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HomeMy WebLinkAbout000704 Original ContractCity of Port Angeles Record #000704 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE THE CITY OF PORT ANGELES AND TERRE- SOURCE LLC RELATING TO: Compost Remediation THIS AGREEMENT is made and entered into this 3rd day of March, 2014, by and between THE CITY OF PORT ANGELES, a non - charter code city of the State of Washington, (hereinafter called the "CITY ") and Terre - Source LLC, located at 720 South Main Street, Suite 207, Mount Vernon, WA 98273 authorized to do business in the state of Washington (hereinafter called the "CONSULTANT "). WHEREAS, the CITY desires to engage the professional services and assistance of a qualified consulting firm to perform consultation service for the CITY's Compost Facility, and WHEREAS, the CONSULTANT represents that it has the background, experience, and ability to perform the required work in accordance with the standards of the profession, and WHEREAS, the CONSULTANT represents that it will provide qualified personnel and appropriate facilities necessary to accomplish the work; NOW, THEREFORE, in consideration of the above representations and the terms, conditions, covenants, and agreements set forth below, the parties hereto agree as follows: I SCOPE OF WORK The scope of professional services to be performed by the CONSULTANT shall be as detailed in the attached Exhibit A and shall include all services and material necessary to accomplish the work. The CITY may review the CONSULTANT'S work product, and if it is not satisfactory, the CONSULTANT shall make such changes as may be required by the CITY. The CONSULTANT agrees that all services performed under this Agreement shall be in compliance with applicable federal, state and local laws. The Scope of Work may be amended upon written approval of both parties. There are no third party beneficiaries of the City - Consultant Agreement and no one except the parties to this Agreement may seek to enforce its terms. II OWNERSHIP OF DOCUMENTS Upon completion of the work, all documents, exhibits, photographic negatives, or other Compost Remediation Professional Services Agreement Contract - Page 1 of 7 presentations of the work shall become the property of the CITY for use without restriction and without representation as to suitability for reuse by any other party unless specifically verified or adapted by the CONSULTANT. However, any alteration of the documents, by the City or by others acting through or on behalf of the City, will be at the City's sole risk. III DESIGNATION OF REPRESENTATIVES Each party shall designate its representatives in writing. The CONSULTANT'S representative shall be subject to the approval of the CITY. IV TIME OF PERFORMANCE Te CONSULTANT may begin work upon execution of this Agreement by both parties and the duration of the Agreement shall extend through July 31, 2014. The schedule for the specific tasks is in Exhibit B attached to this agreement. V PAYMENT The CITY shall pay the CONSULTANT as set forth in this section of the Agreement. Such payment shall be full compensation for work performed, services rendered, and all labor, materials, supplies, equipment and incidentals necessary to complete the work. A. Payment shall be on the basis of the CONSULTANT'S time and expense cost and shall include actual labor, overhead and profit plus CONSULTANT'S direct non-salary reimbursable costs as set forth in the attached Exhibit D. B. The CONSULTANT shall submit invoices to the CITY on a monthly basis. Invoices shall detail the work and employee name; shall indicate the specific task or activity in the Scope of Work to which the costs are related. C. The CITY shall review the invoices and make payment for the percentage of the project that has been completed less the amounts previously paid. D. The CONSULTANT invoices are due and payable within 30 days of receipt. In the event of a disputed billing, only the disputed portion will be withheld from payment. E. Final payment for the balance due to the CONSULTANT will be made after the completion of the work and acceptance by the CITY. VI MAXIMUM COMPENSATION Unless otherwise agreed to in writing by both parties, the CONSULTANT'S total compensation and reimbursement under this Agreement, including labor, direct non-salary reimbursable costs and outside services, shall not exceed the maximum sum of $ 5,000, including prevailing wage rates and all applicable taxes. Budgets for task(s) may be modified upon mutual agreement between the two parties, but in any event, the total payment to CONSULTANT shall not exceed $5,000. Compost Remediation Professional Services Agreement Contract - Page 2 of 7 VII INDEPENDENT CONTRACTOR STATUS The relation created by this Contract is that of owner - independent contractor. The Contractor is not an employee of the City and is not entitled to the benefits provided by the City to its employees. The Contractor, as an independent contractor, has the authority to control and direct the performance services to be provided within the scope of work. The Contractor shall assume full responsibility for payment of all Federal, State, and local taxes or contributions imposed or required, including, but not limited to, unemployment insurance, Social Security, and income tax. VIII EMPLOYMENT Employees of the CONSULTANT, while engaged in the performance of any work or services under this Agreement, shall be considered employees of the CONSULTANT only and not of the CITY, and claims that may arise under the Workman's Compensation Act on behalf of said employees while so engaged, and any and all claims made by a third party as a consequence of any negligent act or omission on the part of the CONSULTANT'S employees while so engaged, on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT. In performing this Agreement, the CONSULTANT shall not employ or contract with any CITY employee without the City's written consent. IX NONDISCRIMINATION The CONSULTANT shall conduct its business in a manner, which assures fair, equal and non - discriminatory treatment of all persons, without respect to race, creed or national origin, or other legally protected classification and, in particular: A. The CONSULTANT shall maintain open hiring and employment practices and will welcome applications for employment in all positions, from qualified individuals who are members of minorities protected by federal equal opportunity /affirmative action requirements; and B. The CONSULTANT shall comply with all requirements of applicable federal, state or local laws or regulations issued pursuant thereto, relating to the establishment of non discriminatory requirements in hiring and employment practices and assuring the service of all persons without discrimination as to any person's race, color, religion, sex, Vietnam era veteran status, disabled veteran condition, physical or mental handicap, or national origin. X SUBCONTRACTS A. The CONSULTANT shall not sublet or assign any of the work covered by this Agreement without the written consent of the CITY. Compost Remediation Professional Services Agreement Contract - Page 3 of 7 B. In all solicitation either by competitive bidding or negotiation made by the CONSULTANT for work to be performed pursuant to a subcontract, including procurement of materials and equipment, each potential subconsultant or supplier shall be notified by the CONSULTANT of Consultant's obligations under this Agreement, including the nondiscrimination requirements. XI TERMINATION OF AGREEMENT A. The CITY may terminate this Agreement at any time upon not less than ten (10) days written notice to the CONSULTANT. Written notice will be by certified mail sent to the consultant's designated representative at the address provided by the CONSULTANT. B. In the event this Agreement is terminated prior to the completion of the work, a final payment shall be made to the CONSULTANT, which, when added to any payments previously made, shall compensate the CONSULTANT for the percentage of work completed. C. In the event this Agreement is terminated prior to completion of the work, documents that are the property of the CITY pursuant to Section II above, shall be delivered to and received by the CITY prior to transmittal of final payment to the CONSULTANT. XII INDEMNIFICATION/HOLD HARMLESS CONSULTANT shall defend, indemnify and hold the CITY, its officers, officials and employees harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the negligent or intentional acts, errors or omissions of the CONSULTANT in performance of this Agreement, except for injuries and damages caused by the sole negligence of the CITY. The CITY agrees to indemnify the CONSULTANT from any claims, damages, losses, and costs, including, but not limited to, attorney's fees and litigation costs, arising out of claims by third parties for property damage and bodily injury, including death, caused solely by the negligence or willful misconduct of the CITY, CITY's employees, or agents in connection with the work performed under this Agreement. If the negligence or willful misconduct of both CONSULTANT and CITY (or a person identified above for whom each is liable) is a cause of such damage or injury, the loss, cost, or expense shall be shared between the CONSULTANT and the CITY in proportion to their relative degrees of negligence or willful misconduct and the right of indemnity shall apply for such proportion. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the CONSULTANT, the CITY, and the officers, officials and employees of either, the CONSULTANT'S liability hereunder shall be only to the extent of the CONSULTANT'S Compost Remediation Professional Services Agreement Contract - Page 4 of 7 negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the CONSULTANT'S waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. However, the CONSULTANT expressly reserves its rights as a third person set forth in RCW 51.24.035. XIII INSURANCE The CONSULTANT shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the CONSULTANT, its agents, representatives, employees or subcontractors. No Limitation. CONSULTANT'S maintenance of insurance as required by the agreement shall not be construed to limit the liability of the CONSULTANT to the coverage provided by such insurance, or otherwise limit the CITY'S recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance CONSULTANT shall obtain insurance of the types described below: 1. Personal Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles; and, 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, and personal injury and advertising injury. The CITY shall be named as an insured under the CONSULTANT's Commercial General Liability insurance policy with respect to the work performed for the CITY; and, 3. Workers' Compensation coverage as required by the Industrial Insurances laws of the State of Washington. B. Minimum Amounts of Insurance CONSULTANT shall maintain the following insurance limits: 1. Personal Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $500,000 per accident. 2. Business Liability General Aggregate insurance shall be written with limits no less than $2,000,000 each occurrence, $4,000,000 general aggregate. C. Other Insurance Provisions Compost Remediation Professional Services Agreement Contract - Page 5 of 7 The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, and Commercial General Liability insurance: 1. The CONSULTANT's insurance coverage shall be primary insurance as respect the CITY. Any insurance, self-insurance, or insurance pool coverage maintained by the CITY shall be excess of the CONSULTANT's insurance and shall not contribute with it. 2. The CONSULTANT's shall provide the CITY and all additional insured's with written notice of any policy cancellation, within two (2) business days of their receipt of such cancellation. 3. Any payment of deductible or self-insured retention shall be the sole responsibility of the CONSULTANT. 4. The CONSULTANT'S insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage CONSULTANT shall furnish the CITY with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the CONSULTANT before commencement of the work. Failure on the part of the CONSULTANT to maintain the insurance as required shall constitute a material breach of contract, upon which the CITY may, after giving five (5) business days notice to the CONSULTANT to correct the breach, immediately terminate the Agreement, at its discretion, procure or renew such insurance and pay any and all premiums in connection there with, with any sums so expended to be repaid to the CITY on demand, or at the sole discretion of the CITY, offset against funds due the CONSULTANT from the CITY. XIV APPLICABLE LAW This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington, and in the event of dispute the venue of any litigation brought hereunder shall be Clallam County. XV EXHIBITS AND SIGNATURES This Agreement, including its exhibits, constitutes the entire Agreement, supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. The following exhibits are hereby made a part of this Agreement: Compost Remediation Professional Services Agreement Contract - Page 6 of 7 Attachment A — Attachment B — Attachment C Attachment D Scope of Work Schedule of Tasks — Budget of Initial Tasks — Consultant Labor Costs and Non-Salary Reimbursable Cost IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY OF PORT ANGELES 04, Dan Mc Keen, City Manager CONSULTA Tamara Manager, Terre-Source Compost Remediation Professional Services Agreement APPROVED AS TO FORM: lam Bloor, ity Attorney ATTEST: Ck /1.6(a74 Jan ss,a Hurd, City Clerk Contract - Page 7 of 7 Attachment A - Scope of Work Background: This evaluation is to address the concerns by the Department of Ecology (Ecology) pertaining to the City's Sampling and Analysis Plan (SAP) for the Compost Facility. Ecology has informed the City that the composted biosolids currently onsite have not met the requirements and standards set forth in WAC 173-308, Biosolids Management, and therefore, may not be distributed to the public or made available for unrestricted use. At this time, the distribution of composted biosolids must cease, until Ecology agrees that the process to prepare EQ biosolids at Port Angeles meets both the State and federal regulatory requirements. Ecology provided written notice to the City on February 25, 2014 stating the following immediate requirements must be addressed: 1) Insulating Laver: At a minimum, a 12-inch insulating blanket of finished, screened compost (or another material approved by Ecology) must be used to cover the aerated static piles (ASPs) upon their formation and prior to the initiation of the Process to Further Reduce Pathogens (PFRP) and Vector Attraction Reduction (VAR). The use of this insulating layer is the recommended method by EPA. Unless approval for the use of an alternative method has been granted by the EPA Pathogen Equivalency Committee, it is a required standard enforced by the States Biosolids Program and must be implemented. The use of manufactured cover may still be employed; however, a 12-inch layer of finished compost must be placed atop to cover. The importance and value of such a layer in ASP systems is to ensure that every particle of biosolids is concurrently treated to meet the PRRP temperature regime. It is important to use finished compost as the insulating layer as it will eventually become incorporated into the ASP, and it is critical not to reintroduce potential pathogens into the pile after PFRP and VAR have been met. 2) Sampling and Analysis Plan (SAP): The SAP that was previously used as a guide for the collection of compost for compliance analysis has been found by Ecology to be lacking in the elements that are required for the collection of a representative sample. To ensure that representative samples are being collected, an updated SAP must be produced and supplied for Ecology interpretation and approval. The update should include how representative samples will specifically be collected. As discussed with Ecology, a proportional separation of compost that has undergone PFRP/VAR and is being moved from the three composting bays to the curing bay may be screened to produce a representative pile for sample collection. The detail of this process must be included in the updated sampling plan. A minimum of 80-100 cubic yards of screened compost must be the result of this process, as this pile will be used to represent the entire batch (all three bays). Ecology must review the update SAP for completeness and acceptance prior to its implementation. 3) Non-EQ compost currently onsite: The compost that was in the curying bay during the meeting with Ecology and other piles on-site has not technically met the standard for EQ biosolids through composting. These biosolids may not continue to be distributed to the public. A contingency plan for these biosolids must be implemented. The CITY will make the decision on the plan for final use or disposal of these biosoilds. These biosolids must be considered no-EQ, and therefore must Compost Remediation Professional Services Agreement Attachment A - Page 1 of 3 re re-processed or used in a manner that meets the State Biosolids Program requirements. 4) After additional review of the latest operating plan (Rev. September 2013), Ecology noted that the components of capacity and throughput are not addressed in the plan. As was discussed in the November 14, 2013 meeting between the City and Ecology, the plan must address both of these issues to ensure that materials on site are not in excess of what can be properly managed on-site at any given time (capacity) and also ensure that overall incoming volumes of materials are in balance with outgoing product (throughout). Both concepts are defined in WAC 173-350-100. The Scope of Work shall include professional services to evaluate the items list above, which shall encompass the following professional services: Task 1: Review and Evaluation CONSULTANT shall review and evaluate the items 1-4, addressing the plan and calculation concerns for items 1, 2 and 4. Additionally, the CONSULTANT shall develop a potential list of options for addressing Ecology's concerns for item 3, Non-EQ Compost Currently Onsite using the following: • Visit the site initially to observe operations and site infrastructure, and discuss operations with current CITY staff, including temperature testing on the "Non- EQ compost pile. • Review the CITY's past compost documentation including time and temperature logs and sampling analyses for the issues of passing the analytical tests. • Develop options for addressing the "Non-EQ) material. The options would be based on the goal of allowing the material to be reprocessed in time for spring sales. If this goal is unachievable, other options will be developed by the CONSULTANT. • Prepare a technical memo outlining the most appropriate options to address the CITY's Non-EQ compost. CITY will have seven days to review the draft technical memo prior to being finalized. Task 2: Letter to Ecology The CONSULTANT shall prepare a letter to Ecology addressing each of the concerns listed above in items 1-4, including, but not limited to: • A Sampling and Analysis Plan (SAP) for submittal to Ecology and subsequent insertion into the CITY's Operation Plan. • A paragraph / process to cover all future composting piles with a minimum of 12-inches of "finished compost or other approved" insulating biofilter layer. Compost Remediation Professional Services Agreement Attachment A - Page 2 of 3 • Calculations to justify or revise current capacity and throughput levels for the facility. • The selected approach for handling the CITY's Non-EQ compost pile. Task 3: Directed Services CONSULTANT shall provide technical assistance and other services to the CITY related to compost remediation as directed by CITY staff. The purpose of this task is to facilitate timely response to Ecology for unforeseen issues at this time. END OF ATTACHMENT Compost Remediation Professional Services Agreement Attachment A - Page 3 of 3 Attachment B — SCHEDULE OF TASKS Task 1 shall be completed by March 17, 2014 Task 2 shall be completed by March 24, 2014 Task 3 shall be completed by July 31, 2014 END OF ATTACHMENT Compost Remediation Professional Services Agreement Attachment B - Page 1 of 2 Compost Remediation Professional Services Agreement Attachment B - Page 2 of 2 ATTACHMENT C BUDGET OF INITIAL TASKS Task Estimated Labor Cost Estimated Direct Cost Estimated Sub-consultant Cost Total Budget Task 1: Review and Evaluation $2,400 $100.00 $0.00 $2,500 Task 2: Letter to Ecology $1,000 $0.00 $0.00 $1,000 Task 3: Directed Services $1,500 $0.00 $0.00 $1,500 Total Cost $5,000 All tasks above (Task 1 through Task 3) shall be paid on an hourly (time and materials) basis. END OF ATTACHMENT Compost Remediation Professional Services Agreement Page 1 of 2 Compost Remediation Professional Services Agreement Page 2 of 2 Attachment D — Consultant Labor Costs and Non - salary Reimbursable Cost Labor Category Principal Hourly Rates $ 85.00 END OF ATTACHMENT Compost Remediation Professional Services Agreement Attachment D - Page 1 of 1