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FY2018-11 Professional Services Agreement For U.S. EPA Brownfield Grant Implementation Between The Kodiak Island Borough And Stantec Consulting Services Inc. in an amount not to exceed $571,190.Contract Number FY 2018-11 Professional Services Agreement Between the Kodiak Island Borough and Stantec Consulting Services Inc. for U.S. EPA Brownfield Grant Administration This AGREEMENT, made and entered into this 15th day of September 2017 by and between the KODIAK ISLAND BOROUGH, a second class borough organized under the laws of the State of Alaska (hereinafter referred to as the 'Borough"), and Stantec Consulting Services Inc., a corporation authorized to do business in Alaska (hereinafter referred to as the "Contractor"). WITNESSETH WHEREAS, many parcels within the Kodiak Island Borough have been contaminated by past industrial and institutional uses, known as brownfield sites; and WHEREAS, Natives of Kodiak, Inc. entered into a contract with Stantec Consulting Services Inc. to write a U.S. Environmental Protection Agency (EPA) Brownfield Assessment Program Grant ("Brownfield Grant") on behalf of the Borough, the City of Kodiak, and Natives of Kodiak, Inc. (collectively referred to as the "Brownfield Coalition"); and WHEREAS, the Brownfield Coalition applied for and received a total of $600,000 in Brownfield Assessment Program grant funding to assess up to 18 brownfield sites in order to take initial steps toward cleaning up and redeveloping vacant and underutilized properties; and WHEREAS, the Borough has entered into a Memorandum of Agreement with the other members of the Brownfield Coalition, which authorizes the Borough to administer the Brownfield Assessment Program grant funding; and WHEREAS, the Borough issued a Request for Proposals in order to identify and select an independent contractor to provide grant administration and other professional services related to the Brownfield Grant; and, WHEREAS, based upon the proposal that Stantec submitted in response to a Request for Proposals issued by the Borough, the Borough wishes to engage Stantec to provide said services; and, WHEREAS, this procurement process follows KIBC 3.30.110 Competitive sealed proposals — Negotiated procurement; and, WHEREAS, this Agreement will result in no fiscal impact to the Borough; and, WHEREAS, brownfield site assessment, remediation, and redevelopment efforts will benefit the residents of the Kodiak Island Borough. Contract Number FY 2018-11 NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows: i911 1.1 "Agreement' shall mean this Professional Services Agreement, which also shall be deemed to include the following documents: Exhibit A-1 — Scope of Work (dated November 30, 2016) Exhibit A-2 — Cooperative Agreement Work Plan approved by EPA (dated July 10, 2017) Exhibit B — Insurance Requirements Exhibit C — Budget 1.2 "Change Order" is an addition to, or reduction of, or other revision approved by the Borough in the scope, complexity, character, or duration of the services or other provisions of this Agreement. 1.3 'Borough" shall mean the Kodiak Island Borough, Alaska. 1.4 "Contracting Officer" shall mean the Borough Manager, including any authorized representative. 1.5 "Project' shall mean the U.S. EPA Brownfield Grant Submission and Administration Project and other related tasks as ordered by the Contracting Officer. 2.0 TERM OF AGREEMENT. This Agreement shall take effect upon execution, and shall remain in full force and effect until December 31, 2020, at which time all effort by the Contractor on the U.S. EPA Brownfield Grant Submission and Administration Project shall terminate with the exception of any unresolved claims or disputes arising hereunder. The contract termination date may not be the project completion date, but work within the time period allotted may be used to document and prepare for subsequent steps in the process to be undertaken that are necessary to bring this project to completion. This Agreement may be amended only in writing and upon compliance with all applicable statutes, ordinances, regulations, and applicable grant requirements. 3.0 FEES. Unless otherwise agreed by both parties in writing, the Fees payable to Stantec by the Borough pursuant to this Agreement shall accrue in accordance with Exhibit C. In no event shall the total Fees payable pursuant to this Agreement exceed the amount of $571,190.00 unless expressly authorized by the Borough in writing, subject to the limitation set forth at Section 26 of this Agreement. 4.0 SCOPE OF SERVICES. Stantec shall be responsible for completing the Scope of Contract Number FY 2018-11 Work set forth at Exhibits A-1 and A-2. The Scope of Work can only be changed in writing in accordance with Section 2.0 of this Agreement. 5.0 SCHEDULE FOR COMPLETION. Stantec shall complete all Work pursuant to this Agreement according to the schedule set forth at Exhibit A-2. 6.0 PERSONNEL / ORGANIZATION 6.1 Key Personnel. Work and services provided by the Contractor will be performed by: Chris Gdak, B.E.Sc Meredith Noble Doug Quist Collin Macheel, PG Sara Lindberg Riley Witt Michael Fisher, MSPM, MBA, PMP Natasha Hayden, P.E. 6.2 Changes in Key Personnel. The Contractor shall give the Borough reasonable advance notice of any necessary substitution or change of key personnel and shall submit justification therefore in sufficient detail to permit the Borough to evaluate the impact of such substitution on this Agreement. No substitutions or other changes shall be made without the written consent of the Borough. 7.0 STANDARD OF PERFORMANCE. The Contractor agrees to provide all required professional services to complete the project and any additions or changes thereto. The Contractor accepts the relationship of trust and confidence established between it and the Borough by this Agreement. The Contractor covenants with the Borough to furnish its reasonable skill and judgment, and to further the interest of the Borough at all times through efficient business administration and management. The Contractor shall provide all services in a competent manner. It is understood that some of the services to be rendered hereunder required professional judgment and skill. In those cases, the Contractor agrees to adhere to the standards of the applicable profession. 8.0 COMPLIANCE WITH LAWS. The Contractor shall be familiar with and at all times comply with and observe all applicable federal, state and local laws, ordinances, rules, regulations, and executive orders, all applicable safety orders, all orders or decrees of administrative agencies, courts, or other legally constituted authorities having jurisdiction or authority over the Contractor, the Borough, or the service which may be in effect now or during performance of the services. Contract Number FY 2018-11 9.0 INDEMNITY. The Contractor shall indemnify and hold harmless the Borough from and against any liability for negligent acts, errors, and omissions of the Contractor under this agreement, including reasonable attorney fees and costs. The consultant is not required to indemnify, defend, or hold harmless the Borough for liability for the negligent acts, errors, and omissions of the Borough. If there is liability for a joint negligent act, error, or omission of the Contractor and the Borough, the indemnification, defense, and hold harmless obligation of the Contractor, and liability of the parties, shall be apportioned on a comparative fault basis. In this provision, "Contractor" and "Borough" include the employees, agents, and contractors who are directly responsible, respectively, to each. In this provision, "independent negligent acts, errors, and omissions of the Borough" means negligence other than in the Borough's selection, administration, monitoring, or controlling of the Contractor, or in approving or accepting the Contractor's work or the Contractor's subcontractors. 10.0 INSURANCE. The Contractor understands that no Borough insurance coverage, including Workers' Compensation, is extended to the Contractor while completing the services described in this Agreement. The Contractor shall carry adequate (commercially reasonable coverage levels) insurance covering Workers' Compensation, general public liability, automobile, professional liability, and property damage including a contractual liability endorsement covering the liability created or assumed under this Agreement. The Contractor shall not commence work under this Agreement or any work on any phase of the Project until the Contractor provides the Borough with certificates of insurance evidencing that all required insurance has been obtained. These insurance policies and any extension or renewals thereof must contain the following provisions or endorsements: a. Borough is an additional insured thereunder as respects liability arising out of or from the work performed by Contractor of Borough. b. Borough will be given thirty (30) days prior notice of cancellation or material alteration of any of the insurance policies specified in the certificate. c. Insurer waives all rights of subrogation against Borough and its employees or elected officials. d. The insurance coverage is primary to any comparable liability insurance carried by the Borough. Upon request, Contractor shall permit the Borough to examine any of the insurance policies specified herein. Any deductibles or exclusions in coverage will be assumed by the Contractor, for account of, and at the sole risk of the Contractor. The minimum amounts and types of insurance provided by the Contractor shall be Contract Number FY 2018-11 as set forth in Exhibit B, subject to revision at the Borough's request in order to provide continuously throughout the term of the Agreement a level of protection consistent with good business practice and accepted standard of the industry. 11.0 GOVERNING LAW. The laws of Alaska will determine the interpretation, performance and enforcement of this Agreement. 12.0 OWNERSHIP OF WORK PRODUCTS. Payment to the Contractor for services hereunder include full compensation for all work products and other materials produced by the Contractor and its subcontractors pertaining to this Agreement. The originals of all material prepared or developed by the Contractor or its employees, agents, or representatives hereunder, including documents, drawings, designs, calculations, maps, sketches, notes, reports, data, models, computer tapes, and samples shall become the property of the Borough when prepared, whether delivered or not, and shall, together with any materials furnished the Contractor and its employees, agents, or representatives by the Borough hereunder, be delivered to the Borough upon payment in full of any fees that have accrued as a result of their creation. Materials previously created and copyrighted by the Contractor included in this project will remain property of the Contractor. Copies will be made available to the Borough upon request. Materials purchased from and copyrighted by third parties are not included in this provision. 13.0 PATENTS, TRADEMARKS, AND COPYRIGHTS. The Contractor agrees to indemnify, save, and hold the Borough harmless from and against any and all costs, royalties, damages and expenses (including reasonable attorneys' fees) which may arise out of or result from or be reasonably incurred in contesting any claim that the methods, processes, or negligent acts employed by the Contractor or its employees in connection with the performance of services hereunder infringes or contributes to the infringement of any letter patent, trademark, or copyright. In case such methods, processes, or negligent acts are in suit held to constitute infringement and use is enjoined, the Contractor, within reasonable time and at its own expense, will either secure a suspension of the injunction by procuring for the Borough a license or otherwise, or replace such method, process, etc., with one that is of equal efficiency and acceptable to the Borough. 14.0 NONWAIVER. No failure of the Borough or Contractor to, insist upon the strict performance by the other of any of the terms of this Agreement or to exercise any right or remedy herein conferred, shall constitute a waiver or relinquishment to any extent of its rights to rely upon such terms or rights on any future occasion. Each and every term, right, or remedy of this Agreement shall continue in full force and effect. 15.0 SAFETY/PERFORMANCE. The Contractor shall perform the work in a safe and customarily accepted manner. The Contractor shall comply with all applicable federal and state statues, ordinances, orders, rules, and regulations pertaining to Contract Number FY 2018-11 the protection of workers and the public from injury or damage, and shall take all other reasonable precautions to protect workers and the public from injury or damage. 16.0 SUSPENSION OR TERMINATION. 16.1 Termination or Suspension for Cause. This Agreement may be terminated by either party upon ten (10) days written notice if the other party fails substantially to perform in accordance with its terms. If the Borough terminates this Agreement it will pay the Contractor a sum equal to the percentage of work completed and accepted by the Borough that can be substantiated by the Contractor and the Borough, offset by any amounts owed to the Borough. However, within the ten (10) day Notice of Intent to terminate the party in default shall be given an opportunity to present a plan to correct its failure. 16.2 Suspension or Termination for Convenience. The Borough may at any time terminate or suspend this Agreement for any reason including its own needs or convenience. In the event of a convenience termination or suspension for more than six (6) months, the Contractor will be compensated for authorized services and authorized expenditures performed to the date of receipt of written notice of termination or suspension. No fee or other compensation for the uncompleted portion of the services will be paid, except for already incurred indirect costs which the Contractor can establish and which would have been compensated but because of the termination or suspension would have to be absorbed by the Contractor without further compensation. 16.3 Activities Subsequent to Receipt of Notice of Termination or Suspension. Immediately upon receipt of a Notice of Termination or suspension and except as otherwise directed by the Borough or its Representative, the Contractor shall: a. Stop work performed under this Agreement on the date and to the extent specified in the Notice; and b. Transfer title to the Borough (to the extent that title has not already been transferred) and deliver in the manner, at the times, and to the extent directed by the Borough's representative, work in progress, completed work, supplies, and other material produced as a part of, or acquired in respect of the performance of the work terminated or suspended by the Notice. 17.0 EQUAL EMPLOYMENT OPPORTUNITY. The Contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, or because of age, physical handicap, sex, marital status, change Contract Number FY 2018-11 in marital status, pregnancy, or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical handicap, sex, marital status, changes in marital status, pregnancy, or parenthood. The Contractor shall take affirmative action required by law to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, national origin, ancestry, age, or marital status. 18.0 NO ASSIGNMENT OR DELEGATION. The Contractor may not assign, subcontract or delegate this Agreement, or any part of it, or any right to any of the money to be paid under it without written consent of the Contracting Officer. 19.0 INDEPENDENT CONTRACTOR. The Contractor shalt be an independent contractor in the performance of the work under this Agreement, and shall not be an employee or agent of the Borough. 20.0 PAYMENT OF TAXES. As a condition of performance of this Agreement, the Contractor shall pay all federal, state and local taxes incurred by the Contractor and shall require their payment by any other persons in the performance of this Agreement. 21.0 PRECEDENCE AND DIVISIBILITY. The provisions of this Agreement shall fully govern the services performed by the Contractor. If any term, condition, or provision of this Agreement is declared void or unenforceable, or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. 22.0 ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties as to the services to be rendered by the Contractor. All previous or concurrent agreements, representations, warranties, promises, and conditions relating to the subject matter of this Agreement are superseded by this Agreement. 23.0 COMPLETION OF WORK, TERM OF AGREEMENT. The Contractor shall perform all work in accordance with the schedules included in this Agreement, including that set forth at Exhibit A-2. 24.0 CLAIMS AND DISPUTES. Venue for all claims and disputes under this Agreement, if not otherwise agreed to by the parties, shall be in the Superior Court in the Third Judicial District, at Anchorage or Kodiak, Alaska. 25.0 CHANGES IN SCOPE OF WORK. 25.1 General. No claim for additional services not specifically provided in this Agreement will be allowed, nor may the Contractor do any work or furnish any materials not covered by the Agreement, unless the work or material is ordered in writing by the Contracting Officer. Preparation of Change Orders and design changes, due to errors and/or omissions by the Contractor, will Contract Number FY 2018-11 be done at the sole expense of the Contractor. 25.2 Changes in Scope of Work. The Borough or its representative may, at any time, by a written Change Order delivered to the Contractor, make changes to the scope of work, or authorize additional work outside the scope of work. 25.3 Compensation to the Contractor. If any Change Order for which compensation is allowed under this Article causes an increase or decrease in the estimated cost of, or time required for, the performance of any part of the work under this Agreement, or if such change otherwise affects other provisions of this Agreement, an equitable adjustment will be negotiated. Such an adjustment may be made to: a. The estimated cost or completion schedule, or both; b. The amount of Fees to be paid; and c. Such other provisions of the Agreement as may be affected, and the Agreement shall be modified in writing accordingly. 25.4 Any claim by the Contractor for adjustment under this section must be asserted within fifteen (15) days from the day of receipt by the Contractor of the Change Order; provided, however, that the Borough or its representative, deciding that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this Agreement. If an equitable adjustment will result in any increase to the project costs, or to the amount of Fees payable to Stantec, such adjustments shall be consistent with the Schedule of Rates set forth at Exhibit C. Should Stantec complete additional work subject to a Change Order for which compensation is allowed under this Section, and should the Borough fail to agree to an equitable adjustment, that failure shall be a dispute within the meaning of Section 24.0 of this Agreement. 26.0 LIMITATION OF FUNDS. 26.1 At no time will any provision of this Agreement make the Borough or its representative liable for payment to Stantec for the performance of work under this Agreement in excess of the amount that has been appropriated by the Borough Assembly and obligated for expenditure for purposes of this Agreement. 26.2 Change orders issued pursuant to Section 25 of this Agreement shall not be considered an authorization to the Contractor to exceed the amount allotted in the absence of a statement in the change order, or other modification increasing the amount allotted. Contract Number FY 2018-11 26.3 Nothing in this Section shall affect the right of the Borough under Section 16 to terminate this Agreement. 27.0 PRIOR WORK. For the purposes of this Agreement, work done at the request of the Borough or its representative before execution of this Agreement shall be deemed to be work done after its execution and shall be subject to all the conditions contained herein. 28.0 NOTICES. Any notices, bills, invoices, or reports required by the Agreement shall be sufficient if sent by the parties in the United States mail, postage paid, to the address noted below: Kodiak Island Borough Stantec Consulting Services Inc. Attn: Borough Manager Attn: Chris Gdak 710 Mill Bay Road, Room 125 11130 NE 3311 Place, Ste. 200 Kodiak, Alaska 99615 Bellevue, WA 98004-1465 mpowers@kodiakak.us chris.gdak@stantec.com 29.0 LIABILITY & DAMAGES. Neither the Borough nor the Contractor shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected to this Agreement or the performance of the services on this Project. This mutual waiver includes, but is not limited to, damages related to loss of use, loss of profits, loss of income, unrealized energy savings, diminution of property value or loss of reimbursement or credits from governmental or other agencies. 30.0 RELIANCE. Any report produced by the Contractor in relation to the Services is intended for the sole use of the Borough. The report may not be relied upon by any other party without the express written consent of the Contractor, which may not be unreasonably withheld. Any such consent will provide no greater rights to the third party than those held by the Borough under the contract, and will only be authorized pursuant to the conditions of the Contractor's standard form reliance letter. Contract Number FY 2018.11 IN WITNESS WHEREOF, the parties have executed this Agreement. Kodiak Island Borough Stantec Consulting Services Inc. By: Michael Povi rs By: Chiig Gdak Title: Boroug anag r Date: jf Title: Principal, Environmental Services Date: September 22, 2017 ATT T: NDe�� Nova Javier, MMC c Q C Borough Clerk 0 t1 3 (Borough seal)