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HomeMy WebLinkAboutPSA - Approve On-Call NPDES MS$ Program Assistance – Christopher B. Burke Engineering, LLC  ELIZABETH A. MARADIK GARY A. GILOT JORDAN V. GATHERS JOSEPH R. MOLNAR MURRAY L. MILLER 1316 COUNTY-CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/ 235-9251 FAX 574/ 235-9171 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS January 25, 2022 Mr. Jon D. Stolz Christopher B. Burke Engineering, LLC 115 W. Washington St., Suite 1368 S Indianapolis, IN 46204 awalus@cbbel-in.com RE: Professional Services Agreement Dear Mr. Stolz: At its January 25, 2022 meeting, the Board of Public Works approved the above referenced agreement to approve On-Call National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) Program Assistance in the amount of $35,000. Enclosed please find a copy of the agreement for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Laura Hensley/Acting Clerk Enclosures Page 1 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of _________________________ (“Effective Date”) between Board of Public Works, City of South Bend, Indiana ("Owner") and Christopher B. Burke Engineering, LLC (Burke) (“Engineer”). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: On-Call NPDES MS4 Program Assistance (“Project"). Engineer’s Services under this Agreement are generally identified as follows: SEE ATTACHED ENGINEER’S SCOPE OF SERVICES – ATTACHMENT A Owner and Engineer further agree as follows: 1.01 Basic Agreement and Period of Service A. Engineer shall provide, or cause to be provided, the services set forth in this Agreement. If authorized by Owner, or if required because of changes in the Project, Engineer shall furnish services in addition to those set forth above. Owner shall pay Engineer for its services as set forth in Paragraphs 7.01 and 7.02. B. Engineer shall complete its services within a reasonable time, or within the following specific time period: 1. January 3, 2022 – Anticipated Notice to Proceed 2. December 31, 2022 – Completion of Project activities C. If the Project includes construction-related professional services, then Engineer's time for completion of services is conditioned on the time for Owner and its contractors to complete construction not exceeding ___ months. If the actual time to complete construction exceeds the number of months indicated, then Engineer's period of service and its total compensation shall be appropriately adjusted. Page 2 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 2.01 Payment Procedures A. Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to Owner on a monthly basis. Invoices are due and payable within 30 35 days of receipt. If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer’s invoice, then the amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day. In addition, Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Engineer has been paid in full all amounts due for services, expenses, and other related charges. Owner waives any and all non-disputed claims against Engineer for any such suspension. Payments will be credited first to interest and then to principal. 3.01 Termination A. The obligation to continue performance under this Agreement may be terminated: 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the Agreement’s terms through no fault of the terminating party. Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. b. By Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer’s responsibilities as a licensed professional; or 2) upon seven days written notice if the Engineer’s services for the Project are delayed for more than 90 days for reasons beyond Engineer’s control. Engineer shall have no liability to Owner on account of a termination by Engineer under Paragraph 3.01.A.1.b. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of a substantial failure under Paragraph 3.01.A.1.a if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of notice; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, by Owner effective upon Engineer's receipt of written notice from Owner. B. The terminating party under Paragraph 3.01.A may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. Page 3 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. In the event of any termination under Paragraph 3.01, Engineer will be entitled to invoice Owner and to receive full payment for all non-disputed services performed or furnished in accordance with this Agreement and all reimbursable expenses incurred through the effective date of termination. 4.01 Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 4.01.B the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators, and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise, nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any contractor, subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 5.01 General Considerations A. The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineer’s services. Subject to the foregoing standard of care, Engineer and its consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. B. Engineer shall not at any time supervise, direct, control, or have authority over any contractor's work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety at the Project site, nor for any failure of a contractor to comply with laws and regulations applicable to such contractor's furnishing and performing of its work. C. This Agreement is to be governed by the law of the state or jurisdiction in which the Project is located. D. Engineer neither guarantees the performance of any contractor nor assumes responsibility for any contractor’s failure to furnish and perform its work in accordance with the contract between Owner and such contractor. Engineer is not responsible for variations between actual construction bids or costs and Engineer's opinions or estimates regarding construction costs. Page 4 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. E. Engineer shall not be responsible for the acts or omissions of any contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineer’s own employees) at the Project site or otherwise furnishing or performing any construction work; or for any decision made regarding the construction contract requirements, or any application, interpretation, or clarification of the construction contract other than those made by Engineer. F. The general conditions for any construction contract documents prepared hereunder are to be the “Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Documents Committee (EJCDC C-700, 2007 Edition) unless the parties agree otherwise. G. The Owner acknowledges the Engineer’s construction documents, including all electronic files, as instruments of professional services. Owner shall have a limited license to use the documents on the Project, extensions of the Project, and for related uses of the Owner, subject to the following limitations: (1) Owner acknowledges that such documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner’s sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and consultants; (3) Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and consultants from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from any use, reuse, or modification of the documents without written verification, completion, or adaptation by Engineer; and (4) such limited license to Owner shall not create any rights in third parties. Nevertheless, the final construction documents, including all electronic files, prepared under this agreement shall become the property of the Owner upon completion of services and payment in full of all monies due to the Engineer. H. To the fullest extent permitted by law, Owner and Engineer (1) waive against each other, and the other’s employees, officers, directors, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project, and (2) agree that Engineer’s total liability to Owner under this Agreement shall be limited to $50,000 or the total amount of compensation received by Engineer, whichever is greater. I. The parties acknowledge that Engineer’s scope of services does not include any services related to a Hazardous Environmental Condition (the presence of asbestos, PCBs, petroleum, hazardous substances or waste as defined by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq., or radioactive materials). If Engineer or any other party encounters a Hazardous Environmental Condition, Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (2) warrants that the Site is in full compliance with applicable Laws and Regulations. J. Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute. If negotiations are unsuccessful in resolving the dispute, then the dispute shall be mediated. If mediation is unsuccessful, then the parties may exercise their rights at law. Page 5 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 6.01 Total Agreement A. This Agreement (including any expressly incorporated attachments), constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. 7.01 Basis of Payment—Hourly Rates Plus Reimbursable Expenses A. Using the procedures set forth in Paragraph 2.01, Owner shall pay Engineer as follows: 1. An amount equal to the cumulative hours charged to the Project by each class of Engineer’s employees times standard hourly rates for each applicable billing class for all services performed on the Project, plus reimbursable expenses and Engineer’s consultants’ charges, if any. 2. Engineer’s Standard Hourly Rates are attached as Appendix 1. 3. The total compensation for services and reimbursable expenses is estimated to be $35,000. 7.02 Additional Services: For additional services of Engineer’s employees engaged directly on the Project, Owner shall pay Engineer an amount equal to the cumulative hours charged to the Project by each class of Engineer’s employees times standard hourly rates for each applicable billing class; plus reimbursable expenses and Engineer’s consultants’ charges, if any. Engineer's standard hourly rates are attached as Appendix 1. Attachments: Appendix 1, Engineer's Standard Hourly Rates Attachment A: Scope of Services Page 6 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: Engineer: City of South Bend, Indiana Board of Public Works Christopher B. Burke Engineering, LLC By: By: Title: Gary A. Gilot, President Title: Jon D. Stolz, Managing Vice President By: Title: Genevieve E. Miller, Member By: Title: Elizabeth A. Maradik, Member By: Title: Therese J. Dorau, Member By: Title: Laura L. O’Sullivan, Member Attest: Title: Linda Martin, Clerk Date: Date: December 1, 2021 Engineer License or Firm's Certificate No. 45-3940525 State of: Indiana Address for giving notices: Address for giving notices: 227 West Jefferson Boulevard South Bend, Indiana 46601 115 W. Washington St., Ste. 1368 S Indianapolis, IN 46204 Designated Representative (Paragraph 8.03.A): Designated Representative (Paragraph 8.03.A): Kara M. Boyles, Ph.D., P.E. Alan J. Walus Title: City Engineer Title: Senior Project Manager Phone Number: (574) 235-5933 Phone Number: (574) 282-8001 Facsimile Number: (574) 235-9171 Facsimile Number: (317) 632-3306 E-Mail Address:kboyles@southbendin.gov E-Mail Address:awalus@cbbel-in.com January 25, 2022 Appendix 1, Standard Hourly Rates Schedule and Attachment A, Scope of Services EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ©2009 National Society of Professional Engineers for EJCDC. All rights reserved. Page 1 This is Appendix 1, Engineer’s Standard Hourly Rates, referred to in and part of the Short Form of Agreement between Owner and Engineer for Professional Services dated _____________, 2021. Engineer’s Standard Hourly Rates A.Standard Hourly Rates: 1.Standard Hourly Rates are set forth in this Appendix 1 and include salaries and wages paid to personnel in each billing class plus the cost of customary and statutory benefits, general and administrative overhead, non-project operating costs, and operating margin or profit. 2.The Standard Hourly Rates apply only as specified in Paragraphs 7.01 and 7.02, and are subject to annual review and adjustment. B.Schedule of Hourly Rates: Hourly rates for services performed on or after the Effective Date are: Personnel ($/Hr) Engineer VI ............................................................................................................................................................... 216 Engineer V ................................................................................................................................................................. 197 Engineer IV ............................................................................................................................................................... 172 Engineer III ............................................................................................................................................................... 144 Engineer I/II ............................................................................................................................................................. 113 Resource Planner V .................................................................................................................................................. 160 Resource Planner IV ................................................................................................................................................ 150 Resource Planner III ............................................................................................................................................... 130 Resource Planner I/II ............................................................................................................................................. 105 Engineering Technician IV..................................................................................................................................... 155 Engineering Technician III .................................................................................................................................... 139 Engineering Technician I/II .................................................................................................................................. 105 CAD II ........................................................................................................................................................................ 130 CAD I ......................................................................................................................................................................... 107 GIS Specialist IV ...................................................................................................................................................... 155 GIS Specialist III ...................................................................................................................................................... 139 GIS Specialist I/II .................................................................................................................................................... 100 Environmental Resource Specialist V .................................................................................................................. 151 Appendix 1, Standard Hourly Rates Schedule and Attachment A, Scope of Services EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ©2009 National Society of Professional Engineers for EJCDC. All rights reserved. Page 2 Environmental Resource Specialist IV ................................................................................................................ 139 Environmental Resource Specialist III ................................................................................................................ 125 Environmental Resource Specialist I/II .............................................................................................................. 105 Environmental Resource Technician ..................................................................................................................... 99 Administrative ............................................................................................................................................................. 75 Engineering Intern ..................................................................................................................................................... 60 Information Technician I/II .................................................................................................................................... 75 Direct Costs Outside Copies, Blueprints, Messenger, Delivery Services, Mileage ............................................. Cost + 12% 2022 MS4 Services December 1, 2021 Attachment A Page 1 Christopher B. Burke Engineering, LLC 220 West Colfax Avenue Suite 500 South Bend, IN 46601 574.282.8001 cbbel-in.com ATTACHMENT A – SCOPE OF SERVICES It is our understanding that the City of South Bend has a need for professional engineering and planning services related to implementation of the National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) requirements. The professional services provided through this contract will consist of ongoing support to complete the required MS4 permit activities and providing as-needed support services to assist the City. These services will focus on the challenging need to meet IDEM’s new MS4 general permit. Burke will complete the following tasks as part of this contract: Task 1 – MS4 Program Assessment: Burke will review and assess the status of the City’s current MS4 program to determine and identify items needed for compliance and the overall, long-term health of the program. We will compare the City’s existing Stormwater Quality Management Plan: Part C documents with two most recent Annual Reports. The results of this assessment will be used to guide the development of the City’s Stormwater Quality Management Plan in Task 2. Task 2 – Stormwater Quality Management Plan: For MS4s such as the City of South Bend that will be renewing permit coverage as part of the transition to IDEM’s new MS4 general permit, Burke will assist the City in developing an updated SWQMP document to meet the requirements contained in the new MS4 general permit. The SWQMP must be submitted within 180 days of the City’s Notice of Intent submittal and this task will be one of the priority items within the first six months of 2022. Task 3 – New MS4 Permit Compliance Items: In addition to the updated SWQMP of Task 2, there are several other aspects of the new MS4 general permit that have time sensitive deadlines within the first six months and within the first twelve months of the new permit term. Burke staff will be available to assist the City in the completion of these tasks that include: •Updated stormwater pollution complaint investigation procedures •Providing continual access to pollution prevention training for new staff •Updated procedures for the initial inspection of permitted construction sites •Updated procedures for quarterly inspections of County facilities subject to pollution prevention inspections •Verification of post-construction Best Management Practices inventory •Inspections of post-construction BMPs for operational integrity •Procedures for documenting visual inspections of stormwater conveyance system components Task 4 – Miscellaneous As-needed Services: Burke will be available to assist, as needed, with the illicit discharge, detection, and elimination program; post-construction program implementation; the good housekeeping and pollution prevention program; conducting required MS4 staff and/or contractor training; IDEM-required documentation such as the Annual Report; and other duties as assigned by the City. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date: January 13, 2022 Name: Sarah Beam Department of Public Works – Engineering Division BPW Date: January 25, 2022 Phone Extension: 9805 Required Prior to Submittal to Board BPW Attorney X Attorney Name Clara McDaniels Dept. Attorney Attorney Name Clara McDaniels Purchasing Michael Schmidt Check the Appropriate Item Type – Required for All Submissions Professional Services Agreement Contract Proposal Open Market Contract Amendment/Addendum Special Purchase, QPA Bid Opening Bid Award Req. to Advertise Title Sheet Quote Opening Quote Award Reject Bids/Quotes Proposal Opening C/O & PCA No. PCA Chg. Order, No. Traffic Control Resolution Other: Ease./Encroach Required Information Company or Vendor Name New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name On-Call NPDES MS4 Program Assistance Project Number ENG: 122-026 Funding Source Stormwater Professional Services Account No. PR-00014481 Amount $35,000 Terms of Contract Special Contract Provisions Purpose/Description The Division of Engineering requests the Board of Public Works approve the Professional Services Agreement for the subject MS4 program assistance at it 1/25/2022 regular meeting For Change Orders Only Amount of Increase Decrease $ ($ ) Previous Amount $ Current Percent of Change: Increase Decrease % ( %) New Amount $ Total Percent of Change: Increase Decrease % ( %) Time Extension Amount: New Completion Date: