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)