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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 ii 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 11) 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 —13— 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 —14— 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: —15— (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] —16— 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: ��