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HomeMy WebLinkAbout12171RESOLUTION NO. 12171 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND MATRIX DESIGN GROUP, INC., FOR PROFESSIONAL ENGINEERING SERVICES ASSOCIATED WITH THE PRELIMINARY DESIGN OF THE THTH EAST 8 STREET BRIDGE (PUE 8 – 0.2 – UTIC) REPLACEMENT PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement between the City of Pueblo, a Municipal Corporation and Matrix Design Group, 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. th CP1105 – 8 St Bridge Repair. 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. INTRODUCED June 13, 2011 BY: Judy Weaver COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: June 13, 2011AGENDA ITEM # M-6 DEPARTMENT: PUBLIC WORKS DIRECTOR – EARL WILKINSON, P.E. TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND MATRIX DESIGN GROUP, INC., FOR PROFESSIONAL ENGINEERING SERVICES ASSOCIATED WITH THE THTH PRELIMINARY DESIGN OF THE EAST 8 STREET BRIDGE (PUE 8 – 0.2 – UTIC) REPLACEMENT PROJECT ISSUE Should the City Council enter into an agreement with Matrix Design Group, Inc., for the th purpose of performing engineering services for the preliminary design of the East 8 Street Bridge Replacement project? RECOMMENDATION Approval of this Resolution. BACKGROUND th The East 8 Street Bridge was constructed in 1955. In addition to the bridge deterioration, the City has received numerous complaints about the absence of suitable sidewalks across the bridge and the adjacent approach roadways. This contract will provide preliminary design services in anticipation of a future bridge replacement project that will also provide for stormwater conveyance and roadway improvements from the bridge west to Utica Avenue. FINANCIAL IMPACT The maximum contract price for this work is $115,900 and will be paid from Project th Account No. CP1105 – 8 Street Bridge Repair. STANDARD FORM OF AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES THIS AGREEMENT made and entered this 13tliay of June , 20 11 by and between the City of Pueblo, a Municipal Corporation (hereinafter "Owner ") and Matrix Design Group, Inc., a professional engineering firm (hereinafter "Engineer ") for Engineer to render certain professional engineering and related services for Owner in connection with East 8th Street Bridge (PUE 8 — 0.2 — UTIC) Replacement, Preliminary Engineering Services hereinafter referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows. SECTION 1. GENERAL. l 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 [ X ] - Preliminary Design (Schematic) Phase [ ] - Final Design Phase [ ] - Construction Documents & Bidding Phase [ ] - 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 Appendix A — Scope of Services and the items identified in Section 2 of this Agreement which are applicable to each phase for which Engineer is to render professional services. 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 architect services provided under this Agreement shall be performed under the direction and supervision of an architect licensed to practice architecture in the state of Colorado (Agreement For Professional Engineering Services — CA Apprd 8/25/09) - 1 - 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. (e) Provide general economic analysis of Owner's requirements applicable to various alternatives. (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 ten (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 fifteen (15) 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 — CA Apprd 8/25/09) - 2 - 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 Accessibility 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. Engineer 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 , 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. Twenty -five (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 — CA Apprd 8/25/09) -3- 4. (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 of the 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. (J) 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 — CA Apprd 8/25/09) -4- (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 of the 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 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 mayor 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 — CA Apprd 8 /25/09) -5- Owner's time table for achievement of interne 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. [Select one [THIS SECTION RESERVED - NOT APPLICABLE TO THIS CONTRACT] or • - - • - - - from (the "Federal Agency "). Engineer agrees it is subject to and to the work under this Agreement, whether referenced in Appe• : • : • • .. • . - .. conditions and regulations of the Federal Agency and regulations arc incorporated into this Agreement by reference.) or {insert specific language required by the federal agency or state entity as required} 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 (Agreement For Professional Engineering Services — CA Apprd 8 /25/09) -6- 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 supportive documents and exhibits necessary for obtaining said approvals and permits. (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 1 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, an amount not to exceed $ 115,900.00 in the aggregate, and not to exceed those maximum amounts set forth in Appendix B - "Fee Schedule" and computed in accordance with this Section. In the event compensation for services is set forth in Exhibit B as to each phase of work indicated in Section 1 1 of this Agreement, the maximum amount of compensation for any phase shall not exceed the amount specified in Appendix B for such phase 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 bilking, 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 tine, 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) (Agreement For Professional Engineering Services — CA Apprd 8 /25/09) - 7 - 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 mcurrmg 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. 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 of terimnation 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 bridges, roadways and drainage facilities or to perform work in a manner deemed unsatisfactory by Owner's 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 Owner's 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. The Preliminary design, 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 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 reasonable times to inspect and make copies of 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 Indemnity (a) Engineer agrees that he has procured and will maintain during the term of this (Agreement For Professional Engineering Services — CA Apprd 8/25/09) -8- Agreement, such insurance as will protect him from claims under workers' compensation acts, claims for damages because of bodily 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. (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 Invited 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 (c) Engineer agrees to hold harmless, and indemnify Owner from and against any liability to third parties, arising out of negligent acts, errors or omissions of Engineer, his employees, subcontractors and consultants. 7.3 Notices. Notices or other communications required or permitted by this Agreement or by law 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 81003, or to the Engineer at Matrix Design Group, Inc., 503 N. Main Street, Suite 127, Pueblo, CO 81003, ATTN. Ray Perez. 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. In the event of any conflict between any provision of this Agreement and a provision of any Appendix or attachment to this Agreement, the provision in this Agreement shall control and supersede the conflicting provision in the Appendix or 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 (Agreement For Professional Engineering Services — CA Apprd 8 /25/09) -9- 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. 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 maxunum 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 perforned 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 Engineers 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 terns 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 right to payment hereunder shall be determined and decided by the Owner's Director of Public Works whose written decision shall be final and binding unless judicial review is sought in a Colorado Court of competent jurisdiction pursuant to Rule 106 C.R.C.P 8.2 Pending resolution of any dispute or disagreement, or judicial 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 8 pages. (Agreement For Professional Engineering Services — CA Apprd 8/25/09) - 10 - Appendix B - "Fee Schedule" consisting of 7 pages. 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 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; (II) 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. (III) 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) (Agreement For Professional Engineering Services — CA Apprd 8/25/09) - 11 - 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 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 §$ -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. Reserved (Signature page follows) (Agreement For Professional Engineering Services — CA Apprd 8/25/09) - 12- 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 ENGINEER Naive I 04 60Pow/ /A/C. By By .„� President o the C Council Title• 4 A y Arierz Pk, S ois Soc, } rte" Attest: City C rk [SEAL] BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. .iti A tith Director of Finance APPROVED AS TO FORM City Attorne (Agreement For Professional Engineering Services — CA Apprd 8/25/09) - 13 -