Signed Contract_Short Form Agreement with HDR Engineering, Inc. for City of Dubuque Waste Diversion ProjectCity of Dubuque
City Council Meeting
Consent Items # 015.
Copyrighted
September 6, 2022
ITEM TITLE: Signed Contract(s)
SUMMARY: Task Order 1 with MSA Professional Services, Inc., for the Briarwood
Subdivision Water Connection; First Amendment to Lease Agreement
with Hendricks Feed & Seed Co., INC.; HD Engineering, INC., for the
City of Dubuque Waste Diversion Project; James Orr Coating
Inspection, LLC for multiple water tank inspections; Origin Design Co.
for the Ice Harbor Flood Gate Fender Replacement; Amendment No. 1
with Strand Associates for the Water Treatment Plan and Water
Distribution System Supervisory Control and Data Acquisition System
Upgrade.
SUGGESTED Suggested Disposition: Receive and File
DISPOSITION:
ATTACHMENTS:
Description
Type
Task Order 1 for the Briarwood Subdivision Water Supporting Documentation
Connection
First Amendment to Lease Agreement with Hendricks Supporting Documentation
Feed & Seed Co., INC.
City of Dubuque Waster Diversion Project Supporting Documentation
James Orr Coating Inspection, LLC Supporting Documentation
Origin Design Co. for the Ice Harbor Flood Gate Supporting Documentation
Fender Replacement
Amendment No. 1 to Water Treatment Plan and Water
Distribution System Supervisory Control and Data Supporting Documentation
Acquisition System Upgrade
SHORT FORM AGREEMENT BETWEEN OWNER AND
HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES
AGREEMENT NUMBER 001
THIS AGREEMENT is made as of this 5 day of July, 2022, between City of
Dubuque ("OWNER") a municipal corporation, with principal offices at 925 Kerper Ct,
Dubuque, IA 52001, and HDR ENGINEERING, INC., (`ENGINEER" or
"CONSULTANT") for services in connection with the project known as (City of
Dubuque Waste Diversion Project) ("Project");
WHEREAS, OWNER desires to engage ENGINEER to provide professional
engineering, consulting and related services ("Services") in connection with the Project;
and
WHEREAS, ENGINEER desires to render these Services as described in
SECTION I, Scope of Services.
NOW, THEREFORE, OWNER and ENGINEER in consideration of the mutual
covenants contained herein, agree as follows:
SECTION I. SCOPE OF SERVICES
ENGINEER will provide Services for the Project, which consist of the Scope of Services
as outlined on the attached Exhibit A.
SECTION H. TERMS AND CONDITIONS OF ENGINEERING
SERVICES
The HDR Engineering, Inc. Terms and Conditions, which are attached hereto in Exhibit
B, are incorporated into this Agreement by this reference as if fully set forth herein.
SECTION III. RESPONSIBILITIES OF OWNER
The OWNER shall provide the information set forth in paragraph 6 of the attached "HDR
Engineering, Inc. Terms and Conditions for Professional Services."
SECTION IV. COMPENSATION
Compensation for ENGINEER'S services under this Agreement shall be on the basis of
time and materials.
Time and Materials shall mean actual labor hours at the rates included in Exhibit A, to be
paid as total compensation for each hour an employee works on the project, plus
Reimbursable Expenses.
Agreement for Professional Services 1 1/2020
The amount of any sales tax, excise tax, value added tax (VAT), or gross receipts tax that
may be imposed on this Agreement shall be added to the ENGINEER'S compensation as
Reimbursable Expenses.
Compensation terms are defined as follows:
Payroll Cost shall mean salaries and wages, (basic and overtime) paid to all personnel
engaged directly on the Project, plus the cost of customary and statutory benefits
including, but not limited to, social security contributions, unemployment, excise and
payroll taxes, worker's compensation, health and retirement benefits, sick leave, and
vacation and holiday pay applicable thereto. For this Agreement, the amount of
customary and statutory benefits of all personnel will be considered equal to thirty-five
percent (35%) of salaries and wages.
Direct Labor Cost shall mean salaries and wages, (basic and overtime) paid to all
personnel engaged directly on the Project. The Direct Labor Costs and the factor applied
to Direct Labor Costs will be adjusted annually as of the first of every year to reflect
equitable changes to the compensation payable to Engineer.
Reimbursable Expense shall mean the actual expenses incurred directly or indirectly in
connection with the Project for transportation travel, subconsultants, subcontractors,
technology charges, telephone, telex, shipping and express, and other incurred expense.
ENGINEER will add ten percent (10%) to invoices received by ENGINEER from
subconsultants and subcontractors to cover administrative expenses and vicarious
liability.
SECTION V. PERIOD OF SERVICE
Upon receipt of written authorization to proceed, ENGINEER shall perform the services
within the time period(s) described in Exhibit A.
Unless otherwise stated in this Agreement, the rates of compensation for ENGINEER'S
services have been agreed to in anticipation of the orderly and continuous progress of the
project through completion. If any specified dates for the completion of ENGINEER'S
services are exceeded through no fault of the ENGINEER, the time for performance of
those services shall be automatically extended for a period which may be reasonably
required for their completion and all rates, measures and amounts of ENGINEER'S
compensation shall be equitably adjusted.
Agreement for Professional Services 2 1/2020
SECTION VI. SPECIAL PROVISIONS
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first written above.
City of Dubuque
"OWNER"
BY:
NAME:
Michael Van Milligen
TITLE:
City Manager
ADDRESS:
50 W 13th Street
Dubuque, IA 52001
HDR ENGINEERING, INC.
"ENGINEER"
BY:
Matthew B. Tondl
NAME:
Senior Vice President
TITLE:
ADDRESS:
1917 S 67th St
Omaha, NE 68106
Agreement for Professional Services 3 1/2020
EXHIBIT A
SCOPE OF SERVICES
Waste Diversion Project Tasks
HDR will work with the City to complete the following tasks during FY2023 (July 2022 —June 2023). The
project budget is $20,000 and will be billed as a time and material contract.
1. Path Toward Zero Waste Action Plan — HDR will provide ongoing support to the City and its efforts
to implement waste reduction and diversion programming in the Citys solid waste collection
programs. Specifically, HDR will:
o Evaluate progress made since 2019 on the City's Path Toward Zero Waste Action Plan,
including developing an annual report that can be regularly updated that outlines
progress made on the three target goals of the plan. Those goals are as follows.
• Goal 1: Increase the overall waste diversion rate of the City collected materials
by 1% per capita annually through 2037.
• Goal 2: Reduce the per capita annual waste disposal rate by 1% annually
through 2037.
• Goal 3: Incorporate the existing greenhouse gas reduction initiative into the
Path Toward Zero Waste Action Plan.
o Following the evaluation reporting, co -develop with the City a list of action steps and
priorities that would help the community achieve increases in waste diversion from City
collected materials. HDR will create targeted action plans, including overall prioritization
for up to the top three actions.
o Provide ongoing support for City staff.
2. Ongoing support of the City of Dubuque's Solid Waste Operations Program — HDR's solid waste
collections team, led by Jennefer Klennert, will support Jake Jensen and the Solid Waste
Operations program. Specifically, HDR will:
o Evaluate the City's current rate structure for services and compare it to five other
communities that use a 'pay as you throw' system. Similar to the last study, the City
would collect the rates from the other cities and HDR would do the comparison.
o Evaluate the City's current recycling containers used for residential curbside collection of
recyclables and determine which, if any, changes should be implemented, the timeline
for implementation, and the overall cost of implementation.
o Provide ongoing support for City staff.
Assumption —All data is provided by the City of Dubuque.
Rate Schedule —
• Project Manager - $220 to $225
• Policy Advisor - $240 to $245
• Senior Strategic Advisor - $160 to $165
• Strategic Advisor - $130 to $135
• Solid Waste Coordinator - $90 to $95
• Strategic Communications Coordinator- $110 to $115
• Accounting - $150 to $155
EXHIBIT B
TERMS AND CONDITIONS
HDR Engineering, Inc. Terms and Conditions
for Consulting Services
1. STANDARD OF PERFORMANCE
The standard of care for all professional engineering,
consulting and related services performed or furnished by
CONSULTANT and its employees under this Agreement will
be the care and skill ordinarily used by members of
CONSULTANT's profession practicing under the same or
similar circumstances at the same time and in the same
locality. CONSULTANT makes no warranties, express or
implied, under this Agreement or otherwise, in connection with
CONSULTANT's services.
INSURANCE/INDEMNITY
CONSULTANT agrees to procure and maintain, at its expense,
Workers' Compensation insurance as required by statute;
Employer's Liability of $250,000; Automobile Liability insurance
of $1,000,000 combined single limit for bodily injury and property
damage covering all vehicles, including hired vehicles, owned
and non -owned vehicles; Commercial General Liability insurance
of $1,000,000 combined single limit for personal injury and
property damage; and Professional Liability insurance of
$1,000,000 per claim for protection against claims arising out of
the performance of services under this Agreement caused by
negligent acts, errors, or omissions for which CONSULTANT is
legally liable. OWNER shall be made an additional insured on
Commercial General and Automobile Liability insurance
policies and certificates of insurance will be furnished to the
OWNER. CONSULTANT agrees to indemnify OWNER for third
party personal injury and property damage claims to the extent
caused by CONSULTANT's negligent acts, errors or omissions.
However, neither Party to this Agreement shall be liable to the
other Party for any special, incidental, indirect, or consequential
damages (including but not limited to loss of use or opportunity;
loss of good will; cost of substitute facilities, goods, or services;
cost of capital; and/or fines or penalties), loss of profits or
revenue arising out of, resulting from, or in any way related to
the Project or the Agreement from any cause or causes,
including but not limited to any such damages caused by the
negligence, errors or omissions, strict liability or breach of
contract.
ESTIMATES
Any estimates of project cost, value or savings provided by
CONSULTANT are intended to allow a comparative evaluation
between alternatives and do not constitute a detailed evaluation
or prediction of actual project costs, value or savings. Any such
estimates are made on the basis of information available to
CONSULTANT and on the basis of CONSULTANT's experience
and qualifications, and represents its judgment as an
experienced and qualified professional engineer. However,
since CONSULTANT has no control over the impact of various
factors that impact the actual project cost, value or savings,
CONSULTANT does not guarantee that the actual project cost,
value or savings will not vary from CONSULTANT's estimates.
4. CONTROLLING LAW
This Agreement is to be governed by the law of the state where
CONSULTANT's services are performed.
SUCCESSORS, ASSIGNS AND BENEFICIARIES
OWNER and CONSULTANT, respectively, bind themselves,
their partners, successors, assigns, and legal representatives to
the covenants of this Agreement. Neither OWNER nor
CONSULTANT will assign, sublet, or transfer any interest in this
Agreement or claims arising therefrom without the written
consent of the other. No third party beneficiaries are intended
under this Agreement.
6. SERVICES AND INFORMATION
OWNER will provide all criteria and information pertaining to
OWNER's requirements for the project, including design
objectives and constraints, space, capacity and performance
requirements, flexibility and expandability, and any budgetary
limitations. OWNER will also provide copies of any OWNER -
furnished Standard Details, Standard Specifications, or Standard
Bidding Documents which are to be incorporated into the project.
OWNER will furnish the services of soils/geotechnical engineers
or other consultants that include reports and appropriate
professional recommendations when such services are deemed
necessary by CONSULTANT. The OWNER agrees to bear full
responsibility for the technical accuracy and content of OWNER -
furnished documents and services.
In performing professional engineering, consulting and related
services hereunder, it is understood by OWNER that
CONSULTANT is not engaged in rendering any type of legal,
insurance or accounting services, opinions or advice. Further, it
is the OWNER's sole responsibility to obtain the advice of an
attorney, insurance counselor or accountant to protect the
OWNER's legal and financial interests. To that end, the OWNER
agrees that OWNER or the OWNER's representative will
examine all studies, reports, sketches, drawings, specifications,
proposals and other documents, opinions or advice prepared or
provided by CONSULTANT, and will obtain the advice of an
attorney, insurance counselor or other consultant as the OWNER
deems necessary to protect the OWNER's interests before
OWNER takes action or forebears to take action based upon or
relying upon the services provided by CONSULTANT.
7. RE -USE OF DOCUMENTS
All documents, including all reports, drawings, specifications,
computer software or other items prepared or furnished by
CONSULTANT pursuant to this Agreement, are instruments of
service with respect to the project. CONSULTANT retains
ownership of all such documents. OWNER may retain copies of
the documents for its information and reference in connection
with the project; however, none of the documents are intended or
represented to be suitable for reuse by OWNER or others on
extensions of the project or on any other project. Any reuse
without written verification or adaptation by CONSULTANT for
the specific purpose intended will be at OWNER's sole risk and
without liability or legal exposure to CONSULTANT, and
OWNER will defend, indemnify and hold harmless
CONSULTANT from all claims, damages, losses and expenses,
including attorneys fees, arising or resulting therefrom. Any such
verification or adaptation will entitle CONSULTANT to further
compensation at rates to be agreed upon by OWNER and
CONSULTANT.
TERMINATION OF AGREEMENT
OWNER or CONSULTANT may terminate the Agreement, in
whole or in part, by giving seven (7) days written notice to the
other party. Where the method of payment is "lump sum," or
cost reimbursement, the final invoice will include all services and
expenses associated with the project up to the effective date of
termination. An equitable adjustment shall also be made to
provide for termination settlement costs CONSULTANT incurs as
a result of commitments that had become firm before
termination, and for a reasonable profit for services performed.
9. SEVERABILITY
If any provision of this agreement is held invalid or
unenforceable, the remaining provisions shall be valid and
binding upon the parties. One or more waivers by either party of
any provision, term or condition shall not be construed by the
other party as a waiver of any subsequent breach of the same
provision, term or condition.
10. CONTROLLING AGREEMENT
These Terms and Conditions shall take precedence over any
inconsistent or contradictory provisions contained in any
proposal, contract, purchase order, requisition, notice -to -
proceed, or like document.
(5/2020)
11. INVOICES
CONSULTANT will submit monthly invoices for services
rendered and OWNER will make payments to CONSULTANT
within thirty (30) days of OWNER's receipt of CONSULTANTS
invoice.
CONSULTANT will retain receipts for reimbursable expenses in
general accordance with Internal Revenue Service rules
pertaining to the support of expenditures for income tax
purposes. Receipts will be available for inspection by OWNER's
auditors upon request.
If OWNER disputes any items in CONSULTANT's invoice for
any reason, including the lack of supporting documentation,
OWNER may temporarily delete the disputed item and pay the
remaining amount of the invoice. OWNER will promptly notify
CONSULTANT of the dispute and request clarification and/or
correction. After any dispute has been settled, CONSULTANT
will include the disputed item on a subsequent, regularly
scheduled invoice, or on a special invoice for the disputed item
only.
OWNER recognizes that late payment of invoices results in
extra expenses for CONSULTANT. CONSULTANT retains the
right to assess OWNER interest at the rate of one percent (1 %)
per month, but not to exceed the maximum rate allowed by law,
on invoices which are not paid within thirty (30) days from the
date OWNER receives CONSULTANT's invoice. In the event
undisputed portions of CONSULTANT's invoices are not paid
when due, CONSULTANT also reserves the right, after seven
(7) days prior written notice, to suspend the performance of its
services under this Agreement until all past due amounts have
been paid in full.
12. CHANGES
The parties agree that no change or modification to this
Agreement, or any attachments hereto, shall have any force or
effect unless the change is reduced to writing, dated, and made
part of this Agreement. The execution of the change shall be
authorized and signed in the same manner as this Agreement.
Adjustments in the period of services and in compensation shall
be in accordance with applicable paragraphs and sections of
this Agreement. Any proposed fees by CONSULTANT are
estimates to perform the services required to complete the
project as CONSULTANT understands it to be defined. For
those projects involving conceptual or process development
services, activities often are not fully definable in the initial
planning. In any event, as the project progresses, the facts
developed may dictate a change in the services to be
performed, which may alter the scope. CONSULTANT will
inform OWNER of such situations so that changes in scope and
adjustments to the time of performance and compensation can
be made as required. If such change, additional services, or
suspension of services results in an increase or decrease in the
cost of or time required for performance of the services, an
equitable adjustment shall be made, and the Agreement
modified accordingly.
13. EQUAL EMPLOYMENT AND NONDISCRIMINATION
In connection with the services under this Agreement,
CONSULTANT agrees to comply with the applicable provisions
of federal and state Equal Employment Opportunity for
individuals based on color, religion, sex, or national origin, or
disabled veteran, recently separated veteran, other protected
veteran and armed forces service medal veteran status,
disabilities under provisions of executive order 11246, and other
employment, statutes and regulations, as stated in Title 41 Part
60 of the Code of Federal Regulations § 60-1.4 (a-f), § 60-
300.5 (a-e), § 60-741 (a-e).
14. EXECUTION
This Agreement, including the exhibits and schedules made part
hereof, constitute the entire Agreement between CONSULTANT
and OWNER, supersedes and controls over all prior written or
oral understandings. This Agreement may be amended,
supplemented or modified only by a written instrument duly
executed by the parties.
15. ALLOCATION OF RISK
OWNER AND CONSULTANT HAVE EVALUATED THE
RISKS AND REWARDS ASSOCIATED WITH THIS
PROJECT, INCLUDING CONSULTANT'S FEE RELATIVE TO
THE RISKS ASSUMED, AND AGREE TO ALLOCATE
CERTAIN OF THE RISKS, SO, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY
OF CONSULTANT (AND ITS RELATED CORPORATIONS,
SUBCONSULTANTS AND EMPLOYEES) TO OWNER AND
THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE
LESSER OF $1,000,000 OR ITS FEE, FOR ANY AND ALL
INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES
(INCLUDING ATTORNEY AND EXPERT FEES) ARISING
OUT OF CONSULTANT'S SERVICES OR THIS AGREEMENT
REGARDLESS OF CAUSE(S) OR THE THEORY OF
LIABILITY, INCLUDING NEGLIGENCE, INDEMNITY, OR
OTHER RECOVERY.
16. LITIGATION SUPPORT
In the event CONSULTANT is required to respond to a
subpoena, government inquiry or other legal process related to
the services in connection with a legal or dispute resolution
proceeding to which CONSULTANT is not a party, OWNER
shall reimburse CONSULTANT for reasonable costs in
responding and compensate CONSULTANT at its then
standard rates for reasonable time incurred in gathering
information and documents and attending depositions,
hearings, and trial.
17. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other
than the OWNER and CONSULTANT and has no third -party
beneficiaries. All work product will be prepared for the sole and
exclusive use of the OWNER and is not for the benefit of any
third party and may not be distributed to, disclosed in any form
to, used by, or relied upon by, any third party without the prior
written consent of CONSULTANT, which consent may be
withheld in its sole discretion. OWNER agrees to indemnify
CONSULTANT and its officers, employees, subcontractors,
and affiliated corporations from all claims, damages, losses,
and costs, including but not limited to litigation expenses and
attorney's fees arising out of or related to the unauthorized
disclosure, change, or alteration of such work product.
Use of any report or any information contained therein by any
party other than OWNER shall be at the sole risk of such party
and shall constitute a release and agreement by such party to
defend and indemnify CONSULTANT and its affiliates, officers,
employees and subcontractors from and against any liability for
direct, indirect, incidental, consequential or special loss or
damage or other liability of any nature arising from said party's
use of such report or reliance upon any of its content. To the
maximum extent permitted by law, such release from and
indemnification against liability shall apply in contract, tort
(including negligence), strict liability, or any other theory of
liability.
18. DISCLAIMER
In preparing reports, CONSULTANT relies, in whole or in part,
on data and information provided by the OWNER and third
parties, which information has not been independently verified
by CONSULTANT and which CONSULTANT has assumed tc
be accurate, complete, reliable, and current. Therefore, while
CONSULTANT has utilized the customary professional
standard of care in preparing this report, CONSULTANT does
not warrant or guarantee the conclusions set forth in reports
which are dependent or based upon data, information or
statements supplied by third parties or the OWNER.
19 OPERATIONAL TECHNOLOGY SYSTEMS
Terms & Conditions for Consulting Services 2 (5/2020)
OWNER agrees that the effectiveness of operational
technology systems ("OT Systems") and features designed,
recommended or assessed by CONSULTANT are dependent
upon OWNER's continued operation and maintenance of the
OT Systems in accordance with all standards, best practices,
laws, and regulations that govern the operation and
maintenance of the OT Systems. OWNER shall be solely
responsible for operating and maintaining the OT System in
accordance with applicable industry standards (i.e. ISA, NIST,
etc.) and best practices, which generally include but are not
limited to, cyber security policies and procedures,
documentation and training requirements, continuous
monitoring of assets for tampering and intrusion, periodic
evaluation for asset vulnerabilities, implementation and update
of appropriate technical, physical, and operational standards,
and offline testing of all software/firmware patches/updates
prior to placing updates into production. Additionally, OWNER
recognizes and agrees that OT Systems are subject to internal
and external breach, compromise, and similar incidents.
Security features designed, recommended or assessed by
CONSULTANT are intended to reduce the likelihood that OT
Systems will be compromised by such incidents. However,
CONSULTANT does not guarantee that OWNER's OT
Systems are impenetrable and OWNER agrees to waive any
claims against CONSULTANT resulting from any such
incidents that relate to or affect OWNER's OT Systems.
20. FORCE MAJEURE
CONSULTANT shall not be responsible for delays caused by
factors beyond CONSULTANT's reasonable control, including
but not limited to delays because of strikes, lockouts, work
slowdowns or stoppages, government ordered industry
shutdowns, power or server outages, acts of nature,
widespread infectious disease outbreaks (including, but not
limited to epidemics and pandemics), failure of any
governmental or other regulatory authority to act in a timely
manner, failure of the OWNER to fumish timely information or
approve or disapprove of CONSULTANT's services or work
product, or delays caused by faulty performance by the
OWNER's or by contractors of any level or any other events or
circumstances not within the reasonable control of the party
affected, whether similar or dissimilar to any of the foregoing.
When such delays beyond CONSULTANT's reasonable control
occur, the OWNER agrees that CONSULTANT shall not be
responsible for damages, nor shall CONSULTANT be deemed
in default of this Agreement, and the parties will negotiate an
equitable adjustment to CONSULTANT's schedule and/or
compensation if impacted by the force majeure event or
condition.
Terms & Conditions for Consulting Services 3 (5/2020)