Signed Contract_WPC Plant Upgrade, MWH Americas Environmental ContaminationMasterpiece on the Mississippi
TO:
FROM:
DATE:
SUBJECT:
Attachs.
Dubuque
AM- AmedaClhr
2007
Michael C. Van Milligen, City Manager
Steve Sampson Brown, Project Manager
October 18, 2010
Water Pollution Control Plant Modifications — Environmental
Contamination Consulting Services
Attached is the Professional Service Agreement between the City of Dubuque and
MWH Americas, Inc. (MWH) for engineering assistance services relating to
environmental matters associated with the spill of mercury at the Water Pollution
Control Plant. City Attorney Barry Lindahl has reviewed and approved the attached
contract.
Review and approval of the Certificate of Liability Insurance is currently being
coordinated by the Finance Department.
Upon execution of the noted documents, please return to the Engineering Department
for further processing.
cc: Gus Psihoyos — City Engineer
Jenny Larson — Budget Director
Jonathan Brown — Water Pollution Control Plant Manager
M WHe
MWH CONTRACT No.
CONSULTING SERVICES AGREEMENT [Hourly Rate] (HAZ)
This agreement ( "Agreement"), with an effective date of October 8. 2010, Is by and between City of Dubuque ( "CLIENT)
and MWH Americas, Inc. ('CONSULTANT").
In consideration of the mutual covenants and promises contained herein, the parties agree as Mows:
1 SCOPE OF SERVICES
1.1 The services to be performed by CONSULTANT for CLIENT under this Agreement ("Services') are set out In
Attachment A (Scope of Servk es), Incorporated herein by reference. The Services are to be performed In support of the
project Identified in Attachment A ('Project").
2 COMPENSATION
2.1 CLIENT shall pay to CONSULTANT, as compensation for the Services ( "Compensation'), at the rates set forth
In CONSULTANT% rate schedule ('Rate Schedule "), Attachment B, incorporated herein by reference.
2.2 CLIENT will pay CONSULTANT additional compensation for labor and expenses Incurred by CONSULTANT In
responding to or and assisting with any audit required by CLIENT, or any federal, state and local govemment agencies.
The basis of payment will be the CONSULTANT's normal commercial rate for such services unless otherwlse defined by
an amendment to this Agreement.
3. INVOICING AND PAYMENT
3.1 CONSULTANT shall submit its standard monthly invoice describing the Services performed and expenses
Incurred during the preceding month. CLIENT shall make payment of all undisputed portions of such invoice and provide
written justification for the withholding of any disputed portions to CONSULTANT within thirty (30) calendar days from the
date of CONSULTANT's monthly Invoice.
3.2 Payment of all Compensation due CONSULTANT pursuant to this Agreement shall be a condition precedent to
CLIENT's use or reliance upon any of CONSULTANT's professional services or work products furnished under this
Agreement.
3.3 In the event payment for the Services has not been made within 60 calendar days from the date of the invoice,
CONSULTANT may, after giving 7 calendar days written notice and without penalty or liability of any nature, and without
waiving any claim against CLIENT, suspend all or any part of the Services. In order to defray carrying charges resulting
from delayed payments, simple Interest at the rate of 1.5% per month (18% per annum), not to exceed the maximum rate
allowed by law, shall be added to the unpaid balance of each Invoice. The interest period shall commence 30 calendar
days after the date of the Invoice. Payments shall first be credited to interest and then to principal.
3.4 Electronic payment may be made to the following address:
Bank name Wells Fargo
Bank address 1000 Lakes Drive, Suite 250
West Covina, CA 91790
Bank contact Millie Pham
826/919 -6602
Beneficiary MWH Americas, Inc.
Beneficiary a/c 4945081503
ABA routing 121000248
3.5 Mail / Lock Box
MWH Americas, Inc.
Dept. 2728
Los Angeles, CA 90084 -2728
4 PERIOD OF PERFORMANCE
4.1 This Agreement shaN have an effective date as set forth above and shall remain in effect until
December 31. 2012 unless terminated earlier pursuant to this Agreement.
Consulting Services [Hourly Rate] (HAZ) (Rev. 9-30 -2009) (City of Dubuque — 10-10)
5 CLIENT'S RESPONSIBILITIES
5.1 CLIENT shall designate a person to act as CLIENT's representative with respect to this Agreement. Such
person will have complete authority to transmit Instructions, receive Information and Interpret and define CLIENT'a
policies and decisions.
5.2 CLIENT shall furnish to CONSULTANT all applicable Information and technical data in CLIENT's possession or
control reasonably required for the proper performance of the Services. CLIENT shall also disclose to CONSULTANT
hazards at the Project site ( "Site") which pose a significant threat to human health or the environment. CONSULTANT
shall be entitled to reasonably rely upon the information and data provided by CLIENT or obtained from generafly
accepted sources within the Industry without independent verification except to the extent such verification Is expressly
included in the Services.
5.3 CLIENT shall examine all studies, reports, sketches, drawings, specifications, and other documents presented
by CONSULTANT, seek legal advice, the advice of an Insurance counselor, or other consultant(s), as CLIENT deems
appropriate for such examination. If any document requires CLIENT to approve, comment, or to provide any decision or
direction, such approval, comment, decision or direction shall be provided within a reasonable time within the context of
the schedule for the Services ( "Project Schedule ").
5.4 CLIENT shall arrange for access to and make all provisions for CONSULTANT to enter upon public and private
property as required for CONSULTANT to properly perform the Services.
5.5 CLIENT shall obtain, where applicable, the following:
5.5.1 All published advertisements for bids;
5.5.2 All permits and licenses that may be required of CLIENT by local, state, or federal authorities;
6.5.3 All necessary land, easements, and rights -of -way;
5.5.4 All Items and services not specifically covered by the terms and conditions of thls Agreement.
5.6 If the Services Involve a construction phase of the Project, CLIENT shall require all construction contractor
covered by the CLIENT's contracts related to the Project, to defend, indemnify and hold CONSULTANT harmless to the
same extent that the contractor is obligated to defend, Indemnify and hold CLIENT harmless and also require the
contractor to add CONSULTANT as an additional Insured on the contractor's Commercial General Liability and Auto
Liability insurance policies applicable to the Protect. CLIENT shall also require the construction contractor to assume sole
and complete responsibility for Protect site health and safety during the course of construction, including but not limited to
the safety of all persons and property related to the Protect.
5.7 CLIENT shall pay for any costs associated with the above items.
6 CONSULTANTS RESPONSIBILITIES
6.1 CONSULTANT shall designate a project manager for the performance of the Services.
6.2 CONSULTANT shall perform the Services as an independent contractor and not as CLIENT's agent or
employee. CONSULTANT shall be solely responsible for the compensation, benefits, contributions and taxes, if any, of
its employees and agents.
6.3 The standard of care applicable to CONSULTANT's Services will be the degree of skill and diligence normally
employed by professional consultants performing the same or similar services at the time and location said Services are
performed. CONSULTANT will re- perform any Services not meeting this standard without additional compensation.
6.4 CONSULTANT may, during the course of Its Services, prepare opinions of the probable cost of construction.
CLIENT acknowledges, however, that CONSULTANT has no control over costs of labor, materials, competitive bidding
environments and procedures, unknown field conditions, financial and /or market conditions or other factors affecting the
cost of the construction and the operation of the facilities, all of which are beyond CONSULTANT's control and are
unavoidably In a state of change. CLIENT therefore acknowledges that CONSULTANT cannot and does not make any
warranty, promise, or representation, either express or implied, that proposals, bids, opinions of probable construction
costs, or cost of operation or maintenance will not vary substantially from its probable cost estimates.
6.5 When CONSULTANT provides on -site monitoring personnel during construction as part of its Services, the on-
site monitoring personnel will notify CLIENT of any observed defects in the Work; will otherwise make reasonable efforts
to guard CLIENT against defects and deficiencies In the work of the contractor(s) and will help to determine if the
provisions of the contract documents are being fulfilled. Providing on -site monitoring personnel will not, however, cause
CONSULTANT to be responsible for those duties and responsibilities which belong to the construction contractor, and
which include, but are not Nmited to, full responsibility for the means, methods, techniques, sequences and progress of
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Consulting Services [Hourly Rate) (HAZ) (Rev. 9 -30 -2009) (City of Dubuque — 10-10)
construction, and the health and safety precautions Incidental thereto, and for performing the construction in accordance
with the contract documents.
6.6 In addition to or in lieu of on -site personnel, CONSULTANT's oft -site staff may periodically visit the Project site
as part of its Services. Such periodic visits and any observations made by CONSULTANT during such periodic visits
shall not make CONSULTANT responsible for, nor relieve the construction contractor of the sole responsibility for all
construction means, methods, techniques, sequences and progress of construction, and the health and safety
precautions incidental thereto, and for performing the construction In accordance with the contract documents.
6.7 All samples, sample residues, and byproducts from the sample testing process relating to the Services shall be
disposed of by CONSULTANT M accordance with applicable Law. If included In the Scope of Services, CONSULTANT
shall also dispose of all non - hazardous waste generated in the performance of the Services.
6.8 CONSULTANT shall not arrange or otherwise be responsible for the disposal of any regulated waste, including
but not limited to toxic, radioactive or hazardous substances, wastes or materials ( "Hazardous Wastes ") associated with
the Services, either directly or indirectly through its subcontractors or others. CONSULTANT, at CLIENT's request, may
assist the CLIENT in Identifying or evaluating disposal alternatives for the off-site treatment, storage or disposal of
Hazardous Wastes, but neither CONSULTANT nor others for whom CONSULTANT bears responsibility related to the
Services shall make any independent determination relating to the selection of a treatment, storage or disposal facility or
sign any hazardous waste manifest.
7 CHANGE ORDERS
7.1 CLIENT or CONSULTANT may, from time to time, request modifications or changes in the Services. To the
extent that the Services to be performed by CONSULTANT has been affected by the change, CONSULTANT's
Compensation and Project Schedule shall be equitably adjusted. All changes shall be set forth In a written Change
Order, and executed by both parties.
8 FORCE MAJEURE
8.1 Neither party shall be responsible for a delay in Its performance under this Agreement, other than a delay In
payment for Services already performed, If such delay is caused by extraordinary weather conditions or other natural
catastrophes war, terrorism, riots, strikes, lockouts or other industrial disturbances, acts of any governmental agencies or
other events beyond the reasonable control of the claiming party. CONSULTANT shall be entitled to an equitable
adjustment to the Compensation and the Project Schedule as a result of any such delay.
9 CONFIDENTIALITY
9.1 CONSULTANT shall treat as confidential and proprietary all information and data gathered from any source or
developed relative to the Project. Confidential information shall not be disclosed to any third party, other than
CONSULTANT's subcontractors or subconsultants, during or subsequent to the term of this Agreement. Nothing
contained herein shall preclude CONSULTANT from disclosing Information or data: (1) in the public domain without
breach of this Agreement; (II) developed independently by CONSULTANT without reference to CLIENT's Information or
data; (Iii) where disclosure or submission to any govemmental authority Is required by applicable statutes, ordinances,
codes, regulations, consent decrees, orders, judgements, rules, and all other requirements of any and all governmental
or judicial entitles that have jurisdiction over the Services ( "Law"), but only after written notice has been given to CLIENT.
10 RIGHTS IN DATA
10.1 All right, title and interest in and to the work products provided by CONSULTANT to CLIENT shall be the
property of CLIENT ("Work Product "). Methodologies, process know -how and other instruments of service used to
prepare the Work Product shall remain the property of CONSULTANT. Any modification or reuse of the Work Product
without written verification or adaptation by CONSULTANT for the specific purpose Intended will be at CLIENT's sole risk
and without liability or legal exposure to CONSULTANT or to CONSULTANT'S subcontractors and subconsultants.
11 INSURANCE
11.1 CONSULTANT will furnish to CLIENT copies of Insurance certificates evidencing that it maintains the following
coverages while performing Services, subject to the terms and conditions of the policies:
ECEE 61,1401
Workers Compensation Statutory
Employers' Liability $1,000,000 policy limit
Commercial General Liability $1,000,000
Automobile Liability $1,000,000
Professional Liability $1,000,000
Contractors Pollution Liability $1,000,000
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Consulting Services [Hourly Rate) (HAZ) (Rev. 9 -30 -2009) (City of Dubuque — 10-10)
11.2 CONSULTANT will fumish CLIENT with certificates of insurance verifying the above referenced coverages and
stating that the insurance cancer will provide CLIENT with thirty days prior written notice of insurance cancellation or
reduction below the above listed requirements. CONSULTANT shall list CLIENT as an additional insured on the
Commercial General Liability and the Automobile Liability insurance.
12 INDEMNITY
12.1 CONSULTANT agrees to indemnify CLIENT, its officers, directors and employees, from loss or damage for
bodily injury or property damage, ( "Claims "), to the extent caused by the negligence of CONSULTANT in the
performance of the Services. This obligation to indemnify CLIENT shall not impose any obligation on CONSULTANT
that exceeds the Limitation of Liability provisions set forth below.
12.2 IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSE-
QUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR INTERRUPTION OF
BUSINESS) ARISING OUT OF OR RELATED TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13 LIMITATION OF LIABILITY
13.1 RECOGNITION OF THE RELATIVE RISKS AND BENEFITS OF THE PROJECT TO BOTH THE CLIENT AND
CONSULTANT, THE PARTIES AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO LIMIT THE
AGGREGATE LIABILITY OF CONSULTANT, ITS PARENT, AFFILIATES AND SUBCONTRACTORS, AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, TO THE AMOUNT OF THE INSURANCE
CONSULTANT IS REQUIRED TO EVIDENCE UNDER THE TERMS OF SECTION 11.1. THIS LIMITATION OF
LIABILITY SHALL APPLY TO ALL SUITS, CLAIMS, ACTIONS, LOSSES, COSTS (INCLUDING ATTORNEY FEES)
AND DAMAGES OF ANY NATURE ARISING FROM OR RELATED TO THIS AGREEMENT AND WITHOUT REGARD
TO THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED.
13.2 CONSULTANT MAY AGREE, AT CLIENT'S REQUEST, TO INCREASE THIS LIMITATION OF LIABILITY TO A
GREATER SUM IN EXCHANGE FOR A NEGOTIATED INCREASE IN CONSULTANTS FEE. ANY INCREASE IN THIS
LIMITATION OF LIABILITY MUST BE IN WRITING AS A FORMAL AMENDMENT TO THIS AGREEMENT AND MUST
BE SIGNED AND DATED BY AUTHORIZED REPRESENTATIVES OF EACH PARTY. ANY ADDITIONAL CHARGE
FOR HIGHER LIABILITY IS CONSIDERATION FOR THE GREATER RISK ASSUMED BY CONSULTANT AND IS NOT
A CHARGE FOR ADDITIONAL INSURANCE.
13.3 BY ENTERING INTO THIS AGREEMENT, THE PARTIES ACKNOWLEDGE THAT THIS LIMITATION OF
LIABILITY CLAUSE HAS BEEN REVIEWED, UNDERSTOOD, IS A MATERIAL PART OF THIS AGREEMENT, AND
EACH PARTY HAS HAD THE OPPORTUNITY TO SEEK LEGAL ADVICE REGARDING THIS PROVISION.
14 PREEXISTING CONDITIONS
14.1 CLIENT hereby understands and agrees that CONSULTANT has not created nor contributed to the creation or
existence of any Hazardous Substances at or related to the Project site or in connection with or related to this
Agreement. The compensation to be paid CONSULTANT for the Services is in no way commensurate with, and has not
been calculated with reference to, the potential risk of injury or Toss which may be caused by the exposure of persons or
property to such Hazardous Substances. Therefore, to the fullest extent permitted by law, CLIENT agrees to defend,
Indemnify, and hold CONSULTANT, Its officers, directors, employees, and consultants, harmless from and against any
and all claims, damages, and expenses, whether direct, indirect, or consequential, including but not limited to attorney's
fees and court costs, arising out of, or resulting from the threatened or actual release of Hazardous Substances
( "Release"), except to the extent that such Release is caused by the negligence of CONSULTANT. Nothing contained
within this Agreement shall be construed or Interpreted as requiring CONSULTANT to assume the status of a generator,
arranger, transporter or as a storage, treatment or disposal facility as those terms appear within applicable Law.
15 SUSPENSION
15.1 CLIENT may, at any time and without cause, suspend the Services of CONSULTANT, or any portion thereof for
a period of not more than 90 days by notice in writing to CONSULTANT. CONSULTANT shall resume the Services on
receipt from CLIENT of a written notice of resumption of the Services. If such suspension causes an increase in
CONSULTANT's cost or a delay in the performance of the Services, then an equitable adjustment shall be made to the
Compensation and Project Schedule, as appropriate. In the event that the period of suspension exceeds 90 days, the
contract time and compensation are subject to renegotiation.
16 TERMINATION
16.1 CLIENT may terminate all or part of this Agreement for CLIENT's convenience by providing 10 days written
notice to CONSULTANT. In such event, CONSULTANT will be entitled to Compensation for the Services performed up
to the effective date of termination plus compensation for reasonable termination expenses. CONSULTANT will not be
entitled to compensation for profit on Services not performed.
17 DISPUTES RESOLUTION — ARBITRATION
17.1 Any dispute arising between the parties conceming thls Agreement or the rights and duties of either party in
relation thereto shall first be submitted to a panel consisting of at least one representative of each party who shall have
the authority to enter into an agreement to resolve the dispute. The disputes panel shall be conducted in good faith,
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Consulting Services (Hourly Rate) (HAZ) (Rev. 9 -30 -2009) (City of Dubuque — 10-10)
either physically or electronically, within two weeks of a request by either party. No written, verbal or electronic
representation made by either party during the course of any panel proceeding or other settlement negotiations shall be
deemed to be a party admission.
17.2 If the panel fails to convene within two weeks, or if the panel is unable to reach resolution of the dispute, then
either party may submit the dispute for binding arbitration to be held in accordance with the Construction Industry Rules
of the American Arbitration Association (`Association ") in effect at the time that the demand for arbitration is filed with the
Association. Either party may file in the manner provided by the Rules of the Association, a Demand for Arbitration at
any time. The arbitrator or arbitrators appointed by the Association shall have the power to award to either party to the
dispute such sums, costs, expenses, and attorney's fees as the arbitrator or arbitrators may deem proper.
18 NOTICE
18.1 Any notice or communication required or permitted by this Agreement shall be deemed sufficiently given if In
writing and when delivered personally or 48 hours after deposit with the a recelpted commerdal courier service or the
U.S. Postal Service as registered or certified mail, postage prepaid, and addressed as follows:
CLIENT
City of Dubuque
501 West 13'" Street
Dubuque, IA 52001
Attn: Mr. Steve Brown
CONSULTANT
MWH Americas, Inc.
11153 Aurora Avenue
Des Moines, IA 50322
Attn: Brian C. Broderick, P.E.
or to such other address as the party to whom notice Is to be given has fumished to the other party(les) in the manner
provided above.
19 SURVIVAL OF CONTRACT TERMINATION
19.1 The Articles relating to Indemnification, Limitation of Liability, Preexisting Conditions, Data Rights,
Confidentiality, Governing Law and Venue shall survive completion of the Services, payment in full of the Compensation
and termination of this Agreement.
20 MISCELLANEOUS
20.1 Governing Law. The validity, construction and performance of thls Agreement and all disputes between the
parties arising out of this Agreement or as to any matters related to but not covered by this Agreement shall be govemed
by the laws, without regard to the laws as to choice or conflict of laws, of the State where the Project is located.
20.2 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned by any party, other
than to a party's affiliate, parent or subsidiary, without the prior written consent of the other party(les).
20.3 j3indina Effect. The provisions of this Agreement shall bind and inure to the benefit of the parties and their
respective successors and permitted assigns.
20.4 Parties in Interest. Nothing in this Agreement, expressed or implied, Is intended to confer on any person or
entity other than the parties any right or remedy under or by reason of this Agreement.
20.5 Counterparts. This Agreement may be executed In one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute a single agreement.
20.6 Amendment and Waiver. This Agreement may be amended, modified or supplemented only by a writing
executed by each of the parties. Any party may In writing waive any provisions of this Agreement to the extent such
provision is for the benefit of the waiving party. No action taken pursuant to this Agreement shall be deemed to
constitute a waiver of any other party's compliance with provisions of this Agreement. No waiver by any party of a
breach of any provision of this Agreement shall be construed as a waiver of any subsequent or different breach, and no
forbearance by a party to seek a remedy for noncompliance or breach by another party shall be construed as a waiver of
any right or remedy with respect to such noncompliance or breach.
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Consulting Services [Hourly Rate] (HAZ) (Rev. 9 -30 -2009) (City of Dubuque — 10-10)
20.7 Venue, Jurisdiction and Process. The parties agree that any arbitration proceeding arising out of this
Agreement or for the interpretation, performance or breach of this Agreement, shall be instituted in the County where the
Project is located, and each party irrevocably submits to the jurisdiction of such proceeding and waives any and all
objections to jurisdiction or venue that it may have under the laws of that state or otherwise in such proceeding.
20.8 Severabllity. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the
other provisions, and this Agreement shall be construed in all respects as if any invalid or unenforceable provision were
omitted.
20.9 Preparation of Agreement. All provisions of this Agreement have been subject to full and careful review by and
negotiation between CONSULTANT and CLIENT. Each such party has availed itself of such legal advice and counsel as
it, respectively, has deemed appropriate. The parties hereto agree that neither one of them shall be deemed to be the
drafter or author of this Agreement, and in the event this Agreement Is subject to interpretation or construction by a court
of law or panel of arbitration, such court or panel shall not construe this Agreement or any portion hereof against either
party as the drafter of this Agreement.
20.10 Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties
pertaining to the subject matter of this Agreement, and supersedes all prior agreements, understandings, negotiations,
representations and discussions, whether verbal or written, of the parties, pertaining to that subject matter.
CLIENT n4
Signature
Name (Printed or Typed)
v) 14 /Ilye i
Date
CONSULTANT
Signature
Brian C. Broderick, P.E.
Name (Printed or Typed)
/a—// -ad) la
Date
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Consulting Services [Hourly Rate] (HAZ) (Rev. 9-30-2009) (City of Dubuque - 10-10)
Attachment A
SCOPE OF SERVICES
1. PROJECT DESCRIPTION
The Services to be performed by CONSULTANT shall be as follows:
In accordance with MWH Americas, Inc.'s "Proposal for Environmental Consulting Services" to Mr. Steve
Brown.
2. PROJECT SCHEDULE
In accordance with MWH Americas, Inc.'s "Proposal for Environmental Consulting Services" to Mr. Steve
Brown.
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Consulting Services [Hourly Rate] (HAZ) (Rev. 9-30 -2009) (City of Dubuque — 10-10)