federal, state or local governmental agencies (other than Client's Representative)
any conditions encountered in the work, nor any data, reports, drawings, analysis, test results or
other documents prepared or obtained by Consultant in connection with the work. Client shall be
solely responsible for notifying the appropriate federal, state or local agencies, as required by law,
or otherwise to disclose, in a timely manner, any information that may be necessary to prevent any
danger to health, safety or the environment.
SECTION 8. INSURANCE AND INDEMNITY
(a) Consultant agrees that it shall procure and will maintain during the term of this
Agreement, such insurance as will protect it from claims under workers' compensation acts, claims
for damages because of personal injury including bodily injury, sickness or disease or death of any
of its employees or of any person other than its employees, and from claims or damages because of
injury to or destruction of property including loss of use resulting therefrom; and such insurance will
provide for coverage in such amounts as set forth in subparagraph (b) of this Section.
(b) The minimum insurance coverage which Consultant shall obtain and keep in force
is as follows:
(i) Workers' Compensation Insurance complying with statutory requirements in
Colorado and in any other state or states where the work is performed.
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Five (6) Comprehensive General and Automobile Liability Insurance with limits not
less than flundred Thousand and No /100 Dollars ($500,000.00) per person and occurrence for
personal injury, including but not limited to death and bodily injury, and" Hundred Thousand and
No /100 Dollars ($ 5.00000.00) per occurrence for property damage.
(c) Consultant agrees to hold harmless, defend and indemnify Client from and against
any liability to third parties, arising out of negligent acts or omissions of Consultant, its employees,
subcontractors and consultants.
SECTION 9. SUBCONTRACTS.
(a) Client acknowledges that Consultant is the prime contractor and the only party with
whom Client has a contractual relationship under this Agreement. To the extent Consultant
performs any Project activities through subconsultants or subcontractors, Consultant shall
contractually bind each of its subconsultants and subcontractors by subcontract agreement to all of
the terms of this Agreement which are for the benefit of Client, and Client shall be a third party
beneficiary of those subcontract provisions.
(b) Consultant shall indemnify and defend Client from all claims and demands for
payment for services provided by subcontractors of Consultant.
(c) Consultant acknowledges that, due to the nature of the services to be provided under
this Agreement, the Client has a substantial interest in the personnel and consultants to whom
Consultant assigns principal responsibility for services performed under this Agreement.
Consequently, Consultant represents that it has selected and intends to employ or assign the key
personnel and consultants identified in its proposal submitted to Client prior to execution of this
Agreement, if any, to induce Client to enter this Agreement. Consultant shall not change such
consultants or key personnel except after giving notice of a proposed change to Client and receiving
Client's consent thereto. Consultant shall not assign or reassign Project work to any person to whom
Client has reasonable objection.
SECTION 10. REQUIRED FEDERAL PROVISIONS.
(a) Consultant understands that Client may be funding the Project in whole or part with
funds provided pursuant to Grant Agreement STE -MO86 -020 and applicable federal regulations,
or may acquire the real property which is the Project site with the assistance of CDBG grant
assistance. Consultant agrees it is subject to and shall comply with all applicable provisions of the
Grant Agreement, the Act under which the grant award has been made, and applicable regulations.
(b) Contractor shall comply with all applicable Federal, State, and local laws applicable
to its activities, 49 CFR Part 18, "Uniform Administrative Requirements for Grants and Cooperative
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Agreements to State and Local Governments ;" OMB Circular A -87, "Cost Principles for State and
Local Governments;" 49 CFR Part 90, "Audits of State and Local Governments;" 49 CFR Part 29,
" Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide
Requirements for Drug Free Workplace (Grants);" 49 CFR Part 20, "New Restrictions on
Lobbying;" and the Department of Transportation regulations concerning nondiscrimination in
federally assisted programs, 49 CFR Part 21. Consultant shall also comply with all applicable
requirements contained in 24 CFR, Part 570.
(c) All records with respect to any matters covered by this Agreement shall be available
for inspection by Client, the U.S. Department of Transportation (the "Department "), the Colorado
Department of Transportation (the "State "), the U.S. Department of Housing and Urban
Development ( "HUD ") and the Inspector General of each federal department with an interest in the
subject matter of this Agreement, at any time during normal business hours and as often as Client,
the State, the Department, HUD or such Inspector General deems necessary, to audit, examine and
make excerpts or transcripts of relevant information, and otherwise to perform its official functions
or duties.
SECTION 11. MISCELLANEOUS
(a) Notices Any and all notices or other communications required or permitted by this
Agreement or by law to be served on or given to either Consultant or Client by the other party shall
be in writing and shall be deemed duly served and given when personally delivered to the party to
whom it is directed, or in lieu of such personal service, when deposited in the United States mail,
first -class postage prepaid, addressed to the Client, Attention: William J. Zwick, Department o f
Planning, 211 East "D" Street, p„Pti.1n CO 81003
or to Consultant at: Thomas F Antonson, OrrUpar; nasal Thal th Tarhnn1 n ies Tnc. _ 2802 Janitell
Tha Suite A, Colorado springs, CO 80903 -4103 Either party may change its address for the
purpose of this paragraph by giving written notice of such change to the other party in the manner
provided in this paragraph.
(b) Entire Agreement This instrument contains the entire agreement between Consultant
and Client respecting the work to be performed by Consultant, and any other written or oral
agreement or representation respecting such work or the duties of either Client or Consultant in
relation thereto not expressly set forth in this instrument and its attachments is null and void.
(c) Successors and Assigns This Agreement shall be binding on the parties hereto and
on their successors and assigns; provided, however, neither this Agreement, nor any part thereof,
nor any moneys due or to become due hereunder to Consultant may be assigned by it without the
written consent of Client.
(d) Amendments No amendment to this Agreement shall be made nor be enforceable
unless made by written amendment signed by an authorized representative of Consultant and by
Client in accordance with the requirements of Section 4(b) of this Agreement or upon authorization
of Client's governing board.
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(e) Choice of Law This Agreement shall be governed and interpreted in accordance
with the laws of the State of Colorado. Any unresolved dispute arising from or concerning any
breach of this Agreement shall be decided in a state court of competent jurisdiction located in
Pueblo, Colorado.
(f) Equal Employment Opportunity In connection with the performance of this
Agreement, neither Consultant nor its consultants shall discriminate against any employee or
applicant for employment because of race, color, religion, sex, national origin, disability or age.
Consultant shall endeavor to insure that applicants are employed, and that employees are treated
during employment without regard to their race, color, religion, sex, national origin, disability or
age.
(g) Severability If any provision of this Agreement is determined to be directly contrary
to and prohibited by law or the requirements of any federal grant or other Project funding source,
then such provision shall be deemed void and the remainder of the Agreement enforced.
(h) Signatures The persons signing this Agreement on behalf of each party represent
and warrant that such persons and their respective party have the requisite power and authority to
enter into, execute and deliver this Agreement and that this Agreement is a valid and legally binding
obligation of such party enforceable against it in accordance with its terms.
IN WITNESS WfIEREOF, the parties hereto have made and executed this Agreement as of
the day and year first above written.
CITY OF PUEBLO,
ATTEST: A MUNICIPAL CORPORATION
B
City Clerk President oft e City Council
CONSULTANT
Name: #-e.+ /k TecA . Luc.
By
Name: 114 0 . , * AS
Title: - pre" ' LSat - f
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7:\ CITY \PLANNING\ELPUEBLO\PROFSRVS.WPD -o
MAY -2 1 —97 WED 1 Z5 :!5'9
Occupational Health Technologies, Inc.
Office: 171 University Circle
Pueblo, CO 81005 • (719) 566 -0422
Lab: 2802 Janitell Road, Suite A
Colorado Springs, CO 80906 -4103 • (719) 540 -8511
FAX (719) 540 -8541
ADDENDUM
Schedule I - Scone of Services:
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To perform a professional environmental site assessment to include soil, ground water, ACM and LBP
testing for the proposed acquisition of the two properties in the downtown area. This assessment will include:
(1) Phase 11 hnvironmental Site Assessment for one property at 207 N. Victoria Avenue consisting of
5,500 square foot concrete lot with one structure which has had a past land -use history of automotive related uses.
All performance shall meet or exceed the standards set forth by the American Society for Testing and
Materials (ASTM), Designation: E 1527 - 93, Standard Practice for Environmental Site Assessment: Phase
11 Environmental Site Assessment Process. Include an estimate of abatement costs if underground tank(s) or
contaminants are found.
(2) State- Certified Asbestos and Lead Based Paint Inspection for one structure, approx. 2448SF with
a 1,5 basement on a 5,500 SF lot, at 207 N Victoria Avenue and one structure, approx. 920 SF on a 1,200 SF
lot, at 211 N Victoria Avenue. Services shall include the identification of possible ACM, LBP and other
significant hazards; appropriate abatement according to ASTM standards; and cost estimate.
Schedule It - Fee and Fee Schedule:
Perform a Phase tI Site Assessment at 207 N, Victoria to include soil and groundwater testing, an asbestos
building inspection and a lead based paint survey for approximately 5,500 square. This includes drilling and
subsurface soil sampling, groundwater sampling, asbestos sampling and lead based paint sampling or testing with
an XRF spectrum analyzer at the site not including sample analytical rates ..................
$2450.00
*"Sample analysis of soils and groundwater for gasoline
range hydrocarbons and BTEX, each sample .. ...............................
$95.00
* *Sample analysis for asbestos, each sample .......... .........................$11.50
* *Sample analysis for lead based paint, each sample ..............................
$15.00
* *Perform a asbestos building inspection and a lead based
paint survey at 211 North Victoria using state of colorado
certified asbestos building inspector and report ...............................
$600.00
* *Sample analysis for asbestos, each sample .......... .........................$11.50
* *Sample analysis for lead based paint, each sample ..... .........................S15.00
* *Should this project become more involved as a result of
conditions our technician fee would require a minimum of
a half day rate at (incl. travel) ............ ...............................
$200.00
or a full 8 hour day rate of $50.00 per hour or per day .........................
$400.00
Schedule III - Schedule of Performance:
Work on the proposal may start as soon as June 16, 1997, and will require no more than thirty (30)
calendar days for completion.
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