HomeMy WebLinkAbout12224RESOLUTION NO. 12224
A RESOLUTION APPROVING AN AGREEMENT FOR
PROFESSIONAL ENGINEERING SERVICES WITH SHORT
ELLIOTT HENDRICKSON, INC. (SEH), FOR FINAL
ENGINEERING DESIGN SERVICES ASSOCIATED WITH THE
DILLON DRIVE/I-25 INTERCHANGE PROJECT – PROJECT NO.
07-054 (DT0802) IN THE AMOUNT OF $1,313,034 AND
RESCINDING RESOLUTION NO. 12199
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement for Professional Engineering Services between the City of
Pueblo and Short Elliot Hendrickson, Inc., for professional services associated with the
Dillon Drive / I-25 Overpass Interchange Study – Project No. 07-054 (DT0802) in the
amount of $1,313,034, having been approved as to form by the City Attorney, is hereby
approved.
SECTION 2.
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.
SECTION 3.
Resolution No. 12199 is hereby rescinded.
INTRODUCED September 12, 2011
BY: Vera Ortegon
COUNCILPERSON
Background Paper for Proposed
RESOLUTION
# M-5
DATE: SEPTEMBER 12, 2011AGENDA ITEM
DEPARTMENT:
PUBLIC WORKS
DIRECTOR – EARL WILKINSON, P.E.
TITLE
A RESOLUTION APPROVING AN AGREEMENT FOR PROFESSIONAL ENGINEERING
SERVICES WITH SHORT ELLIOTT HENDRICKSON, INC. (SEH), FOR FINAL
ENGINEERING DESIGN SERVICES ASSOCIATED WITH THE DILLON DRIVE/I-25
INTERCHANGE PROJECT – PROJECT NO. 07-054 (DT0802) IN THE AMOUNT OF
$1,313,034 AND RESCINDING RESOLUTION NO. 12199
ISSUE
Should the City Council approve an agreement for Professional Engineering Services with Short
Elliott Hendrickson, Inc. in the amount of $1,313,034 for the Dillon Drive/I-25 Interchange
Project?
RECOMMENDATION
Approval of this Resolution.
BACKGROUND
City Council authorized SEH (Ordinance No. 8004 and Ordinance No. 8025) to perform
preliminary design services, to obtain required NEPA clearances and CDOT/FHWA regulatory
approvals for the Project.
This Agreement will provide for Final Design, all required final approvals preparation of contract
documents (drawing and specifications) advertisement and bidding services.
Resolution 12199 is being rescinded since it was intended to approve an amendment to a prior
Professional Services agreement which had not been entered into nor executed.
FINANCIAL IMPACT
The City has received a grant from the Federal Highway Administration for $5.427 million to pay
for the study and design of a flyover and to construct that portion of the flyover with the
remaining funds. The grant required a 20% local match that totaled $1,090,183. The federal
grant and local match were previously accepted and appropriated by previous Council actions.
The fee for the final design phase of the project was negotiated with SEH as required by
Federal and State statutes and is currently $1,313,034. To date, $1,131,083 has been spent
on preliminary design.
STANDARD FORM OF AGREEMENT
FOR PROFESSIONAL ENGINEERING SERVICES
THIS AGREEMENT made and entered this 12th day of September, 2011 by and between the
City of Pueblo, a Municipal Corporation (hereinafter "Owner ") and Short Elliott Hendrickson, Inc., a
Minnesota Corporation„ a professional engineering firm (hereinafter "Engineer ") for Engineer to
render certain professional engineering and related services for Owner in connection with Final
Design Services for the Dillon / Interstate 25 Interchange Project, 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:
❑ - Study and Report Phase
❑ - 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, architectural and planning services. Unless
expressly excepted in Appendix A hereto, Engineer shall also provide any other architectural,
landscape architectural, geotechnical engineering and surveying services incidental to its work on the
Project. Engineer shall provide an attest statement on the project cover sheet for the plan set and all
other drawings where ADA requirements may be applicable that certifies the design complies with all
applicable provisions of the Americans with Disabilities Act
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
Professional 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 Professional 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 architectural services provided under this Agreement shall be performed under
the direction and supervision of an architect duly licensed and authorized.
SECTION 2. ENGINEER 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 twenty -five (25) 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.
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(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 ten (10) copies of each above referenced submittal
document to Owner for Owner's use, and shall review same in person with Owner.
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 Drawings and Specifications
shall comply with all applicable design and building codes and all 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 the project cover sheet for the plan set and all other drawings where ADA
requirements may be applicable that certifies that the design is compliant with either the ADAAG
Manual or 28 CFR Part 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 six (6) paper copies and ten (10) CD -ROM copies of
each above referenced submittal document to Owner for Owner's use, and shall review same in
person with Owner.
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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.
(c) Engineer shall furnish six (6) paper copies and twenty -five (25) CD -ROM
copies of each above referenced submittal document to Owner for Owner's use, and shall review
same in person with 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 (20 or
later version) format on electronic media.
(d) 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.
(e) 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.
(f) Consult with and make general 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
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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.
(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 Engineer and Contractor.
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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 major work item. The schedule shall provide for performance of the work in a timely
manner so as to not delay Owner's time table for achievement of interim tasks and final completion of
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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 and Cost Plus
Fixed Fee ".
2.7 Requirements Where Federal Assistance Provided. This Agreement is funded in part
with assistance from the Federal Highway Administration. With respect to Engineer's services and
performance under this Agreement, and with respect to any other work performed by Engineer on a
phase of the Project receiving Federal financial assistance, the following provisions shall apply to
Engineer and shall control over any other provision of this Agreement in conflict therewith:
(a) The requirements of 49 CFR Part 18 and 23 CFR, Part 172.
(b) Engineer agrees it is subject to and shall comply with all applicable regulations
of FHWA, the Act under which the contract award has been made, and applicable regulations.
Further, the Consultant agrees to fully comply with all applicable provisions of exhibits "J" of the
contract between the City and the Colorado Department of Transportation (CDOT) for the Project,
attached hereto;
(c) Design the project in accordance with the intent of the Grant Award. As used
herein "Grant Award" shall mean the Financial Assistance provided by the FHWA for the Project. A
copy of the Grant Award has been made available to Engineer upon request;
(d) Use forms for instructions to bidders, general conditions, contract, bids bond,
performance bond, and payment bond which meet FHWA and or CDOT requirements.
(e) Engineer shall coordinate the advertisement for bids, and bid procedures for the
Project with Owner's Director of Purchasing. In preparing Contract Documents for bidding, Engineer
shall consult with the Director of Public Works of Owner.
(f) Paragraph 2.4(a) of the Agreement shall continue to apply to Engineer's
services, provided, however, that with respect to the Project, Owner's standard forms of agreement,
warranty, payment and performance bonds, general conditions and selected specifications shall be
modified by special conditions, drafted by Engineer, to the extent necessary in order that the same do
not conflict with requirements applicable to the construction documents by virtue of the financial
assistance provided by FHWA.
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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.
(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.
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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 $1,313,034 in the aggregate, and not to exceed
those maximum amounts set forth in Appendix B - "Fee Schedule and Cost Plus Fixed Fee ". Any
additional work or work beyond the scope of this Agreement, shall be paid in accordance with
Appendix B — Fee Schedule and Cost Plus Fixed Fee and Section 5.6. In the event compensation for
services is set forth in Appendix 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 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 and
Cost Plus Fixed Fee."
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 and Cost Plus Fixed
Fee."
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 and Cost Plus Fixed Fee"
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 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
Interstate Highway Interchanges (including bridges), 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. 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 advertising or promotional materials,
except for accurate statements contained in resumes or curriculum vitae of Engineer's employees, or a
brief summary of the Project as a "representative project" in proposals or statements of qualifications.
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, 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
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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 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. Engineer shall furnish Owner with a true copy
of the policy meeting the requirements of this subsection within ten (10) days of the date of this
Agreement.
(iii) Professional Liability Insurance in amounts and form acceptable to
Owner, and with a deductible not exceeding $250,000. If the deductible in any policy exceeds
$25,000, Engineer shall provide a certification from its Corporate Chief Financial Officer or similar
officer of Engineer attesting to Engineer's ability to fund the amount of the deductible in excess of
$25,000.
(c) Engineer agrees to hold harmless, defend 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. Any and all 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, or to the Engineer at Phil Weisbach, Short Elliot
Hendrickson, Inc., 4840 Pearl East Circle, Suite 200W, Boulder, Colorado 80301. 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
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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.
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
loan 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 or loan, then this entire Agreement shall be void.
7.10 PERA. The Engineer 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 Engineer shall fill out the questionnaire attached as
Appendix "D" and submit the completed form to City as part of the signed Agreement.
7.11 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.
7.12 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.
7.13 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
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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. If after
reasonable effort and documented demonstration of good faith the Engineer is unable to obtain any
required approvals or clearances for access, then the Owner shall assume the duties and any additional
expenses to secure those approvals or clearances.
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 87 page(s).
Appendix B - "Fee Schedule and Cost Plus Fixed Fee" consisting of 2 page(s).
Appendix C - "Identification of Personnel, Subcontractors and Task
Responsibility." consisting of 1 page(s).
Appendix D — "PERA Supplemental Questionnaire"
Exhibit J - "Federal Requirements"
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
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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) 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 §8-
17.5- 102(5), C.R.S.
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(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.
IN WITNESS WHEREOF the parties hereto have made and executed this Agreement as of
the day and year first above written.
CITY OF PUEBLO ENGINEER
Short- Elliot Hendrickson, Inc.
By A .:. : � By ro/
Title: President of City Council Title: Pri INC( pet 1
Attest: �Q n
City erk
[SEAL]
BALANCE OF ; "i5 OPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE.
Director •9' Finance
APPROVED AS TO FORM:
7
City Attorney
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ExhibILD D
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- 1101(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 capacity, Including an independent contractor, a PERA Retiree
who will perform any services for the City of Pueblo? Yes V,, No (Must sign below whether you answer 'yes" or
ire.)
(b) If you answered "yes" to (a) above, please answer the following question: Are you an Individual, sole
proprietor or partnership, or a business or company owned or operated by a PERA Retiree or an affiliated party? Yes
No V. If you answered "yes" please state which of the above entities 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 pald 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 privilege of doing business with the City of Pueblo.
Signed S e fIktx. der 2 , 20 1 .
By:
Name: p f ' t ' I; () T. lug S 16 aek
Title: r ri M G I fe
For purposes of responding to question (b) above, an ° affiliated party" Includes (1) any person who Is the named
beneficiary or cobeneflciary 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, stepsibiings, 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.
PERA 2- 9-2009