HomeMy WebLinkAboutWinzler & Kelly 2011-08-31AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES This Agreement, made and entered into thisj~Lrcdlay of , 2011 ("Effective Date"), by and between the CITY OF UKIAH CALIFORNIA hereinafter ferred to as "City" and Winzler & Kelly, a corporation, organized and in good standing under the laws of the state of California, hereinafter referred to as "Consultant". RECITALS This Agreement is predicated on the following facts: a. City requires consulting services related to the preparation of a copper implementation plan for the Waste Water Treatment Plant b. Consultant represents that it has the qualifications, skills, experience and properly licensed to provide these services, and is willing to provide them according to the terms of this Agreement. C. City and Consultant agree upon the Scope-of-Work and Work Schedule attached hereto as Attachment "A", describing contract provisions for the project and setting forth the completion dates for the various services to be provided pursuant to this Agreement. TERMS OF AGREEMENT 1.0 DESCRIPTION OF PROJECT 1.1 The Project is described in detail in the attached Scope-of-Work (Attachment "A"). 2.0 SCOPE OF SERVICES 2.1 As set forth in Attachment "A". 2.2. Additional Services. Additional services, if any, shall only proceed upon written agreement between City and Consultant. The written Agreement shall be in the form of an Amendment to this Agreement. 3.0 CONDUCT OF WORK 3.1 Time of Completion. Consultant shall commence performance of services as required by the Scope-of-Work upon receipt of a Notice to Proceed from City and shall complete such services within 30 days from receipt of the Notice to Proceed. Consultant shall complete the work to the City's reasonable satisfaction; even if contract disputes arise or Consultant contends it is entitled to further compensation. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. For the performance of the professional services of this Agreement, Consultant shall be compensated on a time and expense basis not to exceed a guaranteed maximum dollar amount of $10,000. Labor charges shall be based upon hourly billing rates for the various classifications of personnel employed by Consultant to perform the Scope of Work as set forth in the attached Attachment B, Std - ProfSvcsAgreement- November 20, 2008 PAGE I OF 7 which shall include all indirect costs and expenses of every kind or nature, except direct expenses. The direct expenses and the fees to be charged for same shall be as set 1011.11 it 11 Attachment B. Consultant shall complete the Dope of vVIork fo he not-to- exceed guaranteed maximum, even if actual time and expenses exceed that amount. 4.2 Changes. Should changes in compensation be required because of changes to the Scope-of-Work of this Agreement, the parties shall agree in writing to any changes in compensation. "Changes to the Scope-of-Work" means different activities than those described in Attachment "A" and not additional time to complete those activities than the parties anticipated on the date they entered this Agreement. 4.3 Sub-contractor Payment. The use of sub-consultants or other services to perform a portion of the work of this Agreement shall be approved by City prior to commencement of work. The cost of sub-consultants shall be included within guaranteed not-to-exceed amount set forth in Section 4.1. 4.4 Terms of Payment. Payment to Consultant for services rendered in accordance with this contract shall be based upon submission of monthly invoices for the work satisfactorily performed prior to the date of the invoice less any amount already paid to Consultant, which amounts shall be due and payable thirty (30) days after receipt by City. The invoices shall provide a description of each item of work performed, the time expended to perform each task, the fees charged for that task, and the direct expenses incurred and billed for. Invoices shall be accompanied by documentation sufficient to enable City to determine progress made and to support the expenses claimed. 5.0 ASSURANCES OF CONSULTANT 5.1 Independent Contractor. Consultant is an independent contractor and is solely responsible for its acts or omissions. Consultant (including its agents, servants, and employees) is not the City's agent, employee, or representative for any purpose. It is the express intention of the parties hereto that Consultant is an independent contractor and not an employee, joint venturer, or partner of City for any purpose whatsoever. City shall have no right to, and shall not control the manner or prescribe the method of accomplishing those services contracted to and performed by Consultant under this Agreement, and the general public and all governmental agencies regulating such activity shall be so informed. Those provisions of this Agreement that reserve ultimate authority in City have been inserted solely to achieve compliance with federal and state laws, rules, regulations, and interpretations thereof. No such provisions and no other provisions of this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Consultant and City. Consultant shall pay all estimated and actual federal and state income and self- employment taxes that are due the state and federal government and shall furnish and pay worker's compensation insurance, unemployment insurance and any other benefits required by law for himself and his employees, if any. Consultant agrees to indemnify and hold City and its officers, agents and employees harmless from and against any claims or demands by federal, state or local government agencies for any such taxes or benefits due -but not paid by Consultant, including the legal costs associated with defending against any audit, claim, demand or law suit. Std - ProfSvcsAgreement- November 20, 2008 PAGE 2 OF 7 Consultant warrants and represents that it is a properly licensed professional or professional organization with a substantial investment in its business and that it maintains its own offices acid staff which it will use in performing under this Agreement. 5.2 Conflict of Interest. Consultant understands that its professional responsibility is solely to City. Consultant has no interest and will not acquire any direct or indirect interest that would conflict with its performance of the Agreement. Consultant shall not in the performance of this Agreement employ a person having such an interest. If the City Manager determines that the Consultant has a disclosure obligation under the City's local conflict of interest code, the Consultant shall file the required disclosure form with the City Clerk within 10 days of being notified of the City Manager's determination. 6.0 INDEMNIFICATION 6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2 Consultant shall not begin work under this Agreement until it procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage - Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. 4. Errors and Omissions liability insurance appropriate to the consultant's profession. Architects' and engineers' coverage is to be endorsed to include contractual liability. B. Minimum Limits of Insurance Consultant shall maintain limits no less than: General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. Std - ProtSvcsAgreement- November 20, 2008 PAGE 3 OF 7 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and + Emp 00 ivy'ers Liability " limits of 1 Qnn, 000 nnn per . acciu ;Aeii 4. Errors and Omissions liability: $1,000,000 per occurrence. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the Consultant, products and completed operations of the Consultant, premises owned, occupied or used by the Consultant, or automobiles owned, hired or borrowed by the Consultant for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope-of-protection afforded to the City, its officers, officials, employees or volunteers. b. The Consultant's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from Consultant's performance of the work, pursuant to this Agreement. Std - ProfSvesABreement- November 20, 2008 PAGE 4 OF 7 3. Professional Liability Coverage If written on a claims-made basis, the retroactivity date shall be the effective date of this Agreement. The policy period shall extend from 8/17/2011 to project completion. 4. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A- for financial strength, AA for long-term credit rating and AMB-1 for short-term credit rating. F. Verification of Coverage Consultant shall furnish the City with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. Where by statute, the City's Workers' Compensation - related forms cannot be used; equivalent forms approved by the Insurance Commissioner are to be substituted. All Certificates and Endorsements are to be received and approved by the City before Consultant begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If Consultant fails to provide the coverages required herein, the City shall have the right, but not the obligation, to purchase any or all of them. In that event, the cost of insurance becomes part of the compensation due the contractor after notice to Consultant that City has paid the premium. G. Subcontractors Consultant shall include all subcontractors or sub-consultants as insured under its policies or shall furnish separate certificates and endorsements for each sub- contractor or sub-consultant. All coverage for sub-contractors or sub-consultants shall be subject to all insurance requirements set forth in this Paragraph 6.1. 6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, Consultant agrees, for the full period of time allowed by law, surviving the termination of this Agreement, to indemnify the City for any claim, cost or liability that arises out of, or pertains to, or relates to any negligent act or omission or the willful misconduct of Consultant in the performance of services under this contract by Consultant, but this indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by the City, or arising from the active negligence of the City. Std - ProfSvcsAgreemem- November 20, 2008 PAGE 5 OF 7 "Indemnify," as used herein includes the expenses of defending against a claim and the payment of any settlement or judgment arising out of the claim. Defense costs include all costs associated with defending the claim, including, but not limited to, the fees of attorneys, investigators, consultants, experts and expert witnesses, and litigation expenses. References in this paragraph to City or Consultant, include their officers, employees, agents, and subcontractors. 7.0 CONTRACT PROVISIONS 7.1 Ownership of Work. All documents furnished to Consultant by City and all documents or reports and supportive data prepared by Consultant under this Agreement are owned and become the property of the City upon their creation and shall be given to City immediately upon demand and at the completion of Consultant's services at no additional cost to City. Deliverables are identified in the Scope-of-Work, Attachment "A". All documents produced by Consultant shall be furnished to City in digital format and hardcopy. Consultant shall produce the digital format, using software and media approved by City. 7.2 Governinq Law. Consultant shall comply with the laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. The interpretation and enforcement of this Agreement shall be governed by California law and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 7.3 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments set forth the entire understanding between the parties. 7.4 Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 7.5 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 7.6 Assignment. Consultant's services are considered unique and personal. Consultant shall not assign, transfer, or sub-contract its interest or obligation under all or any portion of this Agreement without City's prior written consent. 7.7 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. 7.8 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because funds are no longer available to pay Consultant for services provided under this Agreement; or 3) City has abandoned and does not wish to complete the project for which Consultant was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the breaching party fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to Consultant. City shall pay the Consultant only for services Std - ProfSvcsAgreement- November 20, 2008 PAGE 6 OF 7 performed and expenses incurred as of the effective termination date. In such event, as a condition to payment, Consultant shall provide to City all finished or unfinished d©iutitentS, data, studies, surveys, drawings, maps, tmmodels, photographs and reports prepared by the Consultant under this Agreement. Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder, subject to off-set for any direct or consequential damages City may incur as a result of Consultant's breach of contract. 7.9 Duplicate Originals. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. When so signed, each such document shall be admissible in administrative or judicial proceedings as proof of the terms of the Agreement between the parties. 8.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally delivered or deposited in the mail (certified or registered) addressed to the parties as follows: CITY OF UKIAH WINZLER & KELLY DEPT. OF PUBLIC WORKS 2235 MERCURY WAY 300 SEMINARY AVENUE SUITE 150 UKIAH, CALIFORNIA 95482-5400 SANTA ROSA, CA 95407 9.0 SIGNATURES IN WIT ESS WHE CONSULT NI BY: PRINT NAME: ' ~Lggqlq IRS IDN Number CITY OF UKIAH F, the parties have executed this Agreement the Effective Date: i Date BY: i - F CIT ANAGER i ATTEST: rota.. 0 I Y CLERK Date: J.M Date Std - ProtSvcsAgreement- November 20, 2008 PAGE 7 OF 7 Exhibit A Scope of Services Copper Implementation Plan Understanding The City of Ukiah (City) has filed an application for renewal of its NPDES permit. As part of the application process the North Coast Regional Water Quality Control Board (Regional Board) has requested a Copper Implementation Plan to outline the City's strategy for complying with its final effluent limits for copper. To date, the City has been unable to comply with the final effluent limits as set by the California Toxics Rule with respect to copper, a situation which is not uncommon amongst dischargers in California. Winzler & Kelly has actively worked with several agencies and cities in the North Coast Region on this very issue, and has been successful in modifying NPDES final effluent limits for copper and even removing copper altogether from NPDES permits through the use of a Water Effects Ratio (WER) Study, which is outlined in California's State Implementation Plan (SIP) as an approved compliance pathway for metals. A WER Study following the methodology set forth in the EPA's "Streamlined Wlater-Effect Ratio Procedure for Discharges of Copper" outlines a streamlined procedure for determining site-specific values for a WAR to be used as a criteria adjustment factor accounting for the effects of site-specific water characteristics on pollutant bioavailability and toxicity to aquatic organisms. The streamlined procedure is specific to copper and will result in a WER that is multiplied by California's hardness-normalized dissolved criterion to obtain the site value of the dissolved copper criterion that would be used to update the District's NPDES permit. This scope of services includes completing an initial WER "litmus" test along with the Copper Implementation Plan. If the test results are promising, the Copper Implementation Plan will be developed to include the full WER Study at a later date. Task Based Scope of Work Task 1 Conduct Litmus Test of Copper WEIR Due to the cost of the full scale copper WER analysis and uncertainty on what level of copper WER the City, the litmus test provides a guide as to what level of improvement can be expected from the full scale copper WER analysis and what this means for the City in terms of compliance and return on investment. Winzler & Kelly will: • Specify sampling and test methodology • Work with the City to select a qualified laboratory • Analyze the data results and the potential for significant compliance improvement • Summarize analysis and recommendations in a letter report. The City will: • Collect the sample(s) and ship to the selected laboratory • Pay all appropriate laboratory fees Task 2 Prepare Copper Implementation Plan Concurrent with Task 1, Winzler & Kelly will develop a Copper Implementation Plan for submittal to the Regional Board. The Plan will include: • a summary of anticipated final effluent limits in the City's upcoming NPDES renewal, • a summary of copper data collected to date at the City's WWT'P and record of compliance, • a summary of all measures taken to date by the City to comply with copper including the Source Monitoring Study effort with Pacific EcoRisk and the results and recommendations of that study • a description of the polymer pilot testing conducted by City staff at the WW IT and the results of the pilot testing, • and the results of the WER "litmus test". If the "litmus test" is successful, the Copper Implementation Plan will also include a work plan for developing the WER. The work plan will be consistent with the State Implementation Policy and guidance documents described above for sampling and development of the WER and will include: • Monitoring and sampling plan • Laboratory analyses to be conducted • Methodology for data analysis • Development of the WER The Copper Implementation Plan will also include a description of other strategies for copper compliance including analysis of the City's existing sampling protocol and equipment to confirm that samples are not being contaminated. The Copper Implementation Plan will also include a priority and schedule for conducting all recommended studies and a timeline for compliance. Winzler & Kelly will respond to comments from the Regional Board and attend coordination meetings as necessary to receive approval of the Copper Implementation Plan. Proposed Fee Schedule We propose to complete the above tasks on a time and materials basis not to exceed $10,000. Task 1 will be completed for not to exceed $2,500 and Task 2 will be completed for not to exceed $7,500. Winzler & Kelly's standard rate schedule is attached. Schedule Winzler & Kelly will begin work immediately upon authorization by the City and will complete this activity within 30 days. WINZLER4Sz_KELLY FEE SCHEDULE - NORTHWEST (Effective February 2011) Hourly Rates(*) Principal Senior Project Engineer Project Engineer Staff Engineer Senior Project Scientist Project Scientist Staff Scientist Senior Planner Staff Planner 3-Person Survey Crew 2-Person Survey Crew 1-Person Survey Crew Construction Manager Construction Inspector Professional Land Surveyor Staff Surveyor/LSIT Technician Designer CADD Project Administrator Word Processor & Clerical Support l.r $ 180-260 130-190 105-135 95-105 135-160 90-125 70-100 115-160 90-100 255-390 170-270 85-175 100-170 85-125 145-160 95-115 60-100 80-120 65-105 65-125 45-90 Employee time will be billed in accordance with the fees listed above. These rates are subject to change on a semi-annual basis. For other than professional employees, time spent over 8 hours per day, time spent on swing shifts, and time spent on Saturdays will be charged at 1.5 times the hourly billing rate. Work on Sundays will be charged at 2.0 times the hourly billing rate and holiday work will be charged at 2.5 times the hourly billing rate. All field personnel charges are portal to portal. Professional employees will not be charged out at premium charge rates for overtime work. Expenses and other similar project related costs are billed out at cost plus 15%. The cost of using equipment and specialized supplies is billed on the basis of employee hours dedicated to projects. Our rates are: A. Office consumables $6.00/hr B. Environmental Dept/Construction Inspector consumables $11.00/hr C. Survey Field consumables $14.50/hr D. Various Environmental, Construction and Land Surveying Equipment At market Payment for work and expenses is due and payable upon receipt of our invoice. Amounts unpaid thirty (30) days after the issue date of our invoice shall be assessed a service charge of one and one half (1.5) percent per month. M These rates do not apply to forensic-related services, or to work for which Prevailing Wage obligations exist. It is the responsibility of the client to notify Winzler & Kelly in writing if Prevailing Wage obligations are applicable, in which case the fees will be adjusted proportionate to the increase in labor cost. NW Fee Schedule Feb 2011