HomeMy WebLinkAbout10658RESOLUTION NO. 10658
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, AND KUMAR AND ASSOCIATES, INC, FOR THE
EVIRONMENTAL SERVICES — PHASE I ASSESSMENT FOR REAL ESTATE ACQUISITION,
PROJECT NO. 06 -015, IN THE AMOUNT OF $3,950, AND AUTHORIZING THE PRESIDENT OF
CITY COUNCIL TO EXECUTE SAME
WHEREAS, proposals were received for the Environmental Services — Phase I Assessment
for Real Estate, Project No. 06 -015 and have been examined; and
WHEREAS, the proposal from Kumar and Associates, Inc. was determined to be
acceptable for providing the Environmental Services for the project.
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that:
SECTION 1.
The Kumar and Associates, Inc. is hereby accepted and approved as the consultants to
prepare the Environmental Services — Phase I Assessment for Real Estate, Project No. 06 -015.
SECTION 2.
An Agreement dated February 27, 2006, a copy of which is attached hereto and made a
part hereof, after having been approved as to form by the City Attorney, by and between Pueblo, a
Municipal Corporation, and Kumar and Associates, Inc., is hereby approved.
SECTION 3.
Fund.
Funds in the amount of $3,950 for this project will be provided from the Police Building
SECTION 4.
The President of the City Council is hereby authorized to execute the said Agreement on
behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto
and attest the same.
INTRODUCED February 27, 2006
BY Randy Thurston
Coun
APPROVED: ,
President of City Council
ATTESTED BY:
CITY CLERK
Background Paper for Proposed
Resolution
XLO. 4 /0&S8'
AGENDA ITEM #
DATE: FEBRUARY 27, 2006
DEPARTMENT: COMMUNITY DEVELOPMENT /JIM MUNCH
PLANNING DEPARTMENT /JIM MUNCH
TITLE
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO,
A MUNICIPAL CORPORATION, AND KUMAR AND ASSOCIATES, INC, FOR THE
EVIRONMENTAL SERVICES — PHASE I ASSESSMENT FOR REAL ESTATE
ACQUISITION, PROJECT NO. 06-015, IN THE AMOUNT OF $3,950, AND
AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
ISSUE
Should City Council approve an Agreement for
Associates, Inc. for the completion of the
Assessment for Real Estate, Project No. 06 -015?
Professional Services with Kumar and
Environmental Services — Phase I
Approve the Resolution.
The City has solicited Request for Proposals (RFP) to provide Environmental Service to
complete a Phase I Assessment study on real estate property. The City is in the
process of acquiring two private parcels of land located on the eastside of Main Street,
between "C° and the vacated "E° Street. The first site is known as Santangelo
Woodworking, located at 120 South Main. The second site is known as La Tolteca
Foods, located at 222 South Main Street. On February 15, 2006, the City received five
(15) proposals from reputable companies vying to complete the study. On February 16,
2006, the selection committee, which was made up of Doug Fitzgerald, Scott Hobson,
Tim Williams and Steven Meier, reviewed the proposals and selected Kumar and
Associates, Inc. to complete the study.
FINANCIAL IMPACT
The funds in the amount of $3,950 will be paid from the Police Building Funds to
complete the project.
AGREEMENT
FOR PROFESSIONAL ENVIRONMENTAL SERVICES
THIS AGREEMENT is made and entered this - ; V( 6- day ofFebruary, 2006, by and between
the City of Pueblo, a Municipal Corporation ( "Client ") and Kumar and Associates, 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 the Request for Proposals for Environmental Services — Phase I
Assessment for Real Estate - Project # 06 -015 (the "RFP ") and Schedule 1 attached hereto and
incorporated herein by reference (collectively, the RFP and Schedule 1 services are referred to as 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 fiilly 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- consuhams 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, whether now existing or
hereafter enacted.
(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
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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 therefore
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 $3,950 computed as set forth in Schedule 1.
(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.
(d) No compensation shall be paid to Consultant for services required and expenditures
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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 information reasonably 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 may
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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 ofthis
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 arrangement 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) Unless otherwise stated in the RFP or Schedule 1, Consultant acknowledges that the
Project will require access to property not under the control of Client but of third parties. Unless
otherwise stated in the RFP or Schedule 1, Consultant and Consultant's employees and consultants
shall, at Consultant's expense, obtain all additional necessary approval and clearances required for
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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
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 there from; 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:
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(i) Workers' Compensation Insurance complying with statutory requirements in
Colorado and in any other state or states where the work is performed.
(ii) Comprehensive General and Automobile Liability Insurance with limits not less
than Six Hundred Thousand and No /100 Dollars ($600,000.00) per person and occurrence for
personal injury, including but not limited to death and bodily injury, and Six Hundred Thousand and
No/ 100 Dollars ($600,000.00) per occurrence for property damage.
(iii) Professional Liability Insurance with coverage ofnot less than $1,000,000, and
with a deductible acceptable to Client.
(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 sub - consultants or subcontractors, Consultant shall contractually bind
each of its sub - consultants 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
[RESERVED]
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SECTION 11. MISCELLANEOUS
(a) Notices Any and all notices or other communications requ 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: Steven Meier. City of Pueblo.
Community Planning Department, 211 East "D" Street, Pueblo, Colorado 81003 or to Consultant at:
Bruce E. Berends, P.E., Kumar & Associates, Inc., 6735 Kumar Heights, Colorado Springs, CO
80918. 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 ofConsultant and by Client
in accordance with the requirements of Section 4(b) of this Agreement or upon authorization of
Client's governing board.
(e) Choice ofLaw 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) Severabilitv If any provision ofthis 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.
—17—
(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 WHEREOF, the parties hereto have made and executed this Agreement as of
the day and year first above written.
ATTEST:
City C k
CITY OF PUEBLO,
A MUNICIPAL CORPORATION
By
President of the City Council
CONSULTANT
Name: �UY y]G4y.� 5 nn eJ� 1„t�•
By
Name: __13 r ✓off t'. ltiP�v S
Title: ��