HomeMy WebLinkAbout11675RESOLUTION NO. 11675
A RESOLUTION APPROVING AN AGREEMENT
BETWEEN THE CITY OF PUEBLO AND NOLTE
ASSOCIATES, INC., FOR PROFESSIONAL ENGINEERING
SERVICES ASSOCIATED WITH THE DEVELOPMENT OF
A PARCEL OF LAND LOCATED IN THE ST. CHARLES
INDUSTRIAL PARK
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement, by and between Pueblo, a Municipal Corporation and Nolte
Associates, Inc., a copy of which is attached hereto, after having been approved as to
form by the City Attorney, is hereby approved.
SECTION 2.
Funds for said professional services shall be paid from Project Account No.
ED0902.
SECTION 3.
The President of the City Council is hereby authorized to execute the said
Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix
the seal of the City thereto and attest the same.
s
INTRODUCED: August 24, 2009
BY: Judy Weaver
COUNCILPERSON
a PPP 0'_
PRESIDE NT-of CARY Council
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Background Paper for Proposed
RESOLUTION
DATE: AUGUST 24, 2009
DEPARTMENT: PUBLIC WORKS
DIRECTOR —EARL WILKINSON, P.E.
TITLE
AGENDA ITEM # M -3
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO
AND NOLTE ASSOCIATES, INC., FOR PROFESSIONAL ENGINEERING SERVICES
ASSOCIATED WITH THE DEVELOPMENT OF A PARCEL OF LAND LOCATED IN
THE ST. CHARLES INDUSTRIAL PARK
ISSUE
Should the City Council enter into an agreement with Nolte Associates, Inc., for the
purpose of performing engineering services associated with the development of a parcel
of land located in the St. Charles Industrial Park?
RECOMMENDATION
Approval of this Resolution.
BACKGROUND
The City is considering purchasing a large parcel of land for a proposed industrial park
development located immediately north of the Vestas Subdivision. Direct rail access to
a main rail line is crucial to the success of most heavy industry industrial parks. The
agreement for professional engineering services will provide for the engineering design
of an industry lead track to service the park.
FINANCIAL IMPACT
The maximum contract price for the work is $350,000 and will be paid from Project
Account No. ED0902.
STANDARD FORM OF
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES
THIS AGREEMENT made and entered this 24` day of August, 2009 by and between the City of
Pueblo, a Municipal Corporation (hereinafter "Owner ") and Nolte Associates, Inc., a professional engineering
firm (hereinafter "Engineer ") for Engineer to render certain professional engineering and related services for
Owner in connection with preparation of a master railroad plan and associated design services for industry rail
spur(s) within the St. Charles Industrial Park, hereinafter referred to as the "Project." In consideration of the
mutual covenants hereinafter set forth, the parties agree as follows:
SECTION 1. GENERAL
1.1 Engineer shall satisfactorily perform professional engineering services for all phases of Project
indicated below by mark placed in the appropriate box or boxes:
[ x ] - Study and Report Phase (Rail Master Plan)
[ x ] - Preliminary Design Phase (Conceptual Rail Design)
[ x ] - Final Design Phase
[ x ] - Construction Documents & Bidding Phase
[ x ] - Construction Phase
Upon completion of any phase, Engineer shall not proceed with work on the next phase, if any, until
authorized in writing by Owner to proceed therewith.
Such services shall include all usual and customary professional engineering services and the furnishing
(directly or through its professional consultants) of customary and usual civil, structural, mechanical, electrical
engineering, environmental, and planning services. Engineer shall also provide any landscape engineering,
surveying and geotechnical services incident to its work on the Project.
1.2 In performing the professional services, Engineer shall complete the work items described
generally in the Request for Qualifications and the items identified in Section 2 of this Agreement which are
applicable to each phase for which Engineer is to render professional services, summarized in Appendix A.
1.3 Professional engineering services (whether furnished directly or through a professional
consultant subcontract) shall be performed under the direction and supervision of a registered engineer in good
standing and duly licensed to practice in the State of Colorado. Reproductions of final drawings for
construction produced under this Agreement shall be the same as at least one record set which shall be
furnished to Owner and which shall be signed by and bear the seal of such registered engineer.
1.4 Surveying work included within or reasonably contemplated by this Agreement shall be
performed under the direction and supervision of a registered Professional Land Surveyor in good standing and
duly licensed to practice in the State of Colorado. All plats and surveys produced under this Agreement shall
be signed by and bear the seal of said Professional Land Surveyor.
1.5 Any engineering services provided under this Agreement shall be performed under the
direction and supervision of a registered professional engineer.
AGREEMENT FOR PROFESSIONAL ENGINEERING SER VICES -MAY 2009
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SECTION 2. ENGINEERING SERVICES
2.1 Study and Report Phase If Engineer is to provide professional services with respect to the
Project during the Study and Report Phase, Engineer shall:
(a) Consult with Owner to determine his requirements for the Project and review available
data.
(b) Advise Owner as to the necessity of his providing or obtaining from others data or
services of the types described in paragraph 2.2(c), and assist Owner in obtaining any such services.
(c) Provide special analyses of Owner's needs, planning surveys, site evaluations and
comparative studies of prospective sites and solutions.
(d) Identify and analyze requirements of governmental authorities and regulatory agencies
involved in approval or permitting any aspect of Project.
alternatives.
(e) Provide general economic analysis of Owner's requirements applicable to various
(f) Prepare a Report with appropriate exhibits indicating clearly the considerations
involved and the alternative solutions available to Owner, and setting forth Engineer's findings and
recommendations with opinions of probable costs.
(g) Furnish 10 copies of the Report and present and review it in person with Owner.
2.2 Preliminary Design (Schematic) Phase If Engineer is to provide professional services with
respect to the Project during the Preliminary Design Phase, Engineer shall:
(a) Consult with Owner and determine the general design concept and Project
requirements based upon information furnished by Owner as well as any study Report on the Project.
(b) Prepare and submit to Owner preliminary design documents consisting of final design
criteria, preliminary drawings, an outline of specifications, and written descriptions of all significant features of
Project.
(c) Prepare and submit to Owner a requirements checklist of any subsurface investigation,
additional data, permits, or other information and requirements which is anticipated will be necessary for the
design or construction of Project.
(d) Provide written disclosure to Owner of significant design assumptions and design risks
and advantages /disadvantages inherent in or presented by design alternatives, and make recommendations to
Owner based thereon.
(e) Prepare and submit to Owner a preliminary cost estimate for the Project including
construction cost, contingencies, professional compensation, consultant fees, costs of land and rights of way,
compensation for damages and finance costs, if any.
(f) Engineer shall furnish 10 copies of each above referenced submittal document to
Owner for Owner's use, and shall review same in person with Owner.
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES - MAY 2009
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2.3 Final Design Phase If Engineer is to provide professional services with respect to the Project
during the Final Design Phase, Engineer shall:
(a) After consultation with the Owner, receipt of Owner's selection of any design options
and review of the Preliminary Design Documents, if any, prepare and submit to Owner final Drawings showing
the scope, extent and character of the work to be performed by contractors, and Specifications describing such
work and the requirement therefor. Such plans and Specifications shall comply with all applicable building
codes and requirements of regulatory agencies having any approval authority. Final design, including Drawings
and Specifications, shall also comply with ADA Accessability Guidelines ( ADAAG) Manual developed by the
U. S. Architectural and Transportation Barriers Board (1998) or ADA Standards for Accessible Design
published at 28 C.F.R. Part 36, Appendix A, whichever is applicable. Architect shall include an attest
statement on each record drawing sheet of final plan drawings that certifies compliance with either the
ADAAG Manual or 28 CFR ' 36 Standards.
(b) Make reasonable revisions to the Drawings and Specifications requested by Owner,
informing the Owner of any change in probable construction costs as a result of such revisions.
(c) Provide technical criteria, written descriptions and design data for Owner's use, and
disclose any significant risks and advantages /disadvantages inherent in or presented by design choices.
(d) Based upon Engineer's best professional judgment, prepare and submit to Owner a
current detailed cost estimate for the Project including construction cost, contingencies, professional
compensation, consultant fees, land and right of way costs, damages and finance costs, if any.
(e) Engineer shall furnish 10 copies of each above referenced submittal document to
Owner for Owner's use, and shall review same in person with Owner.
2.4 Construction Documents & Bidding Phase if Engineer is to provide professional services
with respect to the Project during the Construction Documents & Bidding Phase, Engineer shall:
(a) Prepare and submit to Owner draft forms of contract agreement, general and special
conditions, bid forms invitations to bid, information for bidders, forms of warranty and including any special
requirements imposed upon such contracts by any federal or other funding source and by any regulatory agency.
In preparing such draft forms, Engineer shall consider and incorporate, to the extent both advisable and
feasible, owner's standard forms of agreement, warranty, payment and performance bonds, general conditions
and selected specifications.
(b) After review and comment by Owner, prepare and submit all deliverables identified in
Appendix A to this Agreement, final forms of contract agreement, general and special conditions, Drawings,
specifications, bid forms, invitations to bid, information for bidders, and forms of warranty, together with any
Addenda which may be required or appropriate to correct errors, clarify Drawings or Specifications or advise of
changes. 25 copies of these final bid documents shall be furnished to Owner. Unless otherwise specified in
Appendix A, a copy of all contract documents and drawings shall also be submitted to Owner in Microsoft
Word and AutoCADD (2006 or later version) format on electronic media.
(c) Make recommendations to Owner concerning the need for prequalification of
equipment, vendors or bidders, and, if requested by Owner, incorporate prequalification requirements in final
bid and construction contract documents.
(d) Attend a pre -bid conference with bidders to discuss Project requirements and receive
requests for clarification, if any, to be answered by Engineer in writing to all plan holders.
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES - MAY 2009
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(e) Consult with and make recommendations to Owner concerning: acceptability of
bidders, subcontractors, suppliers, materials, equipment, suitability of proposed "or equals ", amount of bids and
any other matter involved in consideration and review of bids and bidders upon which Owner may reasonably
request Engineer's advice.
2.5 Construction Phase If Engineer is to provide professional services with respect to the Project
during the Construction Phase, after award by the Owner of a general contract or contracts for construction of
the Project, Engineer shall:
(a) Perform all duties and functions to be performed by Engineer under the terms of the
construction contract.
(b) Visit the Project site, perform observations as to the progress and quality of the work
and advise the Owner as to same. The frequency and level of observation shall be commensurate with the
nature of the work and size of the Project, except that any specific provisions set forth in Appendix A - Scope of
Services concerning the level of observation shall determine Engineer's obligation concerning level of
observation.
(c) Make determinations as to whether the work is proceeding in accordance and
compliance with the construction contract documents.
(d) Promptly advise the Owner in writing of any omissions, substitutions, defects or
deficiencies noted in the work of any contractor, subcontractor, supplier or vendor on the Project.
(e) Reject any work on the Project that does not conform to the contract documents.
(f) On request of the Owner, the construction contractor or any subcontractor on the
Project, issue written interpretations as to the Drawings and Specifications and requirements ofthe construction
work.
(g) Review shop drawings, samples, product data and other submittals of the contractor for
conformance with the design concept of Project and compliance with the Drawings, Specifications and all other
contract documents, and indicate to Contractor and Owner with respect thereto, any exceptions noted, or
modification or resubmittals required.
(h) Review all applications of Contractor for payment and in connection with same, issue
certificates for payment to the Owner for such amounts as are properly payable under the terms of the
construction contract. Each such certificate shall constitute Engineer's representation to Owner that he has
inspected the Project and that to the best of his knowledge, the work for which payment has been sought has
been completed by Contractor in accordance with the Drawings, Specifications and other contract documents.
(i) Subject to written concurrence by Owner, promptly render a written recommendation
to Owner concerning all proposed substitutions of material and equipment.
Q) Draft, for Owner's consideration, and offer recommendations upon, all proposed
change orders and contract modifications.
(k) On application for final payment by the Contractor, make a final inspection of the
Project, assembling and delivering to the Owner any written guaranties, instructions manuals, as-built drawings,
diagrams and charts required by the contract documents, and issuing a certificate of final completion of the
Project.
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES -MAY 2009
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(1) The Engineer shall, if so provided in the construction contract, be the interpreter of the
construction documents and arbiter of claims and disputes thereunder. Upon written request of the Owner or
Contractor, the Engineer shall promptly make written interpretations of the contract documents and render
written decisions on all claims, disputes and other matters relating to the execution or progress of the work on
the Project. The interpretations and decisions of the Engineer shall be final and binding on the Contractor and
Owner, unless the Director of Public Works ofthe Owner shall, within seven calendar days after receipt of the
Engineer's interpretation or decision, file his written objections thereto with the Architect and Contractor.
2.6 Additional Responsibilities This paragraph applies to all phases of Engineer's work.
(a) Engineer shall be responsible for the professional quality, technical accuracy, timely
completion and coordination of all of Engineer's work, including that performed by Engineer's consultants, and
including designs, Drawings, Specifications, reports and other services, irrespective of Owner's approval or
acquiescence in same. Engineer shall, without additional compensation, correct or revise any errors, omissions
or other deficiencies in his work.
(b) Engineer shall be responsible, in accordance with applicable law, to Owner for all loss
or damage to Owner to the extent caused by Engineer's negligent act or omission; except that Engineer hereby
irrevocably waives and excuses Owner and its attorneys from compliance with any requirement to obtain a
certificate of review as a condition precedent to commencement of an action, including any such requirements
set forth in Section 13 -20 -602, C.R.S. or similar statute.
(c) Engineer's professional responsibility shall comply with the standard of care applicable
to the type of engineering and architectural services provided, commensurate with the size, scope and nature of
the Project.
(d) Engineer shall be completely responsible for the safety of Engineer's employees in the
execution of work under this Agreement, shall provide all necessary safety equipment for said employees, and
shall hold harmless and indemnify and defend Owner from any and all claims, suits, loss or injury to Engineer's
employees.
(e) Engineer acknowledges that, due to the nature of engineering and related professional
services and the impact of same on the Project, the Owner has a substantial interest in the personnel and
consultants to whom Engineer assigns principal responsibility for services performed under this Agreement.
Consequently, Engineer represents that Engineer has selected and intends to employ or assign the key personnel
and consultants identified in Appendix C - "Identification of Personnel, Subcontractors and Task
Responsibility", attached hereto for the Project assignments and areas of responsibility stated therein. Within
10 days of execution of this Agreement, Owner shall have the right to object in writing to employment on the
Project of any such key person, consultant or assignment of principal responsibility, in which case Engineer will
employ alternate personnel for such function or reassign such responsibility to another to whom Owner has no
reasonable objection. Thereafter, Engineer shall not assign or reassign Project work to any person to whom
Owner has reasonable objection.
Within 5 days of execution of this Agreement, Engineer shall designate in writing a Project
representative who shall have complete authority to bind Engineer, and to whom Owner should address
communications.
(f) Promptly after execution of this Agreement and upon receipt of authorization from
Owner to proceed, Engineer shall submit to Owner for approval a schedule showing the order in which
Engineer proposes to accomplish his work, with dates on which he will commence and complete each major
work item. The schedule shall provide for performance of the work in a timely manner so as to not delay
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES - MAY 2009
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Owners time table for achievement of interim tasks and final completion of Project work, provided however,
the Engineer will not be responsible for delays beyond his control.
(g) Before undertaking any work which Engineer considers beyond or in addition to the
scope of work and services which Engineer has contractually agreed to perform under the terms of this
Agreement, Engineer shall advise Owner in writing (i) that Engineer considers the work beyond the scope of
this Agreement, (ii) the reasons the Engineer believes the out of scope or additional work should be performed,
and (iii) a reasonable estimate of the cost of such work. Engineer shall not proceed with such out of scope or
additional work until authorized in writing by Owner. The compensation for such authorized work shall be
negotiated, but in the event the parties fail to negotiate or are unable to agree as to compensation, then Engineer
shall be compensated for his direct costs and professional time at the rates set forth in Appendix B - "Fee
Schedule ".
2.7 Requirements Where Federal Assistance Provided.
[THIS SECTION RESERVED - NOT APPLICABLE TO THIS CONTRACT]
or
[ (a) Engineer understands that Owner will be funding the Project in part or in whole by a grant from
the U.S. Department of Housing and Urban Development. Engineer agrees it is subject to and shall comply
with all applicable provisions and regulations of said federal agency as referenced in Exhibit B. All applicable
HUD provisions and regulations are incorporated into this Agreement by reference.]
SECTION 3. OWNER'S RESPONSIBILITIES
3.1 Owner shall:
(a) Designate a representative to whom all communications from Engineer shall be directed and
who shall have limited administrative authority on behalf of Owner to receive and transmit information and
make decisions with respect to Project. Said representative shall not, however, have authority to bind Owner as
to matters of legislative or fiscal policy.
(b) Advise Engineer of Owner's Project requirements including: objective, project criteria,
use and performance requirements, special considerations, physical limitations, financial constraints, and
required construction contract provisions and standards.
(c) Provide Engineer with available information pertinent to the Project including any
previous reports, studies or data possessed by Owner which relates to design or construction of the Project.
(d) Assist in arranging for Engineer to have access to enter private and public property as
required for Engineer to perform his services.
(e) Examine all studies, reports, sketches, Drawings, Specifications, proposals and other
documents presented by Engineer, and render written decisions pertaining thereto within a reasonable time.
The Owner's approval of Drawings, design, Specifications, reports and incidental engineering work or materials
furnished hereunder shall not in any way relieve the Engineer of responsibility for the professional adequacy of
his work. The Owner's review, approval or acceptance of, or payment for, any of the services shall not be
construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the
performance of this Agreement.
(f) Upon advice of the necessity to do so from Engineer, obtain required approvals and
permits for the Project. The Engineer shall provide all supportive documents and exhibits necessary for
obtaining said approvals and permits.
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES -MAY 2009
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(g) Notify Engineer whenever Owner becomes aware of any substantial development or
occurrence which materially affects the scope or timing of Engineer's services.
(h) Owner shall perform its obligations and render decisions within a reasonable time
under the presented circumstances. However, given the nature of Owner's internal organization and
requirements, a period of 14 days shall be presumed reasonable for any decision not involving policy decision
or significant financial impact. A period of 45 days shall be presumed reasonable for Owner to act with respect
to any matter involving policy or significant financial impact.
SECTION 4. TIME FOR PERFORMANCE
Engineer's obligation to render services shall continue for such period of time as may reasonably be
required for completion of the work contemplated in Appendix A - Scope of Services and Section I of this
Agreement.
SECTION 5. PAYMENT
5.1 Owner will pay to Engineer as full compensation for all services required to be performed by
Engineer under this Agreement, except for services for additional work or work beyond the scope of this
Agreement, those maximum amounts set forth in Appendix B - "Fee Schedule" and computed in accordance
with this Section.
5.2 Engineer shall submit periodic, but not more frequently than monthly, applications for
payment, aggregating to not more than the maximum amount, for actual professional services rendered and
reimbursable expenses incurred. Such applications shall be submitted with appropriate documentation that such
services have been performed and expenses incurred. Thereafter, Owner shall pay Engineer for the amount of
the application within 40 days of the date of billing, provided that sufficient documentation has been furnished,
and further provided that Owner will not be required to pay more than 90% of the maximum amount unless the
Engineer's services on the Project phases for which this Agreement is applicable have been completed to
Owner's reasonable satisfaction and all required Engineer submittals have been provided.
5.3 The rates of compensation for service and for reimbursable expenses to be used with periodic
and final payment applications shall be those set forth in Appendix B - "Fee Schedule."
5.4 No separate or additional payment shall be made for profit, overhead, local telephone expenses,
lodging, routine photocopying, computer time, secretarial or clerical time or similar expenses unless otherwise
provided and listed in Appendix B - "Fee Schedule."
5.5 No compensation shall be paid to Engineer for services required and expenditures incurred in
correcting Engineer's mistakes or negligence.
5.6 Compensation for authorized work beyond the scope of this Agreement shall be governed by
Paragraph 2.6(g).
SECTION 6. TERMINATION
6.1 The Owner reserves the right to terminate this Agreement and Engineer's performance
hereunder, at any time upon written notice, either for cause or for convenience. Upon such termination,
Engineer shall cease all work and stop incurring expenses, and shall promptly deliver to the Owner all data,
Drawings, Specifications, reports, estimates, calculations, summaries and all other information, and materials as
Engineer may have accumulated in performing this Agreement, together with all finished work and work in
progress.
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6.2 Upon termination of this Agreement for events or reasons not the fault of Engineer, Engineer
shall be paid at the rates specified in Appendix B - "Fee Schedule" for all services rendered and reasonable
costs incurred to date of termination; together with any reasonable costs incurred within 10 days oftermination
provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Owner or
Engineer. In no event shall payment to Engineer upon termination exceed the maximum compensation
provided for complete performance in paragraph 5.1 and Appendix B.
6.3 In the event termination of this Agreement or Engineer's services is for breach of this
Agreement by Engineer, or for other fault of Engineer including but not limited to any failure to timely proceed
with work, or to pay its employees and consultants, or to perform services with that level of care and skill
ordinarily exercised by professional Engineers specializing in the design of railroad facilities, specifically
industry lead track, or to perform work in a manner deemed unsatisfactory by Owners Director of Public
Works, then in that event, Engineer's entire right to compensation shall be limited to the reasonable value of
completed work to the Owner as determined by Owners Director of Public Works for services satisfactorily
performed and reimbursable expenses reasonably incurred, prior to date of termination.
6.4 Engineer's professional responsibility for his completed work and services shall survive any
termination.
SECTION 7. GENERAL PROVISIONS.
7.1 (a) Ownership of Documents All designs, Drawings, Specifications, technical data, and
other documents or instruments procured or produced by the Engineer in the performance of this Agreement
shall be the sole property of the Owner and the Owner is vested with all rights therein of whatever kind and
however created, whether created by common law, statutory law, or by equity. The Engineer agrees that the
Owner shall have access at all reasonable times to inspect and make copies of all notes, designs, drawings,
specifications, and all other technical data pertaining to the work to be performed under this Agreement. In the
event Owner uses the designs, Drawings or Specifications provided hereunder for another project independent
from Project, without adaptation by Engineer, Owner shall hold harmless and indemnify Engineer from all loss,
claims, injury and judgments arising from the use of such designs, Drawings or Specifications for such other
project.
(b) Advertising Unless specifically approved in advance in writing by Owner, Engineer
shall not include representations of the Project in any advertizing or promotional materials, except for accurate
statements contained in resumes or curriculum vitae of Engineer's employees. If Engineer wishes to include
representations in advertising or promotional materials, it shall submit a draft of same and printer's proof of the
proposed advertising or promotional materials to the Owner for prior review and shall not publish or distribute
same unless written approval of the materials is first obtained.
7.2 Insurance and Indemnitv
(a) Engineer agrees that he has procured and will maintain during the term of this
Agreement, such insurance as will protect him from claims under workers' compensation acts, claims for
damages because of bodi ly injury including personal injury, sickness or disease or death of any of his employees
or of any person other than his employees, and from claims or damages because of injury to or destruction of
property including loss of use resulting therefrom; and such insurance will provide for coverage in such
amounts as set forth in subparagraph (b).
(b) The minimum insurance coverage which Engineer shall obtain and keep in force is as
follows:
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES - MAY 2009
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(i) Workers' Compensation Insurance complying with statutory requirements in
Colorado and in any other state or states where the work is performed.
(ii) Comprehensive General and Automobile Liability Insurance with limits not
less than Six Hundred Thousand and No /100 Dollars ($600,000.00) per person and occurrence for
personal injury, including but not limited to death and bodily injury, Six Hundred Thousand and
No /100 Dollars ($600,000.00) per occurrence for property damage, and One Million and No /100
Dollars ($1,000,000.00) for excess umbrella liability.
(iii) Professional Liability Insurance in amounts and form acceptable to Owner,
and with a deductible not exceeding $15,000.00.
(c) Engineer agrees to hold harmless, defend and indemnify Owner from and against any
liability to third parties, arising out of and to the extend caused by negligent acts, errors or omissions of
Engineer, his employees, subcontractors and consultants.
7.3 Notices Any and all notices or other communications required or permitted by this Agreement
or bylaw to be served on or given to either the Owner or the Engineer by the other party shall be in writing and
shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu
of such personal service when deposited in the United States mail, first -class postage prepaid, addressed to the
Owner, Attention: Earl Wilkinson, Department of Public Works, 211 E. "D" Street, Pueblo, Colorado, or to the
Engineer at Nolte Associates, Inc., 8000 South Chester Street, Suite 200, Centennial, CO 80112. Either party
may change his address for the purpose of this paragraph by giving written notice of such change to the other
party in the manner provided in this paragraph.
7.4 Entire Agreement This instrument contains the entire agreement between the Owner and the
Engineer respecting the Project, and any other written or oral agreement or representation respecting the Project
or the duties of either the Owner or the Engineer in relation thereto not expressly set forth in this instrument is
null and void. o In the event of any conflict between any provision of this Agreement and a provision of any
attachment to this Agreement, the provision in this Agreement shall control and supersede the conflicting
provision in the attachment. Any inconsistent resolution provision in any attachment to this Agreement shall be
void.
7.5 Successors and Assigns This Agreement shall be binding on the parties hereto and on their
partners, heirs, executors, administrators, successors, and assigns; provided, however, that neither this
Agreement, nor any part thereof, nor any moneys due or to become due hereunder to the Engineer may be
assigned by him without the written consent of the Owner.
7.6 Amendments No amendment to this Agreement shall be made nor be enforceable unless made
by written Amendment signed by an authorized representative of Engineer and by Owner's Director of Public
Works.
7.7 Choice of Law This Agreement shall be governed and interpreted in accordance with the laws
of the State of Colorado.
7.8 Equal Employment Opportunity In connection with the performance of this Agreement,
Engineer shall not discriminate against any employee or applicant for employment because of race, color,
religion, sex, national origin, disability or age. Engineer shall endeavor to insure that applicants are employed,
and that employees are treated during employment without regard to their race, color, religion, sex, national
origin, disability or age.
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES- MAY 2009
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7.9 Severability If any provision of this Agreement, except for Section 2.6, is determined to be
directly contrary to and prohibited by law or the requirements of any federal grant or other Project funding
source, then such provision shall be deemed void and the remainder of the Agreement enforced. However, it is
the intent of the parties that Section 2.6 of this Agreement not be severable, and that if any provision of said
section be determined to be contrary to law or the terms of any federal grant, then this entire Agreement shall be
void.
7.10 Appropriations Subject to execution of this Agreement by the Director of Finance certifying
that a balance of appropriation exists and funds are available, the amount of money appropriated for this
Agreement is equal to or in excess of the maximum compensation payable hereunder; provided, however, that if
construction is phased and subject to annual appropriation, funds only in the amount of initial appropriation are
available and Engineer shall confirm availability of funds before proceeding with work exceeding initial and
subsequent annual appropriations.
7.11 Additional Requirements on Federally Funded Contracts If any of the work to be performed
by Engineer under this Agreement is funded in whole or in part with federal funds, then this Agreement shall be
construed to include all applicable terms required by the federal assistance agreement and integrated federal
regulations. By executing this Agreement, Engineer agrees to be bound by all such mandatory federal
requirements, irrespective of Engineer's actual knowledge or lack of knowledge of such requirements prior to
execution of this Agreement.
7.12 Access to Property Not Under Owner's Control Engineer acknowledges that the Project may
require access to property not under the control of Owner at the time of execution of this Agreement. Engineer
and Engineer's employees and consultants shall, at Engineer's expense, obtain all additional necessary
approvals and clearances required for access to such property. Owner shall assist Engineer in obtaining access
to such property at reasonable times but make no warranty or representation whatsoever regarding access to
such property. Engineer understands and agrees that entry to properties not under Owner's control may require
Engineer to comply with the terms of separate access agreements to be negotiated hereafter with owners of such
property.
SECTION 8. DISPUTES
8.1 Any dispute or disagreement between Engineer and Owner arising from or relating to this
Agreement or Engineer's services or rightto payment hereunder shall be determined and decided by the Owner's
Director of Public Works whose written decision shall be final and binding unlessjudicial review is sought in a
Colorado Court of competent jurisdiction pursuant to Rule 106, C.RCP.
8.2 Pending resolution of any dispute or disagreement, orjudicial review, Engineer shall proceed
diligently with performance of his work under this Agreement.
SECTION 9. APPENDICES
9.1 The following Appendices are attached to and made a part of this Agreement:
Appendix A - "Scope of Services" consisting of 2 pages.
Appendix B - "Fee Schedule" (see Appendix A "Scope of Services ".
Appendix C - "Identification of Personnel, Subcontractors and Task Responsibility."
SECTION 10. ACCESSIBILITY The Americans with Disabilities Act (ADA) provides that it is a violation of
the ADA to design and construct a facility for first occupancy later than January 26, 1993, that does not meet
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES -MAY 2009
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the accessibility and usability requirements of the ADA except where an entity can demonstrate that it is
structurally impractical to meet such requirements. The Engineer therefore, will use his or her best reasonable
professional efforts to implement applicable ADA requirements and other federal, state and local laws, rules
codes, ordinances and regulations as they apply to the Project.
SECTION 11 — STATE - IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM
PERFORMING WORK
(a) At or prior to the time for execution of this Agreement, Engineer shall submit to the Purchasing
Agent of the City its certification that it does not knowingly employ or contract with an illegal alien who will
perform work under this Agreement and that the Engineer will participate in either the "E- Verify Program"
created in Public Law 208, 104' Congress, as amended and expanded in Public Law 156, 108' Congress, as
amended, that is administered by the United States Department of Homeland Security or the "Department
Program" established pursuant to section 8- 17.5- 102(5)(c), C.R.S. that is administered by the Colorado
Department of Labor and Employment in order to confirm the employment eligibility of all employees who are
newly hired for employment to perform work under this Agreement.
(b) Engineer shall not:
(I) Knowingly employ or contract with an illegal alien to perform work under this
contract;
(11) Enter into a contract with a subconsultant that fails to certify to Engineer that the
subconsultant shall not knowingly employ or contract with an illegal alien to perform work under this
contract.
(c) The following state- imposed requirements apply to this contract:
(I) The Engineer shall have confirmed or attempted to confirm the employment eligibility
of all of its employees who are newly hired for employment to perform work under this Agreement
through participation in either the E- Verify Program or the Department Program.
(II) The Engineer is prohibited from using the E- Verify Program or Department Program
procedures to undertake pre - employment screening of job applicants while this Agreement is being
performed.
(111) If the Engineer obtains actual knowledge that a subconsultant performing work under
this Agreement knowingly employs or contracts with an illegal alien to perform work under this
Agreement, the Engineer shall be required to:
A. Notify the subconsultant and the Purchasing Agent of the City within three (3)
days that the Engineer has actual knowledge that the subconsultant is employing or contracting
with an illegal alien; and
B. Terminate the subcontract with the subconsultant if within three (3) days of
receiving the notice required pursuant to subparagraph (c)(III)A. above the subconsultant does
not stop employing or contracting with the illegal alien; except that the Engineer shall not
terminate the contract with the subconsultant if, during such three (3) days, the subconsultant
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES -MAY 2009
provides information to establish that the subconsultant has not knowingly employed or
contracted with an illegal alien.
(IV) The Engineer is required to comply with any reasonable request by the Colorado
Department of Labor and Employment (hereinafter referred to as "CDLE ") made in the course of an
investigation that CDLE is undertaking pursuant to its authority under §8- 17.5- 102(5), C.R.S.
(d) Violation of this Section by the Engineer shall constitute a breach of contract and grounds for
termination. In the event of such termination, the Engineer shall be liable for Owner's actual and consequential
damages.
(e) Nothing in this Section shall be construed as requiring the Engineer to violate any terms of
participation in the E- Verify Program.
(f) Violation of this Section 11 by the Engineer shall constitute a breach of contract and grounds
for termination. In the event of such termination, the Engineer shall be liable for Owner's actual and
consequential damages.
(g) As used in this Section 11, the term "subconsultant" shall mean any subconsultant or
subcontractor of Engineer rendering services with the scope of this Agreement.
SECTION 12. PERA LIABILITY
The Contractor shall reimburse the City for the full amount of any employer contribution required to be paid by
the City of Pueblo to the Public Employees' Retirement Association ( "PERA ") for salary or other compensation paid to a
PERA retiree performing contracted services for the City under this Agreement. The Contractor shall fill out the
questionnaire attached as Exhibit A and submit the completed form to City as part of the signed Agreement.
SECTION 13. Sole Source Government Contracts; Limitations Upon Campaign Contributions
(a) Section 15 of Article XXVIII of the Colorado Constitution is hereby incorporated into this
agreement by reference. Sections 15 and 17 of Article XXVIII of the Colorado Constitution provide as follows:
SECTION 15
Because of a presumption of impropriety between contributions to any campaign and sole source
government contracts, contract holders shall contractually agree, for the duration of the contract and for two
years thereafter, to cease making, causing to be made, or inducing by any means, a contribution, directly or
indirectly, on behalf of the contract holder or on behalf of his or her immediate family member and for the
benefit of any political party or for the benefit of any candidate for any elected office of the state or any of its
political subdivisions.
SECTION 17:
(1) Every sole source government contract by the state or any of its political subdivisions shall
incorporate article XXVIII, section 15, into the contract. Any person who intentionally accepts contributions on
behalf of a candidate committee, political committee, small donor committee, political party, or other entity, in
violation of section 15 has engaged in corrupt misconduct and shall pay restitution to the general treasury of the
contracting governmental entity to compensate the governmental entity for all costs and expenses associated
with the breach, including costs and losses involved in securing a new contract if that becomes necessary. If a
person responsible for the bookkeeping of any entity that has a sole source contract with a governmental entity,
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES - MAY 2009
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or if a person acting on behalf of the governmental entity, obtains knowledge of a contribution made or accepted
in violation of section 15, and that person intentionally fails to notify the secretary of state or appropriate
government officer about the violation in writing within ten business days of learning of such contribution, then
that person may be contractually liable in an amount up to the above restitution.
(2) Any person who makes or causes to be made any contribution intended to promote or influence
the result of an election on a ballot issue shall not be qualified to enter into a sole source government contract
relating to that particular ballot issue.
(3) The parties shall agree that if a contract holder intentionally violates section 15 of section 17(2),
as contractual damages that contract holder shall be ineligible to hold any sole source government contract, or
public employment with the state or any of its political subdivisions, for three years. The governor may
temporarily suspend any remedy under this section during a declared state of emergency.
(4) Knowing violation of section 15 or section 17(2) by an elected or appointed official is grounds for
removal from office and disqualification to hold any office of honor, trust or profit in the state, and shall
constitute misconduct or malfeasance.
(5) A registered voter of the state may enforce section 15 or section 17(2) by filing a complaint for
injunctive or declaratory relief or for civil damages and remedies, if appropriate, in the district court.
(b) This section applies only to sole source government contracts and does not apply to any
contract which used a public and competitive bidding process in which the City solicited at least three bids prior
to awarding the contract.
(c) Contractor certifies, warrants, and agrees that it has complied and will comply with Colorado
Constitution Article XXVIII, including but not necessarily limited to the following prohibitions and obligations:
1. If during the term of the contract, contractor holds sole source government contracts
with the State of Colorado and any of its political subdivisions cumulatively totaling more than $100,000 in a
calendar year, then for the duration of this contract and for two years after, contractor will not make, cause to be
made, or induce by any means a contribution, directly or indirectly, on behalf of contractor or contractor's
immediate family member(s) for the benefit of any political party or for the benefit of any candidate any elected
office of the State or any of its political subdivisions; and
2. Contractor represents that contractor has not previously made or caused to be made, and will
not in the future make or cause to be made, any contribution intended to promote or influence the result of a
ballot issue election related to the subject matter of this contract; and
3. Contractor will satisfy contractor's obligations to promptly report to the Colorado
Department of Personnel & Administration ( "CDPA ") information included in the CDPA's "Sole Source
Government Contract Summary" and "Contract Holder Information" forms regarding this contract and any
other sole source government contracts to which contractor is a party, and shall contemporaneously provide a
copy of such report(s) to City's Purchasing Agent; and
4. Contractor understands that any breach of this section or of Contractor's responsibilities
under Colorado Constitution Article XXVIII may result in either contractual or constitutionally mandated
penalties and remedies; and
5. A Contractor that intentionally violates Colorado Constitution Article XXVIII, Section 15 or
17(2), shall be ineligible to hold any sole source government contract, or public employment with the state or
any of its political subdivisions for three years; and
6. By execution of this contract, Contractor hereby confirms it is qualified and eligible under
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES - MAY 2009
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such provisions to enter into this contract.
(d) For purposes of this section, the term "contractor" shall include persons that control ten
percent or more shares or interest in contractor, as well as contractor's officers, directors, and trustees. The term
"immediate family member" shall include a spouse, child, spouse's child, son -in -law, daughter -in -law, parent,
sibling, grandparent, grandchild, stepbrother, stepsister, stepparent, parent -in -law, brother -in -law, sister -in -law,
aunt, niece, nephew, guardian, or domestic partner. All other terms and phrases used in this section shall have
the meanings defined in Article XXVIII of the Colorado Constitution.
(e) In the event any provision of Article XXVIII of the Colorado Constitution is held to be
unconstitutional or otherwise invalid by a court of competent jurisdiction in a non - appealable action, has been
repealed retroactively or otherwise found to not apply to this contract or agreement, then the corresponding
requirement or requirements of this section shall have no further force and effect, and shall not constitute a
requirement of this contract, as of the date of such holding, declaration, repeal or determination.
(f) As used in this section, contractor shall mean the.entity entering into this agreement with the
City, if this agreement constitutes a sole- source.
(Signature page follows)
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES -:NAY 2009
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IN WITNESS WHEREOF the parties hereto have made and executed this Agreement as of the day and
year first above written.
CITY OF PUEBCO , ENGINEER
l
°President of the.CityCouncil ��
_ "Y= Title: �� ✓ %C. _ AGJ.i�i
Attest:
City C k'
[SEAL] 1
BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE.
Director of Finance
APPROVED AS TO FORM:
2�
City Attorne
AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES - MAY 2009
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