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HomeMy WebLinkAboutMerritt Smith Consulting 2005-03-236o -v- 0 3 a3 Q CITY OF UKIAH AGREEMENT FOR PROFESSIONAL SERVICES Mixing Zone Policy Development Process Representation This agreement shall be considered a contract, and is entered into this23rdday of Mui. Pn, 2005 by and between the CITY OF UKIAH, a general law municipal corporation, hereinafter referred to as "CITY" and Merritt Smith Consulting, a partnership, hereinafter referred to as the "CONSULTANT." PREMISES The purpose of this agreement is the representation by CONSULTANT of entities party to the Cooperative Agreement to Provide Funding And Resources For Development of Mixing Zone Policy dated October 1, 2003 according to the scope of work, which is more particularly described in the Exhibit "A", attached to this agreement. CITY may retain independent contractor to perform special services for CITY or any department thereof. CONSULTANT is willing and able to perform duties and render mixing zone policy development representation services. This work has been determined by the City Council to be necessary for the welfare of residents of the CITY. CITY believes the provision of these services to the residents is in their best interests, and CONSULTANT agrees to perform such duties and render such services as outlined below: AGREEMENT CITY and CONSULTANT agree as follows: ARTICLE 1 SERVICES OF CONSULTANT 1.01 CONSULTANT shall provide those technical, expert, and professional services as described in Exhibit' A," which consists of the scope of work, dated March 17, 20051 which is attached hereto as Exhibit "A" and incorporated herein. CONSULTANT shall provide such services within the time limits described below. 1.02 The absence, omission, or failure to include in this agreement items which are considered to be a part of normal procedure for a study of this type or which involve professional judgement, shall not be used as a basis for submission of inadequate work or incomplete performance. 1 1.03 CITY relies upon the professional ability and stated experience of CONSULTANT as a material inducement to entering into this agreement. CONSULTANT understands the use to which the CITY will put his work product and hereby warrants that all information contained in the deliverables defined in Exhibit A shall be made and prepared in accordance with generally accepted professional practices. 1.04 CONSULTANT shall perform any additional services as may be required due to significant changes in general scope of the project. Such additional services shall be paid for by supplemental agreement and shall conform to the rates of payment specified in Article V below. ARTICLE 11 SERVICES OF CITY 2.01 CITY shall provide any information as to its requirements for performance of the agreement not already contained in Exhibit "A." 2.02 Upon request, CITY shall provide CONSULTANT any information in its possession or reasonably available to it that consultant may need to perform services under this agreement. ARTICLE III TERM OF AGREEMENT 3.01 The term of this agreement shall commence on the effective date and shall terminate when tasks described in Exhibit A are completed. This agreement may be extended on its same terms and conditions upon written agreement between the CITY and CONSULTANT. 3.02 The execution of this agreement by the CITY shall constitute the CONSULTANT'S authority to proceed immediately with the performance of the work described by Exhibit "A." 3.03 All work by CONSULTANT shall be completed pursuant to exhibit "A" in a timeframe according to the established deadlines of the mixing zone policy development schedule followed by the Regional Water Quality Control Board. CONSULTANT shall not be held responsible for delays caused by circumstances beyond its control. 3.04 CONSULTANT acknowledges that timely performance of services is an important element of this agreement and will perform services according to the mixing zone policy development schedule followed by the Regional Water Quality Control Board and consistent with sound professional practices. 3.05 If CITY requests significant modifications or changes in the scope of this project the time of performance shall be adjusted appropriately. The number of days of said extension shall be the final decision of CITY. K ARTICLE IV COST OF SERVICES 4.01 CONSULTANT has been selected by the CITY to provide services described in Exhibit 'A," attached hereto and incorporated herein by reference, for which compensation shall not exceed $158,000.00 on a time and materials basis. CONSULTANT shall not expend more than $90,000.00 without written authorization from CITY'S representative. 4.02 Cost overruns or failure to perform within the maximum compensation ceiling established in 4.01 above shall not relieve CONSULTANT of responsibility to provide those services specified in Exhibit "A", for a total compensation including reimbursable expenses not to exceed $158,000.00. ARTICLE V PAYMENT FOR SERVICES 5.01 CITY shall pay CONSULTANT for work required for satisfactory completion of this agreement in amount to be determined in accordance with the method described in paragraph 5.02 below. 5.02 Payment scheduling: Total payment not to exceed $158,000.00. Fees for professional services as outlined herein shall be paid on a time and materials basis. A detailed explanation of services and associated fees shall be listed on each invoice submitted by CONSULTANT. 5.03 Payments to CONSULTANT shall be based on an itemized invoice submitted by CONSULTANT not more frequently than monthly. 5.04 Payments will be made by CITY within thirty (30) days of receipt of invoice from CONSULTANT. 5.05 If CITY substantially alters the scope of work to include additional analyses or services, the total payment and cost of services may be changed by amending the agreement. ARTICLE VI PROJECT INSPECTION AND ACCOUNTING RECORDS 6.01 Duly authorized representatives of the CITY shall have right of access to the CONSULTANT'S files and records relating to the project included in the agreement and may review the work at appropriate stages during performance of the work. 6.02 CONSULTANT must maintain accounting records and other evidence pertaining to costs incurred, which records and documents shall be kept available at the 3 CONSULTANT'S California office during the contract period and thereafter for three (3) years from the date of final payment. ARTICLE VII DISPOSITION OF FINAL REPORTS 7.01 All documents and associated materials and backup data provided by CITY under this agreement shall be and shall remain the sole property of CITY. 7.02 CONSULTANT'S attention is directed to the required notice under Government Code Section 7550, which states in part that "any documents or written reports prepared as a requirement of this contract shall contain, in a separate section preceding the main body of the document, the number and dollar amounts of all contracts and subcontracts relating to the preparation of those documents or reports if the total cost for work by non -employees of the public agency exceeds $5,000.00." ARTICLE VIII TERMINATION OF AGREEMENT 8.01 At any time CITY may suspend indefinitely or abandon the project, or any part thereof, and may require CONSULTANT to suspend the performance of the service. In the event the CITY abandons or suspends the project, CONSULTANT shall receive compensation for services rendered to date of abandonment and suspension in accordance with the provisions of Sections 5.01, 5.02, and 5.03 herein. 8.02 It is understood and agreed that should CITY determine that any part of the work involved in the program is to be suspended indefinitely, abandoned, or canceled, said agreement shall be amended accordingly. Such abandonment or cancellation of a portion of the program shall in no way void or invalidate this agreement as it applies to any remaining portion of the project. 8.03 If, in the opinion of the CITY, the CONSULTANT fails to perform or provide prompt, efficient, and thorough service, or if CONSULTANT fails to complete the work within the time limits provided, CITY shall have the right to give notice in writing to CONSULTANT of its intention to terminate this agreement. The notice shall be delivered to CONSULTANT at least seven (7) days prior to the date of termination specified in the notice. Upon such termination, CITY shall have the right to take CONSULTANT'S studies and reports insofar as they are complete and acceptable to CITY, and pay CONSULTANT for his performance rendered, in accordance with Sections 5.01, 5.02, and 5.03 herein, prior to the delivery of the notice of intent to terminate, less the amount of damages, general or consequential, which CITY may sustain as a result of CONSULTANT'S failure to satisfactorily perform his obligations under this agreement. 4 ARTICLE IX RESPONSIBILITY FOR CLAIMS AND LIABILITIES 9.01 HOLD HARMLESS: The CONSULTANT shall indemnify and hold harmless the CITY, its agents, officers, and employees against and from any and all claims, lawsuits, actions, liability, damages, losses, expenses, and costs (including but not limited to attorney's fees), brought for, or on account of, injuries to or death of any person or persons including employees of the CONSULTANT, or injuries to or destruction of property, arising out of, or resulting from, the performance of the work described herein, provided that any such claim, lawsuit, action, liability, damage, loss, expense, or cost is caused in whole or in part by any negligent or intentional wrongful act or omission of the CONSULTANT, any subcontractor, anyone directly or indirectly employed by any of them, or any for whose acts any of them may be liable. CONSULTANT shall have no duty to indemnify or defend CITY under this paragraph if the damage or injury is caused by the active and sole negligence or willfully wrongful actor omission of CITY or its officers or employees. CITY agrees to timely notify CONSULTANT of any such claim and to cooperate with CONSULTANT to allow CONSULTANT to defend such a claim. ARTICLE X INSURANCE 10.01 CONSULTANT, at its expense, shall secure and maintain at all times during the entire period of performance of this agreement, insurance as set forth in Exhibit "B", attached hereto, and incorporated herein by reference. ARTICLE XI GENERAL COMPLIANCE WITH LAWS 11.01 It is understood and agreed that the CONSULTANT will comply with all federal, state and local laws and ordinances as may be applicable to the performance of work under this agreement. ARTICLE XIII NONDISCRIMINATION 12.01 CONSULTANT certifies that it is in compliance with the Equal Employment Opportunity Requirement of Executive Order 11246, as amended by Executive Order 11375, Title VI I of the Civil Rights Act of 1964, the California Fair Employment Practices Act, and any other Federal or State laws pertaining to equal employment opportunity and that it will not discriminate against any employee or applicant for employment on the basis of race, color, religion, handicap, age sex, national origin, or ancestry, in matters pertaining to recruitment, hiring, training, upgrading, transfer, compensation, or termination. 12.02 In the event of the CONSULTANT'S noncompliance with the nondiscrimination provisions of this agreement, the CITY shall impose such contact sanctions as it 5 may determine to be appropriate including, but not limited to: a. Withholding of payments to the CONSULTANT under the agreement until the CONSULTANT complies, and/or b. Cancellation, termination, or suspension of the Agreement in whole or in part. ARTICLE XIV INDEPENDENT CONSULTANT 13.01 The CONSULTANT, in accordance with its status as an independent contractor, covenants and agrees that it will conduct itself consistent with such status, that it will neither hold itself out as nor claim to be an officer or employee of the CITY by reason hereof, and that it will not by reason hereof, make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of the CITY including, but not limited to, worker's compensation coverage, unemployment benefits, and retirement membership or credit. ARTICLE XV SUCCESSOR AND ASSIGNMENTS 14.01 The CITY and the CONSULTANT each binds itself, its partners, successors, and executors, administrators, and assigns to the other party to this agreement, and to the partners, successors, executors, administrators, and assigns to such party in respect to all covenants of this agreement. 14.02 Except as stated above, neither the CITY nor the CONSULTANT shall assign, sublet, or transfer his interest in this agreement without the written consent of the other, however, the CONSULTANT reserves the right to assign the proceeds due under this agreement to any bank or person. 14.03 In the case of death of one or more members of the firm of the CONSULTANT, the surviving member or members shall complete the professional services covered by this agreement. ARTICLE XVI EXTENT OF AGREEMENT 15.01 This agreement shall consist of this agreement, the Scope of Work, dated March 17, 2005, identified as Exhibit "A", as attached hereto and incorporated herein, and the insurance requirements set forth in the attached Exhibit "B." 15.02 This agreement constitutes the whole agreement between the CITY and CONSULTANT and any other representations or agreements are superseded by the terms of this agreement. r ARTICLE XVII PARAGRAPH HEADINGS 16.01 The paragraph headings contained herein are for convenience and reference only and are not intended to define or limit the scope of this contract. ARTICLE XVIII NOTICE 17.01 Whenever a notice to a party is required by this agreement, it shall be deemed given when deposited with proper address and postage in the U.S. mail or when personally delivered as follows: CITY: Jerry Gall 300 Plant Road Ukiah, California 95482 ierryg�cityofukiah.com CONSULTANT/ CONTRACTOR: David Smith, Merritt Smith Consulting 3620 Happy Valley Road, Suite 103 Lafayette CA 94549 davesmith@merritt-smith.com ARTICLE XIX DUPLICATE ORIGINALS 18.01 This agreement may be executed in one or more duplicate originals bearing the original signature of both parties and when so executed and such duplicate original shall be admissible as proof of the existence and terms of the agreement between the parties. ARTICLE XX FORUM SELECTION 19.01 CONSULTANT and CITY stipulate and agree that any litigation relating to the enforcement or interpretation of the agreement, arising out of CONSULTANT's performance or relating in any way to the work shall be brought in Mendocino County and that venue will lie in Mendocino County. CONSULTANT hereby waives any right it might otherwise have to seek a change of venue based on its status as an out of county corporation, or on any other basis. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute this agreement in duplicate the day and year first above written. Vi CITY OF UKIAH CONSULTANT/CONTRACTOR • ••DIV -11:214, emlwnload- wlr;A 41, 14C -.0 MP -P2 M • �- Date 94-3151469 11?/*',"-, Zry� IRS IDN Number Date 3��-- Date Exhibit A Scope of Services March 17, 2005 Mixing Zone Policy Development Process Representation The City of Ukiah, the City of Cloverdale, the City of Healdsburg, the City of Santa Rosa, the Town of Windsor, the Forestville County Sanitation District, the Russian River County Sanitation District, the Occidental County Sanitation District, and the Sonoma County Water Agency on behalf of its Graton Sanitation Zone (collectively called "Water Recyclers" hereinafter), signed the Cooperative Agreement to Provide Funding And Resources For Development of Mixing Zone Policy dated October 1, 2003 (Cooperative Agreement). The Cooperative Agreement establishes the City of Ukiah as the Administrator. The Recyclers met on January 11, 2005, and determined that Merritt Smith Consulting (Consultant) should be retained by the City of Ukiah to provide the technical services described in this scope of services. SCOPE OF SERVICES The Consultant shall: • Review, comment and provide input and assistance on documents prepared by the Regional Government Services (RGS) staff for development of a draft mixing zone policy and technical support document (TSD). • Conduct a reasonable potential analysis (RPA) of discharges from the Water Recyclers. Review the possible biological effects of the constituents of concern identified from the RPA. Confer with the Water Recyclers and RGS staff on the findings and prepare a summary report. • Collect and assemble information from Water Recyclers identified to develop a mixing zone policy and TSD, including treatment plant status and site-specific information. Evaluate the possibility to obtain an exemption under the State Implementation Plan (SIP) for each agreement permittee. Prepare summary report(s) on findings. • Recommend an approach for site-specific objectives (SSOs), water effect ratios (WERs), translators, hardness factors, etc. when used with mixing zones. Review up to five case studies of approaches developed by others states, regions or EPA. Report on findings and recommendations. • Develop draft mixing zone policy for distribution to Water Recyclers and RGS staff. Assist RGS staff with collection of discharger -specific information for the California Environmental Quality Act (CEQA) documentation. Prepare an economic analysis required for CEQA. • Research hypothetical models of mixing zones that may be used in the Russian River watershed. Research diffuser technology. Document findings and recommendations. • Research up to five NPDES permits which have used mixing zones and dilution credits in determining permit requirements. Document findings. • Develop a draft Basin Plan amendment, draft NPDES permit criteria and appropriate monitoring criteria. Summarize findings and recommendations. • Assist RGS staff in finalizing TSD. • Meet with RGS staff, Water Recyclers, and Regional Board staff at various stages of the project. Attend public meetings pertaining to the Mixing Zone Policy. • Submit quarterly progress reports to the Water Recyclers. BUDGET AND COST The budget for this work is $158,000.00. Labor will be charged for Consultant personnel as follows: MSC Staff Hourly Rate David W. Smith, Principal $132.00 Michael Deas, Senior Scientist $126.00 Debbie Webster, Engineer $101.00 Susan Maclean, Project Assistant $58.00 Consultant will submit monthly invoices for all costs of service, including, but not limited to direct costs of labor of employees engaged by Consultant. Expenses will be charged as follows: • Direct at cost - Travel and transportation expenses (other than mileage), reproduction of large documents, field supplies, courier • Direct at cost plus 10% -subcontractors • $0.45/mile — auto mileage • $5.30 per labor hour - Communications (e.g., telephone, faxing, computer, minor duplication)