HomeMy Public PortalAbout056-2010 - Metro - AMEC Earth Environmental Inc - Starr-Gennet Clean Up.doc
AGREEMENT
THIS AGREEMENT made and entered into this _17th _ day of _May____, 2010, and referred to as Contract No. 56-2010 by and between the City of Richmond, Indiana, a municipal corporation
acting by and through its Board of Public Works and Safety (hereinafter referred to as the “City”) and AMEC Earth & Environmental, Inc., 201 South Capitol Avenue, Suite 200, Indianapolis,
Indiana, 46225 (hereinafter referred to as the “Contractor”).
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to conduct clean up activities, specifically the implementation of soil removal and site restoration at the former Starr-Gennett property located at 100
South First Street (northern parcel) in Richmond, Indiana (the “Project”). Clean up activities conducted by Contractor shall comply with all applicable federal and state Brownfield
Cleanup Guidelines as explained in part below.
Certain Bid Specifications dated March 1, 2010, have been made available for inspection by Contractor, are on file in the office of the Department of Metropolitan Development for the
City of Richmond, and are hereby incorporated by reference and made a part of this Agreement. Contractor agrees to abide by the same.
The response of Contractor to said Bid Specifications, dated March 25, 2010, is on file in the office of the Department of Metropolitan Development and is incorporated herein by reference
and made a part of this Agreement. A portion of this response, consisting of 21 pages, is attached as Exhibit A to this Agreement and incorporated herein by reference and made a part
of this Agreement.
The Davis-Bacon wage scale (General Decision: IN 20080006) is attached hereto as Exhibit B, which Exhibit is dated January 22, 2010, consists of thirty-nine (39) pages, and is also hereby
incorporated by reference and made a part of this Agreement.
Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with
any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
The Contractor shall furnish all labor, material, equipment, and services necessary which are incidental to the proper completion of all work specified.
No performance of services shall commence until the following has been met:
The City is in receipt of any required certificates of insurance; and
A purchase order has been issued by the Purchasing Department.
Contract No. 56-2010
SECTION II. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision
of the work. Contractor shall be deemed “prime contractor” and/or “subrecipient” and City shall be deemed “award recipient” for purposes of any Brownfield Administrative Conditions,
Guidelines, or Covenants.
SECTION III. COMPENSATION
City shall pay Contractor a total sum not to exceed Ninety-five Thousand Four Hundred Fifteen Dollars and Zero Cents ($95,415.00) for complete and satisfactory performance of the work
required hereunder.
SECTION IV. BROWNFIELD AND CLEANUP GUIDELINES, CONDITIONS, AND COVENANTS
A. DRUG-FREE WORKPLACE CERTIFICATION AND MAINTAINING A DRUG-FREE WORKPLACE (EXECUTIVE ORDER NO. 90-5)
Contractor shall maintain a drug-free workplace pursuant to the specific requirements set forth in Title 40 CFR 36.200-36.230. Contractor understands, acknowledges, and agrees that
the project is a federally funded project and the project location is identified as a Brownfield cleanup location subject to federal drug-free workplace provisions, including but not
limited to Title 40 CFR 36.200-36.230 and Title 40 CFR 36.300 as applicable. Contractor additionally understands, acknowledges, and agrees that the consequences for violating the drug-free
workplace provisions are outlined under Title 40 CFR 36.510.
Contractor covenants and agrees to make a good faith effort to provide and maintain during the term of this Agreement a drug-free workplace and shall assist City with giving notice
to the Indiana Finance Authority within ten (10) days after receiving actual notice that an employee of the Contractor or any subcontractor, who serves in or could be expected to serve
in a capacity related to the Project, is convicted of a criminal drug violation occurring in the Project workplace.
In addition to the above drug-free covenants, if the grant funds exceed $25,000, the Contractor and any subcontractor further agree that this Agreement is expressly subject to the terms,
conditions, and representations of the following certification:
“This certification is required by Executive Order No. 90-5, April 12, 1990, issued by the Governor of Indiana. Pursuant to its delegated authority, the Indiana Department of Administration
is requiring the inclusion of this certification in all contracts and grants from the State in excess of $25,000.00. No award of a contract shall be made, and no contract, purchase
order or agreement, the total amount of which exceeds $25,000.00, shall be valid, unless and until this certification has been fully executed by the Grant Recipient and
made a part of the contract or agreement as part of the contract documents.
“The Grant Recipient certifies and agrees that it will provide a drug-free workplace by:
(1) Publishing and providing to all its employees a statement notifying them that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is
prohibited in the Grant Recipient’s workplace, and specifying the actions that will be taken against employees for violations of such prohibition;
(2) Establishing a drug-free awareness program to inform its employees of (a) the dangers of drug abuse in the workplace; (b) the Grant Recipient’s policy of maintaining a drug-free
workplace; (c) any available drug counseling, rehabilitation, and employee assistance programs; and (d) the penalties that may be imposed upon an employee for drug abuse violations
occurring in the workplace;
(3) Notifying all employees in the statement required by subparagraph (A) above that as a condition of continued employment, the employee will (a) abide by the terms of the statement;
and (b) notify the Grant Recipient of any criminal drug statute conviction for a violation occurring in the workplace not later than five (5) days after such conviction;
(4) Notifying the State within ten (10) days after receiving notice from an employee under subdivision (3)(b) above, or otherwise receiving actual notice of such conviction;
(5) Within thirty (30) days after receiving notice under subdivision (3)(b) above of a conviction, imposing the following sanctions or remedial measures on any employee who is convicted
of drug abuse violations occurring in the workplace: (a) taking appropriate personnel action against the employee, up to an including termination; or (b) requiring such employee to
satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or other appropriate
agency; and
(6) Making a good faith effort to maintain a drug-free workplace through the implementation of subparagraphs (1) through (5) above.”
City and Contractor (and any of Contractor’s subcontractors) further agree that the failure of the Contractor and any subcontractor to comply in good faith with the above drug-free
workplace provisions, or falsifying or otherwise violating any of the above drug-free workplace certification provisions shall constitute a material breach of this Agreement. Any breach
entitles the Indiana Finance Authority to impose sanctions against the Contractor and any subcontractors, including (but not limited to) recovery of the Grant Funds, cancellation of
this Agreement, and debarment of the Contractor or Subcontractor from doing further business with the Indiana Finance Authority or the State of Indiana for up to three (3) years.
B. DBE REQUIREMENTS
In accordance with the Environmental Protection Agency’s (hereinafter “EPA”) Program for Participation by Disadvantaged Business Enterprises in procurement under EPA financial assistance
programs, Contractor, as subrecipient, agrees to comply with 40 CFR 33.301 which sets forth the following:
Sec. 33.301 A recipient, including one exempted from applying the fair share objective requirements by Section 33.411, is required to make the following good faith efforts whenever procuring
construction, equipment, services and supplies under and EPA financial assistance agreement, even if it has achieved its fair share objectives under subpart D of this part:
(a) Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State and Local and Government
recipients, this will include placing DBEs on solicitation lists and soliciting them whenever they are potential sources.
(b) Make information on forthcoming opportunities available to DBEs and arrange time frames for contracts and establish delivery schedules, where the requirements permit, in a way that
encourages and facilitates participation by DBEs in the competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a minimum of thirty (30)
calendar days before the bid or proposal closing date.
(c) Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs. For Indian Tribal, State and local Government recipients, this will
include dividing total requirements when economically feasible into smaller tasks or quantities to permit maximum participation by DBEs in the competitive process.
(d) Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually.
(e) Use the services and assistance of the SBA and the Minority Business Development Agency of the Department of Commerce.
(f) If the prime contractor awards subcontracts, require the prime contractor to take the steps in paragraphs (a) through (e) of this section.
Contractor shall retain records documenting compliance with the above DBE Requirements and shall require the inclusion of the above language in all sub-contracts entered into for this
Project. Contractor understands that the EPA has reserved the right to take corrective action under 40 CFR Parts 30, 31, and 35, as appropriate.
C. RECYCLED PAPER
Contractor, as subrecipient of Grant Funds, agrees to use recycled paper for all reports which are prepared as a part of this Agreement and delivered to the EPA, in accordance with
EPA Order 1000.25 and Executive Order 13101, Greening the Government Through Waste Prevention, Recycling and Federal Acquisition. This requirement does not apply to reports prepared
on forms supplied by EPA, or to Standard Forms, which are printed on recycled paper and are available through the General Services Administration. Please note that Section 901 of E.O.
13101, dated September 14, 1998, revoked E.O. 12873, Federal Acquisition, Recycling, and Waste Prevention in its entirety.
D. PROCUREMENT OF RECYCLED PRODUCTS
Contractor, as subrecipient of Grant Funds, shall comply with the requirements set forth in Section 6002 of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6962). Regulations
issued under RCRA Section 6002 apply to any acquisition of an item where the purchase price exceeds $10,000 or where the quantity of such items acquired in the course of the preceding
fiscal year was $10,000 or more. RCRA Section 6002 requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified
in guidelines developed by the EPA. These guidelines are listed in 40 CFR 247.
E. SMALL BUSINESS IN RURAL AREAS
Contractor agrees to comply with Section 129 of Public Law 100-590, the Small Business Administration Reauthorization and Amendment Act of 1988. Therefore, if Contractor as subrecipient
awards a subcontract under this Agreement, Contractor will utilize the following affirmative steps relative to Small Business in Rural Areas (SBRAs):
(1) Placing SBRAs on solicitation lists;
(2) Ensuring that SBRAs are solicited whenever they are potential sources;
(3) Dividing total requirements when economically feasible, into small tasks or quantities to permit maximum participation by SBRAs;
(4) Establishing delivery schedules, where the requirements of work will permit, which would encourage participation by SBRAs;
(5) Using the services of the Small Business Administration and the Minority Business Development Agency of the U.S, Department of Commerce, as appropriate; and
(6) Requiring the subcontractors to take affirmative steps in subparagraphs (1) through (5) of this condition.
F. SUBAWARDS
The City as recipient has agreed to certain subaward provisions and Contractor, as prime contractor and subrecipient, shall agree to same and require the below subparagraphs in any
subcontract:
(1) Establish all subaward agreements in writing;
(2) Ensure that any subawards comply with the standards in Section 210(a)-(d) of OMB Circular A-133, and are not used to acquire commercial goods or services for the Contractor;
(3) Ensure that any subawards are awarded to eligible subrecipients and that proposed subaward costs are necessary, reasonable, and allocable;
(4) Ensure that any subawards to 501(c)(4) organizations do not involved lobbying activities;
(5) Monitor the performance of subcontractors and ensure that they comply with all applicable regulations, statutes, and terms and conditions which flow down in the subaward;
(6) Obtain EPA’s consent before awarding a subcontract or making a subaward to a foreign or international organization, or a subaward to be performed in a foreign country; and
(7) Obtain approval from EPA for any new subaward work that is not outlined in the approved work plan in accordance with 40 CFR Parts 30.25 and 31.30, as applicable.
G. SUSPENSION AND DEBARMENT: 2 CFR PART 1532
Contractor agrees to fully comply with Subpart C of 2 CFR Part 180 and 2 CFR Part 1532, entitled “Responsibilities of Participants Regarding Transactions (Doing Business with Other
Persons).” Contractor is responsible for ensuring that any subcontracts or lower tier covered transaction as described in Subpart B of 2 CFR Part 180 and 2 CFR Part 1532, entitled
“Covered Transactions,” includes a term or condition requiring compliance with Subpart C. Contractor is responsible for further requiring the inclusion of a similar term or condition
in any subsequent lower tier covered transactions. Contractor, as prime contractor and subrecipient understands, acknowledges, and agrees that the required terms as set forth above
shall be included in all
subcontracts. Additionally, Contractor understands, acknowledges, and agrees that failure to disclose the information as required at 2 CFR 180.335 may result in the delay or negation
of any assistance agreement awarded to the City, or pursuance of legal remedies, including suspension and debarment. Contractor further understands, acknowledges, and agrees that any
failure to disclose information as set forth above may result in the termination of this Agreement.
This term and condition supersedes EPA Form 5700-49, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters.”
H. LOBBYING AND LITIGATION – ALL RECIPIENTS
Contractor understands, acknowledges, and agrees that no Grant Funds shall be used to engage in the lobbying of the Federal Government or in litigation against the United States unless
authorized under existing law. As mandated by this Act, Contractor agrees to provide certification to the award official via EPA Form 5700-53, Lobbying and Litigation Certificate,
within ninety (90) days after the end of the project period. This form can be accessed at http://www.epa.gov/ogd/forms/adobe/5700-53.pdf.
Contractor shall abide by its respective OMB Circular (A-21, A-87, or A-122), which prohibits the use of federal grant funds for litigation against the United States. Any Part 30 recipient
shall abide by its respective OMB Circular (A-21 or A-122), which prohibits the use of Federal Grant Funds to participate in various forms of lobbying or other political activities.
I. CONFLICT OF INTEREST
(1) As used in this section:
“Immediate Family” means the spouse and the emancipated children of an individual.
“Interested Party” means:
(i.) The individual executing this Agreement;
(ii.) Any individual who has an interest of three (3%) percent or more of the Grant Recipient; or
(iii.) Any member of the Immediate Family of the individual specified under subdivision (i.) or (ii.).
“Commission” means the State Ethics Commission.
(2) The Indiana Finance Authority may cancel this Agreement without recourse if an Interested Party is an employee of the Indiana Finance Authority or the State of Indiana.
(3) The Indiana Finance Authority will not exercise its right to cancel this Agreement under this Conflict of Interest provision if the City gives the Indiana Finance Authority an opinion
of the Commission indicating that the
existence of this Agreement and employment by the Indiana Finance Authority or the State of the Interested Party does not violate any statute or code relating to ethical conduct of employees
of the Authority or State employees. The Indiana Finance Authority may take action, including cancellation of this Agreement, consistent with an opinion of the Commission.
(4) The City, as Grant Recipient, has an affirmative obligation under this Agreement to disclose to the Indiana Finance Authority when an Interested Party is, or becomes, an employee
of the Authority or the State. The obligation under the above Conflict of Interest provisions extends only to those facts that the City knows or reasonably should know. Contractor,
as subrecipient, agrees that it shall also comply with the above Conflict of Interest provisions and shall disclose to the Indiana Finance Authority when an Interested Party is or becomes
and employee of the Indiana Finance Authority or the State of Indiana. This obligation of Contractor shall extend only to those facts that Contractor knows or reasonably should have
known. Contractor shall include the above Conflict of Interest provisions in all subcontracts for this project.
SECTION V. TERM OF AGREEMENT
This Agreement shall become effective when signed by all parties and shall continue in effect until August 15, 2010, at which time project shall be completed.
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying
the effective date of termination and the reasons for termination which shall include but not be limited to the following:
(1) failure, for any reason of the Contractor to fulfill in a timely and proper manner its obligations under this Agreement;
(2) submission by the Contractor to the City of reports that are incorrect or incomplete in any material respect;
(3) ineffective or improper use of funds provided under this Agreement;
(4) unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work performed prior to the effective date of termination by Contractor, but shall be relieved of
any other responsibility herein.
This Agreement may also be terminated by either the City or the Contractor, in whole or in part, by mutual Agreement setting forth the reasons for such termination, the effective date,
and in the case of partial termination, the portion to be terminated. This Agreement may also be terminated
by the City, in whole or in part, in the event the grant funding to the City under which this Agreement is made is suspended or terminated.
A force majeure event is an event that includes but is not restricted to: acts of God; acts of a legislative, administrative, or judicial entity; acts of contractors other than contractors
engaged directly by Contractor; fires; floods; labor disturbances; epidemics; and unusually severe weather. In the event that performance of services by Contractor is affected by a
force majeure event that is beyond the Contractor’s reasonable control, Contractor will be granted a time extension and the parties will negotiate an equitable adjustment to the price
of any affected services, where appropriate, based upon the effect of the force majeure event on performance by Contractor. However, City retains the right to terminate as set forth
above and in the event of such termination, the City shall be required to make payment for all work performed prior to the effective date of termination by Contractor, but shall be
relieved of any other responsibility herein.
SECTION VI. WITHHOLDING, RETAINAGE, AND CLAIMS FOR PAYMENTS
Contractor understands, acknowledges and agrees that pursuant to Indiana Code 36-1-12-13 the City must provide for the payment of subcontractors, laborers, material suppliers, and those
performing services under a public works contractor and further agrees that in the event Contractor fails to timely pay any subcontractor, laborer, or material supplier for the performance
of services or delivery of materials under this Agreement that the Board of Public Works and Safety for the City shall withhold payments in an amount sufficient to pay the subcontractors,
laborers, material suppliers, or those providing services. Contractor further understands, acknowledges, and agrees that the Board shall proceed with the proper administrative procedures
initiated as the result of any claims timely filed by any subcontractor, laborer, or material supplier under Indiana Code 36-1-12-12.
SECTION VII. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the Contractor’s conduct or performance
of this Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of
the City, its officers, agents, or employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims
set forth below which may arise out of or result from the Contractor’s operations under this Agreement, whether such operations by the Contractor or by any sub-contractors or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible.
Coverage Limits
A. Worker’s Compensation & Statutory
Disability Requirements
B. Employer’s Liability $100,000
C. Comprehensive General Liability
Section 1. Bodily Injury $300,000 each occurrence
$300,000 aggregate
Section 2. Property Damage $100,000 each occurrence
D. Comprehensive Auto Liability
Section 1. Bodily Injury $300,000 each person
$300,000 each occurrence
Section 2. Property Damage $100,000 each occurrence
E. Comprehensive Umbrella Liability $1,000,000 each occurrence
$1,000,000 each aggregate
SECTION VIII. COMPLIANCE WITH WORKER’S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker’s Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance,
or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer
and therefore subject to another state’s worker’s compensation law, Contractor may choose to comply with all provisions of its home state’s worker’s compensation law and provide the
City proof of such compliance in lieu of complying with the provisions of the Indiana Worker’s Compensation Law.
SECTION IX. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub-contractor, or any person acting on behalf of Contractor or any sub-contractor shall not discriminate against any employee
or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or
indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
1. That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor
or any sub-contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available
to perform the work to which the employment relates;
2. That Contractor, any sub-contractor, or any person action on behalf of Contractor or any sub-contractor shall in no manner discriminate against or intimidate any employee hired for
the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which
such person was discriminated against or intimidated in violation of the provisions of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all monies due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms
or conditions of this section of the Agreement.
C. Pursuant to Indiana Code 22-9-1-10 and the Civil Rights Act of 1964, the Contractor as the subrecipient and any of Contractor’s subcontractors shall not discriminate against any employee
or applicant for employment, to be employed in the performance of this Agreement, with respect to the employee’s or applicant’s hire, tenure, terms, conditions or privileges of employment
or any matter directly or indirectly related to employment, because of the employee’s or applicant’s race, color, religion, sex, disability, national origin, or ancestry. Acceptance
of this Agreement also signifies compliance with applicable Federal laws, regulations, and executive orders prohibiting discrimination in the provision of services based on race, color,
national origin, age, sex, disability, or status as a veteran.
D. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement.
SECTION X. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents of the same from all liability for negligence which may arise in the course of Contractor’s
performance of its obligations pursuant to this Agreement.
SECTION XI. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party.
It shall be controlled by Indiana law and shall be binding upon the parties, their successors and assigns. It constitutes the entire Agreement between the parties, although it may
be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties.
This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and suit arising under this Contract, if any, must be filed in said courts. The parties specifically
agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts.
Any person executing this Contract in a representative capacity hereby warrants that he has been duly authorized by his or her principal to execute this Contract.
In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City due to the enforcement
of this Agreement, including but not limited to City’s reasonable attorney’s fees, whether or not suit is filed.
In the event that an ambiguity or question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and
no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates.
“CITY”
THE CITY OF RICHMOND,
INDIANA by and through its
Board of Public Works and Safety
By:_S/S Vicki Robinson____________
Vicki Robinson, President
By:_S/S Dian Lawson______________
Dian Lawson, Member
By:_S/S Mary Jo Flood_____________
Mary Jo Flood, Member
Date:_May 20, 2010________________
APPROVED:_S/S Sarah L. Hutton___
Sarah L. Hutton, Mayor
Date:_May 21, 2010_________________
“CONTRACTOR”
AMEC EARTH &
ENVIRONMENTAL, INC.
By:_S/S Michael J. Devir_____________
Printed:_Michael J. Devir, PE__________
Title: _Sr. Project Manager ___________
Date:_May 17, 2010 ________________