R2005-0166 10-31-05 RESOLUTION NO. R2005-166
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A CONTRACT\ WITH BERG OLIVER ASSOCIATES,
INC., FOR ENVIRONMENTAL MONITORING SERVICES ASSOCIATED
WITH THE PEARLAND PARKWAY WETLANDS MITIGATION PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract by and between the City of Pearland and Berg
Oliver Associates, Inc., a copy of which is attached hereto as Exhibit "A" and made a part
hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a contract with Berg Oliver Associates, Inc., for
Environmental Monitoring Services associated with the Pearland Parkway Wetlands
Mitigation Project.
PASSED, APPROVED and ADOPTED this the 31st day of October
A.D., 2005.
TOM REID
MAYOR
ATTEST:
UNG N 1 R
Y CRETA`
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
EXHIBIT
A
CITY OF PEARLAND
STANDARD AGREEMENT
FOR ENGINEERING SERVICES
This Contract (Contract) is made between the City of Pearland, Texas
(hereinafter "City"), and Berg Oliver Associates, Inc. (hereinafter"Engineer") as follows:
1. Summary of Contract Terms. The following information and referenced documents
shall be a part of this Contract:
Description of Project: Provide environmental monitoring for the Pearland Parkway
Wetlands Mitigation Project.
Engineer/Subconsultant(s) Fee Basis of Compensation
Berg Oliver Associates, Inc. $45,500.00 Lump Sum
Maximum Contract Amount $45,500.00 Lump Sum
*All financial obligations created by this agreement are between the City and
Engineer, and shall not be construed to be between City and any subconsultant.
Delivery of plans, specifications and estimates: See schedule
Attachments: Scope of Services — Exhibit A
Scope of Services — Exhibit B
2. Services and Payment.
Engineer shall perform services within the Standard of Care of the Engineering
profession as follows:
A. Engineer will furnish services to the City in accordance with the terms and
conditions specified in this Contract. Payment for the services of Engineer shall be due
and payable upon submission and approval of a statement for services to City.
Statements for services shall not be submitted more frequently than monthly.
After consultation with the City, the Engineer shall specify the basis of
compensation in the scope of work for the project. The Engineer shall provide adequate
detail of the basis of compensation so that the City can determine the reasonableness
of the fees and have the ability to make reasonable progress payments to the Engineer
based upon work completed at the payment intervals. The Engineer shall subcontract
for all subconsultants, subject to City approval, necessary to complete the scope of
work. The subconsultant's fees and administrative mark-up, if any, shall be included in
the scope of work. Unless otherwise agreed upon, the method of compensation shall
be one of the following methods:
1. Salary Cost Times Multiplier Plus Direct Nonsalary Expense ("Salary")
Compensation shall be based on 1) the direct salaries (including benefits)
of the Engineer's employees whose time is directly chargeable to the
project; 2) an agreed upon multiplier to compensate the Engineer for
overhead and profit; and 3) reimbursement for direct nonsalary
expenditures and subconsultant contracts as defined in the scope of work
for the project. The Engineer shall provide a proposal that includes the
total fees for the project, which shall not be exceeded without prior City
approval.
2. Per Diem ("Per Diem")
Compensation shall be based upon 1) an agreed upon lump sum per day
for specific services; and 2) reimbursement for direct nonsalary
expenditures and subconsultant contracts as defined in the scope of work
for the project. This method is best suited to expert witness work or other
short-term engagements involving intermittent services.
3. Cost Plus Fixed Fee ("Cost Plus")
Compensation shall be based upon 1) reimbursement of the actual costs
of all services and supplies related to the project and 2) an agreed upon
fixed fee (profit). The Engineer shall provide an estimate of the costs to
be reimbursed, but actual compensation shall be based upon invoices and
supporting documentation provided by the Engineer.
4. Lump Sum ("Lump")
Compensation shall be based upon an agreed lump sum payment for
completing the entire scope of work. This method is best suited to
investigations or studies and for basic services with limited scope and
complexity.
5. Percent of Construction ("Percent")
Compensation shall be based upon 1) the "Harris County Curve for
Engineering Compensation" for basic and construction phase services;
and 2) reimbursement for direct nonsalary expenditures and subconsultant
contracts as defined in the scope of work for the project. The Engineer
shall provide a proposal that includes the estimated construction cost of
the project and the total fees for the project. If the actual low bid for
construction is 20% above or below the estimate, the engineering fees are
subject to equitable adjustment by mutual agreement of the Engineer and
City.
2
If City fails to make any payment due Engineer for services and expenses within
thirty (30) days after receipt and approval of Engineer's statement for services therefore,
the amounts due Engineer will be increased at the rate of one half percent (1/2%) per
month from said thirtieth (30th) day, and, in addition, Engineer may, after giving seven
(7) days' written notice to City, suspend services under this Contract until Engineer has
been paid in full, all amounts due for services, expenses, and charges.
B. All the Engineer's working drawings, plans, and specifications, if required under
this Contract, shall b,e sufficiently accurate, detailed, and complete so that competitive
bids for the work can be obtained and the improvements constructed.
C. Approval of the Engineer's work by the City shall not release the Engineer, its
employees, agents, or consultants, from the responsibility and liability for the accuracy
and competency of their designs, working drawings, and specifications, or other
documents and services.
D. Subject to Article 8 herein or as otherwise agreed, the Engineer shall promptly
correct errors in the Engineer's work, including errors discovered after final payment,
without receiving additional compensation.
E. Prior to execution of this agreement, the Engineer shall have prepared a project
schedule identified as an attachment to this agreement. The Project Schedule shall be
submitted in digital and paper form, in the Microsoft Project for Windows format. The
Project Schedule shall contain a complete schedule so that the Engineer's scope of
services under this contract can be accomplished within the specified time and contract
cost. The Project Schedule will provide specific work sequence and definite review
times by the City and the Engineer of the work performed. If the review time should
take longer than shown on the project schedule, through no fault of the Engineer,
additional contract time may be authorized by the City through a supplemental
agreement, if requested by a timely written request from the Engineer and approved by
the City.
3. Term and Termination. This Contract term will begin upon execution and end sixty
days after issuance of the certification of completion of construction by the Engineer.
The City may terminate this Contract at any time during its term by giving written notice
to Engineer. The City shall pay the Engineer for all services rendered to the date of
termination.
4. Modifications. City without invalidating the Contract, may order changes within the
general scope of the work required by the Contract by altering, adding to and/or
deducting from the work to be performed. If any change under this clause causes an
increase or decrease in Engineer's cost of, or the time required for, the performance of
any part of the Services under the Contract, an equitable adjustment will be made by
mutual agreement and the Contract modified in writing accordingly.
3
5. Subcontracts. If, for any reason, at any time during the progress of providing
services, City determines that any subcontractor for Engineer is incompetent or
undesirable, City will notify Engineer accordingly and Engineer shall take immediate
corrective action, which may include cancellation of such subcontract. Subletting by
subcontractors shall be subject to the same regulations. Nothing contained in the
Contract shall create any contractual relation between any subcontractor and City.
6. Ownership of Documents. All drawings, report data, and other project information
developed in the execution of the services provided under this Contract shall be the
property of the City upon payment of Engineer's fees for services. Engineer may retain
copies for record purposes. Owner agrees such documents are not intended or
represented to be suitable for reuse by City or others. Any reuse by City or by those
who obtained said documents from City without written verification or adaptation by
Engineer will be at City's sole risk and without liability or legal exposure to Engineer, or
to Engineer's independent associates or consultants, and City shall indemnify and hold
harmless Engineer and Engineer's independent associates and consultants from all
claims, damages, losses, and expenses including attorneys' fees arising out of or
resulting therefrom. Any such verification or adaptation will entitle Engineer to further
reasonable compensation. Engineer may reuse all drawings, report data, and other
project information in the execution of the services provided under this Contract in
Engineer's other activities. Any reuse by Engineer will be at Engineer's sole risk and
without liability or legal exposure to City, and Engineer shall indemnify and hold
harmless City from all claims, damages, losses, and expenses including attorneys' fees
arising out of or resulting therefrom.
7. Insurance.
A. The Engineer shall procure and maintain for the duration of this Agreement,
insurance against claims for injuries to persons, damages to property, or any errors and
omissions relating to the performance of any work by the Engineer, its agents,
employees or subcontractors under this Agreement, as follows:
(1) Workers' Compensation as required by law.
(2) Professional Liability Insurance in an amount not less than $1,000,000 in
the aggregate.
(3) Comprehensive General Liability and Property Damage Insurance with
minimum limits of $1,000,000 for injury or death of any one person,
$1,000,000 for each occurrence, and $1,000,000 for each occurrence of
damage to or destruction of property.
4
(4) Comprehensive Automobile and Truck Liability Insurance covering owned,
hired, and non-owned vehicles, with minimum limits of $1,000,000 for
injury or death of any one person, $1,000,000 for each occurrence, and
$1,000,000 for property damage.
B. The Engineer shall include the City as an additional insured under the policies,
with the exception of the Professional Liability Insurance and Workers' Compensation.
Certificates of Insurance and endorsements shall be furnished to the City before work
commences. Each insurance policy shall be endorsed to state that coverage shall not
be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30)
days prior written notice by certified mail, return receipt requested, has been given to .
the City. Upon request, certified copies of all insurance policies shall be furnished to the
City.
8. Indemnity. Engineer shall indemnify and hold the City, its officers, agents, and
employees, harmless from any claim, loss, damage, suit, and liability of every kind for
which Engineer is legally liable, including all expenses of litigation, court costs, and
attorney's fees, for injury to or death of any person, for damage to any property, or
errors in design, any of which are caused by the negligent act or omission of the
Engineer, his officers, employees, agents, or subcontractors under this Contract.
9. Assignment. Engineer shall not assign this Contract without the prior written
consent of the City.
10. Law Governing and Venue. This Contract shall be governed by the law of the State
of Texas and no lawsuit shall be prosecuted on this Contract except in a court of
competent jurisdiction located in Brazoria County, Texas.
11. Entire Contract. This Contract represents the entire Contract between the City and
the Engineer and supersedes all prior negotiations, representations, or contracts, either
written or oral. This Contract may be amended only by written instrument signed by
both parties. Purchase orders issued under this Agreement shall contain a statement
nullifying additional terms and conditions on the reverse side of the purchase order and
referencing this Agreement.
12. Conflicts in Contract Documents. The above provisions shall govern over any
conflicting provision contained in any referenced contract document specified above.
13. Dispute Resolution Procedures. The Engineer and City desire an expeditious
means to resolve any disputes that may arise between them regarding this Contract. To
accomplish this, the parties agree to mediation as follows: If a dispute arises out of or
relates to this Contract, or the breach thereof, and if the dispute cannot be settled
through negotiation, then the parties agree first to try in good faith, and before bringing
any legal action, to settle the dispute by mediation of a third party who will be selected
by agreement of the parties.
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EXECUTED and EFFECTIVE as of the day of , 20
CITY OF PEARLAND ENGINEER
By: By:
Printed Name: Printed Name:
Title: Title:
STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he/she executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF
, A.D., 20
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
Printed Name:
My Commission Expires:
STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
, known to me to be the person whose name is subscribed to
the foregoing instrument and acknowledged to me that he/she executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF
, A.D., 20
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
Printed Name:
My Commission Expires:
6
•
BERG •• OLIVER ASSOCIATES, INC.
PG OLD`
Inv
Environmental Science,Engineering&Land Use Consultants
14701 St.Mary's Lane, Suite 400, Houston, Texas 77079
�y,�gONME® `Pv (281)589-0898 fax: (281)589-0007
Houston 0 Austin 0 WDBE/HUB 0 www.bergoliver.com
MEMORANDUM
TO: Jennifer Phan
FROM: David Sherrill NO.OF PAGES: 5 (incl. cover)
DATE: October 11,2005
SUBJECT: Environmental Services Proposal
Dear Ms.Phan,
Attached is our proposal/agreement for environmental services for the site discussed with our
firm. Please review the proposal/agreement and, if acceptable, execute the agreement and return
to us by fax at(281) 589-0007.
We look forward to working with you and the City of Pearland on this project. Thank you for
considering Berg♦Oliver Associates,Inc.to assist you with your environmental planning.
Sincerely,
bapk,-;(M.
_ _
David Sherrill ® E C L' 11 VIED
Senior Associate
OCT 14 2005
CITY OF PEARLAND
PROJECTS DEPARTMENT
APPROVED-
Berg♦Oliver Associates,Inc.
BOA project number 4426espr
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am R BERG • OLIVER ASSOCIATES, INC.
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Environmental Science,Engineering&Land Use Consultants
14701 St.Mary's Lane, Suite 400, Houston, Texas 77079
y� ® `�v (281)589-0898 fax: (281)589-0007
�Aow10 Houston 0 Austin 0 WDBE/HUB 0 www.berooliver.com
October 11,2005
Ms.Jennifer Phan (via email:jphan@ci pearlancit us)
City of Pearland
3519 Liberty Drive
Pearland,Texas 77581
Re: Proposal for Monitoring, Maintenance, and Reporting, and Herbicide Spraying of the
approximate 24.7-acre wetland mitigation site, southwest of Mykawa Road and the Sam
Houston Tollway adjacent to Clear Creek, in Harris and Brazoria Counties,Texas.
BOA 6107mnpr
Dear Ms.Phan:
The following proposal is provided to the City of Pearland for environmental services for the
approximate 24.7-acre wetland mitigation site, located southwest of Mykawa Road and the Sam
Houston Tollway adjacent to Clear Creek, in Harris and Brazoria Counties, Texas. Berg•Oliver
Associates, Inc. (Berg•Oliver)will provide special attention to complete the work in a timely and
professional manner. We will begin the assessment upon your acceptance and execution of this
proposal.
At your request, Berg♦Oliver is proposing to provide the following services for the 24.7-acre
mitigation site: I) Monitoring, Maintenance, and Reporting, and II) Herbicide Spraying.
Attachment A describes each service.
PROJECT SCHEDULE
The environmental services will commence once Berg•Oliver has receipt of an executed proposal.
Tasks I and II will be completed as described under the task. The project completion schedule is the
goal of all parties; it does not, however, reflect unusual delays due to forces beyond the control of
Berg♦Oliver and/or modifications to the scope of work based upon actual findings or additional
requests by the City of Pearland or its agents.
Environmental laws, regulations, and policies are in a constant state of change and are subject to
differing interpretations by various agencies. Environmental Permitting with governmental
agencies can be unpredictable. All time frames given to clients by Berg♦Oliver Associates, Inc.
regarding the length of time necessary to obtain a permit, or other agency clearances, are
estimates. The time estimates are based upon Berg♦Oliver Associates, Inc.'s experience in
other similar projects. There are no absolute assurances that can be given for time frames
provided the client for various types of agency clearances or permits. There is also no assurance
that a permit will not be denied by a government agency involved in the issuance of a permit(s).
The client agrees to not hold Berg♦Oliver Associates, Inc. liable for delays, or additional
Berg♦Oliver Associates,Inc.
BOA project number 4426espr
information requests by any governmental agency, in attempting to secure a permit or agency
clearance while acting on behalf of the client.
RIGHT OF ENTRY
Unless otherwise stated, it is assumed that the client has the authority to enter the property for
purposes of conducting environmental assessments and herein grants that authority to Berg•Oliver.
BASIC COMPENSATION AND METHOD OF PAYMENT
Berg*Oliver proposes to provide the environmental services described above to the City of
Pearland for the following lump sum amounts:
TASK I: MONITORING,MAINTENANCE,AND REPORTING $36,500.00 (lump)*
TASK II: HERBICIDE SPRAYING $4,500.00 to$9,000.00 (lump)**
MAXIMUM TOTAL $45,500.00
*If replanting is deemed necessary, a change order request will be submitted to the client.
** This amount assumes that six half-day sprayings will be performed. Each half-day of spraying will be invoiced at
$750.00. If a whole day of spraying is required it will be invoiced at$1,500.00. Invoices for the spraying will be sent
to the City of Pearland after each spraying.
Berg•Oliver will begin the work described herein upon the execution of this proposal by the client.
Invoices for each lump sum amount will be invoiced upon completion of the task. Payment of all
invoices is expected within thirty (30) days of the client's receipt of the invoice submitted by
Berg•Oliver. If invoice is not paid in full in thirty (30) days, interest will accrue at 1.5% per
month(18%per annum).
CONFIDENTIALITY OF ASSESSMENT
The assessment and all related work and services of Berg+Oliver Associates, Inc. are confidential.
Berg•Oliver Associates, Inc. is hereby employed by the City of Pearland pursuant to this contract.
Under such contract relationship, all correspondence, written or oral, which relates to the findings
of this study are, to the extent permitted by law, strictly confidential between the parties hereto,
unless Berg•Oliver Associates, Inc. receives a written request from the client to offer the results of
this study to a third party not a part of this agreement/proposal. Environmental assessments may
occasionally uncover extremely sensitive findings. It is the responsibility of Berg•Oliver
Associates, Inc.to report these findings to our client and to no other party.
Berg•Oliver Associates,Inc.
BOA project number 4426espr
PROPOSAL ACCEPTANCE AND EXECUTION
Acceptance of this proposal will be indicated by the signatures below and will serve as
authorization to proceed with work proposed herein. The signatory below also represents that the
client has, or has secured, the authority to grant permission for Berg♦Oliver Associates, Inc.
personnel to enter the subject property as necessary to conduct these assessments and that such
permission is granted to Berg•Oliver Associates, Inc. by the execution of this agreement/proposal.
If the client is a Corporation or a Partnership then the signature below will also represent the
personal guarantee of the individual signing on behalf of the Client.
IN WITNESS THEREOF, the City of Pearland and Berg.Oliver Associates, Inc. have accepted
and executed this proposal for environmental services on this the day of
,2005.
CITY OF PEARLAND
By:
Authorized Signature
BERG♦OLIVER ASSOCIATES,INC.
By:
David Sherrill
Senior Associate
Berg•Oliver Associates,Inc.
BOA project number 4426espr
ATTACHMENT A
TASK I
MONITORING,MAINTENANCE,AND REPORTING
SCOPE OF WORK
A condition of the permit requires quarterly maintenance and monitoring, and annual reporting to
the U.S.Army Corps of Engineers, for the next five(5)years. Maintenance consists of keeping the
constructed wetlands free of noxious, invasive species, as defined in the permit, along with
maintaining hydrological structures and re-seeding if necessary. Monitoring consists of biologic
assessments of the progress of wetland development and vegetative succession. Once the USACE
has determined that the success criteria has been met, the task will be deemed completed
and all future Maintenance,Monitoring,and Reporting will be unnecessary.
ITEM QUANTITY PRICE
Quarterly Maintenance and 1 per Quarter $1,200.00 per quarter
Monitoring for 5 years
Annual Reporting to the $2,500 per year
USACE for 5 years 1 per Year
Total Maintenance,Monitoring,and Reporting per Year $ 7,300.00
Total Cost for Monitoring,Maintenance,and Reporting for 5 Years=$36,500.00*
*If replanting is deemed necessary, a change order request will be submitted to the client.
Maintenance, Monitoring & Reporting will be invoiced at the time the services are performed. A
copy of each annual monitoring report will be submitted to the client and the USACE.
TASK II
HERBICIDE MAINTENANCE SPRAYING
SCOPE OF WORK
Berg♦Oliver Associates, Inc. recommends that the created wetlands be evaluated and, if needed,
sprayed with herbicide to control invasive species growth, as required by the permit. Berg•Oliver
recommends spraying every three (3) months for the first year, and every six (6) months for the
following year (a total of six sprayings). The price of each periodic spraying will depend on the
quantity of cattail growth. Each spraying will be billed at the following amounts: '/2 day at$750.00
or 1 full day at$1,500.00.
COST OF TASK III: $4,500.00 to$9,000.00 (lump)
* This amount assumes that six half-day sprayings will be performed. Each half-day of spraying will be invoiced at
$750.00. If a whole day of spraying is required it will be invoiced at$1,500.00. Invoices for the spraying will be sent
to the City of Pearland after each spraying.
Berg♦Oliver Associates,Inc.
BOA project number 4426espr