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HomeMy WebLinkAbout12130 RESOLUTION NO. 12130 A RESOLUTION APPROVING AN AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND STANLEY CONSULTANTS, INC. IN THE AMOUNT OF $73,140 RELATED TO THE DOWNTOWN PEDESTRIAN AND TRAFFIC MASTER PLAN, PROJECT NO 11-005 (PL0907/AREE07) AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement for Professional Engineering Services, a copy of which is attached hereto and made part thereof by reference, after having been approved as to form by the City Attorney, by and between the City of Pueblo, a Municipal Corporation, Stanley Consultants, Inc. relating to the Downtown Pedestrian and Traffic Master Plan, Project 11-005 (PL0907/AREE07), is hereby approved. SECTION 2. The President of City Council is hereby authorized to execute the Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest same. SECTION 3. Funds in the amount of $73,140 shall be expended from the Downtown Pedestrian and Traffic Master Plan, Project 11-005 (PL0907/AREE07). INTRODUCED: April 25, 2011 BY: Judy Weaver COUNCILPERSON Background Paper for Proposed R ESOLUTION # M-7 DATE: April 25, 2011 AGENDA ITEM DEPARTMENT: PUBLIC WORKS DIRECTOR - EARL WILKINSON, P.E. TITLE A RESOLUTION APPROVING AN AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND STANLEY CONSULTANTS, INC. IN THE AMOUNT OF $73,140 RELATED TO THE DOWNTOWN PEDESTRIAN AND TRAFFIC MASTER PLAN, PROJECT NO 11-005 (PL0907/AREE07) AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council accept an agreement with Stanley Consultants, Inc for professional services related to the Downtown Pedestrian and Traffic Master Plan, Project No. 11-005 (PL0907/AREE07)? RECOMMENDATION Approval of Resolution. BACKGROUND Stanley Consultants, Inc. was chosen from a list of prequalified engineering professionals submitting proposals for the Downtown Pedestrian and Traffic Master Plan project. Engineering services and budget are outlined in attached Exhibit A. This resolution approves the budget for only the phases of the project; Project Start up, Traffic Analysis and Concept Alternatives. A follow-up resolution will award the Draft Master Plan and Final Master Plan. The Downtown Pedestrian and Traffic Master Plan project has been created in anticipation of th CDOT funding in 2013 to rebuilding several signalized intersections on the 4 Street corridor in the Downtown. Before engineering on these intersections begin it necessary for the community to analyze potential changes to the downtown roadway network. The project will consider directional changes in traffic flow, conversion of one-way street back to two-way or visa versa, reduction or addition of travel lanes, on-street parking, addition of bike lanes, walkability issues and place making. FINANCIAL IMPACT Funds in the amount of $73,140 shall be expended from the Downtown Pedestrian and Traffic Master Plan Project No. 11-005 (PL0907/AREE07). AGREEMENT FOR PROFESSIONAL, SERVICES THIS AGREEMENT is made and entered this 25 th day of April 2C 11 by and between Pueblo, a Municipal Corporation ( "Client ") and Stanley Consultants, Inc. (hereinafter referred to as "Consultant ") for Consultant to render professional planning and engineering services for Client with respect to Project No. 11 - 005 (PL0907 / AREE07) Downtown Pedestrian & Traffic Master Plan and related ancillary services, hereinafter referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows. SECTION 1. GENERAL AND SCOPE OF SERVICES (a) Consultant shall satisfactorily perform the professional planning and consulting services for the Project described in more detail in Schedule 1 attached hereto and incorporated herein by reference (the "Scope of Services "). Such services shall include all usual and customary professional planning and engineering services including any required drafting or design services incident to its work on the Project. In the event this Agreement follows the selection of Consultant by Client pursuant to a Request for Proposals or RFP all of the requirements of that Request for Proposal or RFP are incorporated herein by reference, unless any requirement is expressly excluded in Schedule 1 This Agreement is specific to and provides funding only for Project Start-up /Analysis, Traffic Analysis and Concept Alternatives. (b) To the extent Consultant performs any of the Project work through subcontractors or subconsultants, Consultant shall be and remain as fully responsible for the full performance and quality of services performed by such subcontractors or subconsultants as it is for services performed directly by Consultant or Consultant's employees. (c) To the extent Consultant requires access to private property to perform its services hereunder, Consultant shall be required to make arrangements to obtain such access. However in the event Client has already secured access for Consultant to any such property through a right of entry agreement, access agreement, letter of consent or other instrument, Consultant shall fully comply with and be subject to the terms and conditions set forth therein. A copy of any such instrument will be provided to Consultant upon request. SECTION 2. CONSULTANT'S RESPONSIBILITIES. (a) Consultant shall be responsible for the professional quality, technical accuracy and timely completion of Consultant's work, including that performed by Consultant's subconsultants and subcontractors, and including drawings, reports and other services, irrespective of Client's approval of or acquiescence in same. (b) Consultant shall be responsible, in accordance with applicable law, to Client for all loss or damage to Client caused by Consultant's negligent act or omission, except that Consultant hereby irrevocably waives and excuses Client and Client's 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, whether now existing or hereafter enacted. (c) Consultant shall be completely responsible for the safety of Consultant's employees in the execution of work under this Agreement and shall provide all necessary safety and protective equipment for said employees. (d) Consultant acknowledges that time is of the essence with respect to the completion of its services under this Agreement. Consultant represents that Schedule 3 attached hereto is the schedule by which Consultant proposes to accomplish its work, with time periods for which it will commence and complete each major work item. Except to the extent the parties agree to time extensions for delays beyond the control of Consultant, Consultant shall adhere to this schedule and perform its work in a timely manner so as not to delay Client's timetable for achievement of interim tasks and final completion of Project work. Consultant further acknowledges that its schedule has accounted for all reasonably anticipated delays, including those inherent in the availability of tools, supplies, labor and utilities required for the work, the availability of information which must be obtained from any third parties, and all conditions to access to public and private facilities. 1 (e) Before undertaking any work or incurring any expense which Consultant considers beyond or in addition to the Scope of Work described in Schedule 1 or otherwise contemplated by the terms of this Agreement, Consultant shall advise Client in writing that (i) Consultant considers the work beyond the scope of this Agreement, (ii) the reasons that Consultant believes the out of scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such work. Consultant shall not proceed with any out of scope or additional work until authorized in writing by Client. 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 Consultant shall be compensated for its direct costs and professional time at the rates set forth in Schedule 2 attached hereto SECTION 3. FEES FOR SERVICES, PAYMENT (a) Client will pay to Consultant as full compensation for all services required to be performed by Consultant under this Agreement, except for services for additional work or work beyond the scope of this Agreement, the maximum sum of U.S. $73 140 00 computed as set forth in Schedule 2 (b) Consultant shall submit periodic, but not more frequently than monthly applications for payment, aggregating to not more than the maximum amount set forth above, for actual professional services rendered and for reimbursable expenses incurred. Applications for payment shall be submitted based upon the hourly rates and expense reimbursement provisions set forth in Schedule 2 attached hereto, and shall contain appropriate documentation that such services have been performed and such expenses incurred. Thereafter Client shall pay Consultant for the amount of the application within 45 days of the date such application is received. (c) 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 Schedule 2 (d) No compensation shall be paid to Consultant for services required and expenditures incurred in correcting Consultant's mistakes or negligence. (e) Compensation for authorized work beyond the scope of this Agreement shall be governed by the provisions of Section 2(e). (f) In the event services under this Agreement are phased and to be performed in more than one fiscal year or are subject to annual appropriation, Consultant acknowledges that funds only in the amount of initial appropriation are available and it shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. SECTION 4. CLIENT'S RESPONSIBILITIES (a) Client agrees to advise Consultant regarding Client's Project requirements and to provide all relevant information, surveys, data and previous reports accessible to Client which Consultant may reasonably require. (b) Client shall designate a Project Representative to whom all communications from Consultant shall be directed and who shall have limited administrative authority on behalf of Client to receive and transmit information and make decisions with respect to the Project. Said representative shall not, however have authority to bind Client as to matters of governmental policy or fiscal policy nor to contract for additions or obligations exceeding a value which is the lesser of $5000 or 5% of the maximum contract price (c) Client shall examine all documents presented by Consultant, and render decisions pertaining thereto within a reasonable time The Client's approval of any drawings, specifications, reports, documents or other materials or product furnished hereunder shall not in any way relieve Consultant of responsibility for the professional adequacy of its work. 2 (d) Client shall perform its obligations and render decisions within a reasonable time under the circumstances presented. Based upon the nature of Client and its requirements, a period of 14 days shall be presumed reasonable for any decision not involving policy decision or significant financial impact, when all information reasonably necessary for Client to responsibly render a decision has been furnished. A period of 46 days shall be presumed reasonable for Client to act with respect to any matter involving policy or significant financial impact. The above periods of presumed reasonableness shall be extended where information reasonably required is not within the custody or control of Client but must be procured from others. SECTION 5. TERMINATION (a) Client reserves the right to terminate this Agreement and Consultant's performance hereunder, at any time upon written notice, either for cause or for convenience. Upon such termination, Consultant and its subcontractors shall cease all work and stop incurring expenses, and shall promptly deliver to Client all data, drawings, specifications, reports, plans, calculations, summaries and all other information, documents, work product and materials as Consultant may have accumulated in performing this Agreement, together with all finished work and work in progress. (b) Upon termination of this Agreement for events or reasons not the fault of Consultant, Consultant shall be paid at the rates specified in Schedule 2 for all services rendered and reasonable costs incurred to date of termination, together with any reasonable costs incurred within 10 days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Consultant or Client. In no event shall payment to Consultant upon termination exceed the maximum compensation provided for complete performance in Section 3(a) (c) In the event termination of this Agreement or Consultant's services is for breach of this Agreement by Consultant, or for other fault of Consultant including but not limited to any failure to timely proceed with work, or to pay its employees and consultants, or to perform work according to professional standards, or to perform work in a manner deemed satisfactory by Client's Project Representative, then in that event, Consultant's entire right to compensation shall be limited to payment at the rates specified in Schedule 2 for services satisfactorily performed and reimbursable expenses reasonably incurred, prior to date of termination. (d) Consultant's professional responsibility for its completed work and services shall survive any termination. SECTION 6. SITE ACCESS. In the event the Project will require access to property not under the control of Client, Consultant and Consultant's employees and consultants shall obtain all additional necessary approval and clearances required for access to such property Client shall assist Consultant in obtaining access to such property at reasonable times but makes no warranty or representation whatsoever regarding access to such property Notwithstanding the foregoing, Consultant understands and agrees that entry to some property by Consultant may be subject to compliance by Consultant with the terms and conditions of an access agreement in accordance with section 1(c) of this Agreement. SECTION 7. USE OF DOCUMENTS. (a) Plans, drawings, designs, specifications, reports and all other documents prepared or provided by Consultant hereunder shall become the sole property of Client, subject to applicable federal grant requirements, and Client shall be vested with all rights therein of whatever kind and however created, whether by common law, statute or equity Client shall have access at all reasonable times to inspect and make copies of all notes, designs, drawings, specifications, and all other technical data or other documents pertaining to the work to be performed under this Agreement. In no event shall Consultant publish work product developed pursuant to this Agreement except (i) with advance written consent of Client, which consent may be granted or withheld in Client's sole and absolute discretion and (ii) in full compliance with the requirements of this Agreement and applicable federal regulations. (b) Any use for extensions of the project or for any other project without written verification or adaptation by the Consultant for the specific purpose intended will be at the Client's sole risk and without liability or legal exposure to the Consultant. 3 SECTION 8. INSURANCE AND INDEMNITY (a) Consultant agrees that it shall procure and will maintain during the term of this Agreement, such insurance as will protect it from claims under workers' compensation acts, claims for damages because of personal injury including bodily injury sickness or disease or death of any of its employees or of any person other than its 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 Consultant shall obtain and keep in force is as follows. (i) Workers' Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. The Workers' Compensation Insurance policy shall contain an endorsement waiving subrogation against the Client. (ii) Commercial General Liability Insurance issued to and covering the liability of Consultant with respect to all work performed by Consultant and its subcontractors and subconsultants under this Agreement, to be written on a Commercial General Liability policy form CG 00 01 with coverage limits of 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 and Six Hundred Thousand and No /100 Dollars ($600,000 00) per occurrence for property damage. This CGL policy shall be endorsed naming the Client, its officers, agents and employees as additional insureds. This CGL policy shall also provide coverage for contractual liability assumed by Consultant under the provisions of this Agreement. (iii) Professional Liability Insurance with coverage of not less than $1 000000, and with a deductible of not more than $ (iv) Comprehensive Automobile Liability Insurance effective during the period of the Agreement, and for such additional time as work on the Project is being performed, written with limits of liability for injury to one person in any single occurrence of not less that $150 000 and for any injury to two or more persons in any single occurrence of not less than $600,000 This insurance shall include uninsured/underinsured motorist coverage and shall protect the Consultant from any and all claims arising from the use both on and off the Project site of motor vehicles, including any automobiles, trucks, tractors, backhoes and similar equipment whether owned, leased, hired or used by Consultant. (c) Consultant agrees to hold harmless, defend and indemnify Client from and against claims for bodily injury (including death) and /or property damage arising out of negligent acts or omissions of Consultant, its employees, subcontractors and consultants SECTION 9. SUBCONTRACTS (a) Client acknowledges that Consultant is the prime contractor and the only party with whom Client has a contractual relationship under this Agreement. To the extent Consultant performs any Project activities through subconsultants or subcontractors, Consultant shall contractually bind each of its subconsultants and subcontractors by subcontract agreement to all of the terms of this Agreement which are for the benefit of Client, and Client shall be a third party beneficiary of those subcontract provisions. (b) Consultant shall indemnify and defend Client from all claims and demands for payment for services provided by subcontractors of Consultant. (c) Consultant acknowledges that, due to the nature of the services to be provided under this Agreement, the Client has a substantial interest in the personnel and consultants to whom Consultant assigns principal responsibility for services performed under this Agreement. Consequently Consultant represents that it has selected and intends to employ or assign the key personnel and consultants identified in its proposal submitted to Client prior to execution of this Agreement to induce Client to enter this Agreement. Consultant shall not change such consultants or key personnel 4 except after giving notice of a proposed change to Client and receiving Client's consent thereto Consultant shall not assign or reassign Project work to any person to whom Client has reasonable objection. SECTION 10. REQUIRED FEDERAL PROVISIONS (a) Consultant understands that Client may be funding the Project in whole or part with funds provided by the American Recovery and Reinvestment Act of 2009 and the Department of Energy's Energy Efficiency and Conservation Block Grant. Consultant agrees it is subject to and shall comply with all applicable provisions of said Energy Efficiency and Conservation Block grant, the Act under which the contract award has been made, and applicable regulations as follows. NOTICE REGARDING THE PURCHASE OF AMERICAN -MADE EQUIPMENT AND PRODUCTS —SENSE OF CONGRESS It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American -made. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) Preamble The American Recovery and Reinvestment Act of 2009, Pub L. 111 -5, (Recovery Act) was enacted to preserve and create jobs and promote economic recovery, assist those most impacted by the recession, provide investments needed to increase economic efficiency by spurring technological advances in science and health, invest in transportation, environmental protection, and other infrastructure that will provide long -term economic benefits, stabilize State and local government budgets, in order to minimize and avoid reductions in essential services and counterproductive State and local tax increases. Recipients shall use grant funds in a manner that maximizes job creation and economic benefit. The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance, accountability, transparency, data collection and resources as specified in Act itself and as discussed below Recipients should begin planning activities for their first tier subrecipients, including obtaining a DUNS number (or updating the existing DUNS record), and registering with the Central Contractor Registration (CCR). Be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery Act and related guidance. For projects funded by sources other than the Recovery Act, Contractors must keep separate records for Recovery Act funds and to ensure those records comply with the requirements of the Act. The Government has not fully developed the implementing instructions of the Recovery Act, particularly concerning specific procedural requirements for the new reporting requirements. The Recipient will be provided these details as they become available. The Recipient must comply with all requirements of the Act. If the recipient believes there is any inconsistency between ARRA requirements and current award terms and conditions, the issues will be referred to the Contracting Officer for reconciliation. 5 Definitions For purposes of this clause, Covered Funds means funds expended or obligated from appropriations under the American Recovery and Reinvestment Act of 2009, Pub L. 111 -5 Covered Funds will have special accounting codes and will be identified as Recovery Act funds in the grant, cooperative agreement or TIA and /or modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015 Non - Federal employer means any employer with respect to covered funds — the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an employer; and any professional membership organization, certification of other professional body, any agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an employer receiving covered funds, or with respect to covered funds received by a State or local government, the State or local government receiving the funds and any contractor or subcontractor receiving the funds and any contractor or subcontractor of the State or local government; and does not mean any department, agency, or other entity of the federal government. Recipient means any entity that receives Recovery Act funds directly from the Federal government (including Recovery Act funds received through grant, loan, or contract) other than an individual and includes a State that receives Recovery Act Funds Special Provisions 1 Flow Down Requirement Recipients must include these special terms and conditions in any subaward. 2. Segregation of Costs Recipients must segregate the obligations and expenditures related to funding under the Recovery Act. Financial and accounting systems should be revised as necessary to segregate, track and maintain these funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be commingled with any other funds or used for a purpose other than that of making payments for costs allowable for Recovery Act projects. 3 Prohibition on Use of Funds None of the funds provided under this agreement derived from the American Recovery and Reinvestment Act of 2009, Pub L. 111-5, may be used by any State or local government, or any private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool. 4 Access to Records With respect to each financial assistance agreement awarded utilizing at least some of the funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, Pub L. 111 -5 any representative of an appropriate inspector general appointed under section 3 or 8G of the Inspector General Act of 1988 (5 U S C App ) or of the Comptroller General is authorized (1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any State or local agency administering such contract that pertain to, and involve transactions relation to, the subcontract, subcontract, grant, or subgrant; and, 6 (2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such transactions. 5 Publication An application may contain technical data and other data, including trade secrets and /or privileged or confidential information, which the applicant does not want, disclosed to the public or used by the Government for any purpose other than the application. To protect such data, the applicant should specifically identify each page including each line or paragraph thereof containing the data to be protected and mark the cover sheet of the application with the following Notice as well as referring to the Notice on each page to which the Notice applies 6 Notice of Restriction on Disclosure and Use of Data The data contained in pages - - -- of this application have been submitted in confidence and contain trade secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes, provided that if this applicant receives an award as a result of or in connection with the submission of this application, DOE shall have the right to use or disclose the data here to the extent provided in the award. This restriction does not limit the Government's right to use or disclose data obtained without restriction from any source, including the applicant. Information about this agreement will be published on the Internet and linked to the website www.recovery.gov, maintained by the Accountability and Transparency Board. The Board may exclude posting contractual or other information on the website on a case -by -case basis when necessary to protect national security or to protect information that is not subject to disclosure under sections 552 and 552a of title 5 United States Code. 7 Protecting State and Local Government and Contractor Whistleblowers The requirements of Section 1553 of the Act are summarized below They include, but are not limited to • Prohibition on Reprisals An employee of any non - Federal employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub L. 1 11 -5, may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee's duties, to the Accountability and Transparency Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or other person working for the employer who has the authority to investigate, discover or terminate misconduct, a court or grant jury, the head of a Federal agency, or their representatives information that the employee believes is evidence of • gross management of an agency contract or grant relating to covered funds, • a gross waste of covered funds. • a substantial and specific danger to public health or safety related to the implementation or use of covered funds, • an abuse of authority related to the implementation or use of covered funds, or • as violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. 7 • Agency Action Not later than 30 days after receiving an inspector general report of an alleged reprisal, the head of the agency shall determine whether there is sufficient basis to conclude that the non - Federal employer has subjected the employee to a prohibited reprisal The agency shall either issue an order denying relief in whole or in part or shall take one or more of the following actions. • Order the employer to take affirmative action to abate the reprisal • Order the employer to reinstate the person to the position that the person held before the reprisal, together with compensation including back pay, compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken • Order the employer to pay the employee an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the employee for or in connection with, bringing the complaint regarding the reprisal, as determined by the head of a court of competent jurisdiction. Nonenforceablity of Certain Provisions Waiving Rights and remedies or Requiring Arbitration Except as provided in a collective bargaining agreement, the rights and remedies provided to aggrieved employees by this section may not be waived by any agreement, policy, form, or condition of employment, including any predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising out of this section. Requirement to Post Notice of Rights and Remedies. Any employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub L. 111 -5, shall post notice of the rights and remedies as required therein. (Refer to section 1553 of the American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, www.Recovery.gov, for specific requirements of this section and prescribed language for the notices.). 8 Request for Reimbursement Reserved 9 False Claims Act Recipient and sub - recipients shall promptly refer to the DOE or other appropriate Inspector General any credible evidence that a principal, employee, agent, contractor, sub - grantee, subcontractor or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict or interest, bribery, gratuity or similar misconduct involving those funds. 10 Information in Supporting of Recovery Act Reporting Recipient may be required to submit backup documentation for expenditures of funds under the Recovery Act including such items as timecards and invoices. Recipient shall provide copies of backup documentation at the request of the Contracting Officer or designee. 11 Availability of Funds Funds appropriated under the Recovery Act and obligated to this award are available for reimbursement of costs until September 30, 2015 12. Additional Funding Distribution and Assurance of Appropriate Use of Funds 8 Applicable if award is to a State Government or an Agency Certification by Governor —Not later than April 3, 2009 for funds provided to any State or agency thereof by the American Reinvestment and Recovery Act of 2009, Pub L. 111 -5, the Governor of the State shall certify that: 1) the state will request and use funds provided by the Act; and 2) the funds will be used to create jobs and promote economic growth Acceptance by State Legislature —If funds provided to any State in any division of the Act are not accepted for use by the Governor then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State Distribution – After adoption of a State legislature's concurrent resolution, funding to the State will be for distribution to local governments, councils of government, public entities, and public - private entities within the State either by formula or at the State's discretion. 13 Certifications With respect to funds made available to State or local governments for infrastructure investments under the American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, the Governor, mayor, or other chief executive, as appropriate, certified by acceptance of this award that the infrastructure investment has received the full review and vetting required by law and that the chief executive accepts responsibility that the infrastructure investment is an appropriate use of taxpayer dollars. Recipient shall provide an additional certification that includes a description of the investment, the estimated total cost, and the amount of covered funds to be used for posting on the Internet. A State or local agency may not receive infrastructure investment funding from funds made available by the Act unless this certification is made and posted. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION The intellectual property provisions applicable to this award are provided as Attachment B to this RFQ A list of all intellectual property provisions may be found at http. / /www.gc.doe.gov /financial assistance_awards.htm. Questions regarding intellectual property matters should be referred to the DOE Award Administrator and the Patent Counsel designated as the service provider for the DOE office that issued the award The IP Service Providers List is found at http. / /www.ge.doe.gov /documents /Intellectual PropertyjlP) Service Providers for Acq uisitio.Ppdf (b) All records with respect to any matters covered by this Agreement shall be available for inspection by Client, and the Department of Energy at any time during normal business hours and as often as Client, and the Department of Energy deems necessary to audit, examine and make excerpts or transcripts of relevant information, and otherwise to perform its official functions or duties. SECTION 11. MISCELLANEOUS. (a) Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Consultant or Client 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 Client, Attention. City of Pueblo, ATTN Pepper Whittlef, 350 S. Grand Avenue, Pueblo, Colorado, 81003 or to Consultant at 9 Stanley Consultants, Inc., ATTN Mark Kopatz, 8000 S. Chester St. Ste 500, 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. (b) Entire Agreement. This instrument contains the entire agreement between Consultant and Client respecting the Project, and any other written or oral agreement or representation respecting the Project or the duties of either Client or Consultant in relation thereto not expressly set forth in this instrument and its attachments is null and void. In the case of any conflict between the terms of this Agreement for Professional Services and terms of Schedule 1 or any other attachment hereto, the terms of this Agreement shall govern. (c) Successors and Assigns. This Agreement shall be binding on the parties hereto and on their successors and assigns, provided, however neither this Agreement, nor any part thereof nor any moneys due or to become due hereunder to Consultant may be assigned by it without the written consent of Client, which consent may be withheld in Client's sole and absolute discretion Any assignment or attempted assignment in violation of this subsection shall be void. (d) Amendments. No amendment to this Agreement shall be made nor be enforceable unless made by written amendment signed by an authorized representative of Consultant and by Client in accordance with the requirements of Section 4(b) of this Agreement or upon authorization of Client's governing board. (e) Choice of Law This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado. Any unresolved dispute arising from or concerning any breach of this Agreement shall be decided in a state court of competent jurisdiction located in Pueblo, Colorado. (f) Equal Employment Opportunity In connection with the performance of this Agreement, neither Consultant nor its consultants shall discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, disability or age Consultant 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 (g) Severability If any provision of this Agreement, except for Section 2, 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 ofthe parties that Section 2 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. SECTION 12. STATE IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK (a) At or prior to the time for execution of this Agreement (which may be referred to in this section as this "Contract "), Consultant (which may be referred to in this section as "Contractor ") shall submit to the Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor 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 §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 Contract. (b) Contractor shall not: (1) Knowingly employ or contract with an illegal alien to perform work under this contract; (II) Enter into a contract with a subconsultant that fails to certify to Contractor that the subconsultant shall not knowingly employ or contract with an illegal alien to perform work under this Contract. 10 (c) The following state - imposed requirements apply to this contract: (I) The Contractor shall have confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in either the E- Verify Program or Department Program. (II) The Contractor is prohibited from using either the E Verify Program or Department Program procedures to undertake pre - employment screening of job applicants while this Contract is being performed. (111) If the Contractor obtains actual knowledge that a subcontractor or subconsultant performing work under this Contract knowingly employs or contracts with an illegal alien, the Contractor shall be required to A. Notify the subconsultant and the Client's Purchasing Agent within three (3) days that the Contractor has actual knowledge that the subcontractor /subconsultant is employing or contracting with an illegal alien, and B Terminate the subcontract with the subcontractor /subconsultant if within three (3) days of receiving the notice required pursuant to subparagraph (c)(III)A. above the subcontractor /subconsultant does not stop employing or contracting with the illegal alien, except that the Contractor shall not terminate the contract with the subcontractor /subconsultant if, during such three (3) days, the subcontractor /subconsultant provides information to establish that the subcontractor /subconsultant has not knowingly employed or contracted with an illegal alien. (IV) The Contractor 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 12 by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination, the Contractor shall be liable for Client's actual and consequential damages. (e) As used in this Section 12, the terms "subcontractor' and "subconsultant' shall mean any subconsultant or subcontractor of Consultant rendering services within the scope of this Agreement. SECTION 13. PERA LIABILITY Consultant 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 Consultant shall fill out the questionnaire attached as Exhibit A and submit the completed form to Client as part of the signed Agreement. (Signature Page Follows) 11 IN WITNESS WHEREOF the parties hereto have made and executed this Agreement as of the day and year first above written CITY OF PUEBLO A MUNICIPAL CORPORATION By / r R President oft e Ci Council ATTEST APPROVED AS TO FORM City Attorney City Clerk It T 1 T By Name MN/ ��/ �/ Title P led �Vl/K " `1 12 COLORADO PUBLIC EMPLOYEES RETIREMENT ASSOCIATION SUPPLEMENTAL QUESTIONNAIRE TO BE ANSWERED BY ANY BUSINESS PERFORMING SERVICES FOR THE CITY OF PUEBLO Pursuant to section 24 -51 1 101(2), C.R.S., salary or other compensation from the employment, engagement, retention or other use of a person receiving retirement benefits (Retiree) through the Colorado Public Employees Retirement Association (PERA) in an individual capacity or of any entity owned or operated by a PERA Retiree or an affiliated party by the City of Pueblo to perform any service as an employee, contract employee, consultant, independent contractor or through other arrangements, is subject to employer contributions to PERA by the City of Pueblo Therefore, as a condition of contracting for services with the City of Pueblo, this document must be completed, signed and returned to the City of Pueblo (a) Are you, or do you employ or engage in any caps , including an independent contractor, a PERA Retiree who will perform any services for the City of Pueblo? Yes No (Must sign below whether you answer yes or no ) (b) If you answered "yes" to (a) above, please answer the following question. Are you 1) an individual, 2) sole proprietor or partnership, or 3) a business or company owned or operated by a PERA Retiree or an affiliated party? Yes No If you answered "yes" please state which of the above listed entities (1, 2, or 3) best describes your business. (c) If you answered `yes" to both (a) and (b), please provide the name, address and social security number of each such PERA Retiree. Name Name Address Address Social Security Number Social Security Number (If more than two, please attach a supplemental list) If you answered "yes" to both (a) and (b), you agree to reimburse the City of Pueblo for any employer contribution required to be paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo Failure to accurately complete, sign and return this document to the City of Pueblo may result in your being denied the rivilege of doing business with the City of Pueblo. Signed J 1 ' 20 g II By Name MiWk Al Title %t- 1 For purposes of responding to question (b) above, an 'affiliated party includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren, (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse s parents, stepparents, stepchildren, stepsiblings, and spouse s siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree s regular salary or compensation. - 13 - Schedule 1 Scope of Work - 14- Schedule 2 Fees for Service - 15 -