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HomeMy WebLinkAbout12746RESOLUTION NO. 12746 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND DESIGN CONCEPTS CLA, INC. FOR PROFESSIONAL SERVICES ASSOCIATED WITH THE FOUNTAIN CREEK WATERSHED TRAILS AND RECREATION PROJECTS, ACCESS, AND ACTIVITY AREA BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. An Agreement, a copy of which is attached hereto, after having been approved as to form by the City Attorney, by and between Pueblo, a Municipal Corporation, and Design Concepts CLA is hereby approved. SECTION 2. Funds for said professional services shall be paid from a grant from Project No. PL1203. SECTION 3. The President of the City Council is hereby authorized to execute 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 4. The officers of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and the attached instruments to effectuate the transactions described therein. SECTION 5. This Resolution shall become effective immediately upon passage and approval. INTRODUCED: July 22, 2013 BY: Eva Montoya Background Paper for Proposed RESOLUTION DATE: JULY 22, 2013 AGENDA ITEM # Q-2 DEPARTMENT: PUBLIC WORKS DIRECTOR – EARL WILKINSON, P.E. TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND DESIGN CONCEPTS CLA, INC. FOR PROFESSIONAL SERVICES ASSOCIATED WITH THE FOUNTAIN CREEK WATERSHED TRAILS AND RECREATION PROJECTS, ACCESS, AND ACTIVITY AREA ISSUE Should City Council enter into an agreement with Design Concepts CLA, Inc. for the design, engineering, and development of construction documents for the Fountain Creek Watershed Trails and Recreation Projects, Access, and Activity Area? RECOMMENDATION Approval of this Resolution. BACKGROUND In June of 2012, the City of Pueblo, City of Colorado Springs, and El Paso County received a Great Outdoors Colorado River Corridors Initiative Grant totaling $2,501,350 to fund the Fountain Creek Watershed Trails and Recreation Project consisting of multiple outdoor recreation projects along the Fountain Creek Corridor and Front Range Trail. The City of Pueblo was awarded $1,301,350 for its portion of the overall project, which consists of trail construction and the Creek Side Access and Activity Area. The City advertised a Request for Proposals and received responses from five firms. A selection committee evaluated the proposals, interviewed three firms and deemed Design Concepts CLA, Inc. as the most qualified. FINANCIAL IMPACT The total cost of professional services is $300,896 and will be paid from The Fountain Creek Watershed Trails and Recreation Projects, Access and Activity Area, Project No. PL1203. Professional service fees are broken down as follows: Study and Report Phase $40,845.00 Preliminary Design Phase $86,760.00 Final Design Phase $67,174.00 Construction Documents and Bidding Phase $63,096.00 Construction Management Phase $37,911.00 Contingency $5,110.00 Total Fee by Consultant $300,896.00 Total Fountain Creek Watershed Trails and Recreation Projects, Access and Activity Area fees are broken down as follows: Professional services $300,896.00 Estimated cost for construction of project $1,760,363.20 Construction contingency 20% $440,090.80 Total Project Costs $2,501,350.00 STANDARD FORM OF AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT made and entered this 22 day of ,T y , 20 11 by and between the City of Pueblo, a Municipal Corporation (hereinafter "Owner ") andpea; , a professional consulting firm (hereinafter "Consultant ") for Consultant to render ce`tr ain professional engineering, fi architectural, and related services for Owner in connection with the Fountain Creek Watershed Trails and Recreation Projects, Access and Activity Area hereinafter referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows: SECTION I. GENERAL. 1.1 Consultant shall satisfactorily perform professional Consulting services for all phases of the Project indicated below by mark placed in the appropriate box or boxes: { [X] - Study and Report Phase [X] - Preliminary Design (Schematic) Phase [X] - Final Design Phase [X] - Construction Documents & Bidding Phase [X] - Construction Management Phase Upon completion of any phase, Consultant 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 landscape architectural and the furnishing (directly or through its professional consultants) of customary and usual civil, structural, mechanical, electrical engineering, environmental, and planning services. Consultant shall also provide any landscape consulting, surveying and geotechnical services. 1.2 In performing the professional services, Consultant 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 Consultant 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. (Agreement For Professional Services — CA Revised and Apprd 7/8/13) 1.5 Any landscape architectural services provided under this Agreement shall be performed under the direction and supervision of a landscape architect licensed to practice landscape architecture in the state of Colorado. SECTION 2. PROFESSIONAL SERVICES, 2,1 Study and Report Phase. If Consultant is to provide professional services with respect to the Project during the Study and Report Phase, Consultant 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 Consultant's findings and recommendations with opinions of probable costs. (g) Furnish 5 copies of the Report and present and review it in person with Owner. 2.2 Preliminary Design (Schematic) Phase. If Consultant is to provide professional services with respect to the Project during the Preliminary Design Phase, Consultant 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. (Agreement For Professional Services - CA Revised and Apprd 7/8/13) -2- (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) Consultant shall furnish 5 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 Consultant is to provide professional services with respect to the Project during the Final Design Phase, Consultant 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 therefore. 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 the 2010 ADA Standards for Accessible Design as published by the Department of Justice in the Federal Register on September 15, 2010. Consultant shall include an attest statement on each record drawing sheet of final plan drawings that certifies compliance with the 2010 ADA Standards. (b) Make reasonable revisions to the Drawings and Specifications requested by Owner, infortning 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 Consultant'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) Consultant shall furnish 5 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 Consultant is to provide professional services with respect to the Project during the Construction Documents & Bidding Phase, Consultant 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, Consultant 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 (Agreement For Professional Services -- CA Revised and Apprd 7/8/13) -3- conditions, Drawings, specifications, bid forms, invitations to bid, information for bidders, and forms of warranty, together with any Addenda which may be required or appropriate to correct errors, clarify Drawings or Specifications or advise of changes. 25 copies of these final bid documents shall be furnished to Owner. Unless otherwise specified in Appendix A, a copy of all contract documents and drawings shall also be submitted to Owner in Microsoft Word and AutoCADD (2013 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 Consultant in writing to all plan holders. (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 Consultant's advice. 2.5 Construction Management Phase. If Consultant 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, Consultant shall: (a) Perform all duties and functions to be performed by Consultant 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 Consultant'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. (Agreement For Professional Services — CA Revised and Apprd 7/8/13) -4- (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 Consultant'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 Consultant 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 Consultant 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 Consultant 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 Consultant'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 Consultant's work. (a) Consultant shall be responsible for the professional quality, technical accuracy, timely completion and coordination of all of Consultant's work, including that performed by sub- consultants, and including designs, Drawings, Specifications, reports and other services, irrespective of Owner's approval or acquiescence in same. Consultant shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in his work. (b) Consultant shall be responsible, in accordance with applicable law, to Owner for all loss or damage to Owner caused by Consultant's negligent act or omission; except that Consultant 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) Consultant'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) Consultant shall be completely responsible for the safety of Consultant'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 Owner loss or injury to Consultant's employees. (Agreement For Professional Services - -CA Revised and Apprd 7/8/13) - 5 - (e) Consultant 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 sub - consultants to whom Consultant assigns principal responsibility for services performed under this Agreement. Consequently, Consultant represents that Consultant 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, sub - consultant or assignment of principal responsibility, in which case Consultant will employ alternate personnel for such function or reassign such responsibility to another to whom Owner has no reasonable objection. Thereafter, Consultant shall not assign or reassign Project work to any person to whom Owner has reasonable objection. Within 5 days of execution of this Agreement, Consultant shall designate in writing a Project representative who shall have complete authority to bind Consultant, and to whom Owner should address communications. (f) Promptly after execution of this Agreement and upon receipt of authorization from Owner to proceed, Consultant shall submit to Owner for approval a schedule showing the order in which Consultant 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 Project work, provided however, the Consultant will not be responsible for delays beyond his control. (g) Before undertaking any work which Consultant considers beyond or in addition to the scope of work and services which Consultant has contractually agreed to perform under the terms of this Agreement, Consultant shall advise Owner in writing (i) that Consultant considers the work beyond the scope of this Agreement, (ii) the reasons the Consultant believes the out of scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such work. Consultant shall not proceed with 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 Consultant shall be compensated for his direct costs and professional time at the rates set forth in Appendix A - "Scope of Service and Fee Schedule ". (h) Consultant acknowledges that funds to effectuate this Agreement have been received by Owner under a Great Outdoors Colorado (GOCO) River Corridors Initiative Grant. Consultant acknowledges that it has read the Grant Agreement between GOCO and Owner and Consultant agrees to abide by said Grant Agreement and to indemnify Owner against any losses resulting from Consultant's violations of the Grant Agreement. 2.7 Requirements Where Federal Assistance Provided., [TFIIS SECTION RESERVED - NOT APPLICABLE TO THIS CONTRACT] SECTION_ 3. OWNER'S RESPONSIBILITIES 3.1 Owner shall: (Agreement For Professional Services -- CA Revised and Apprd 7/8/13) -6- (a) Designate a representative to whom all communications from Consultant 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 Consultant 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 Consultant 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 Consultant to have access to enter private and public property as required for Consultant to perform his services. (e) Examine all studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by Consultant, 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 Consultant 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 Consultant, obtain required approvals and permits for the Project. The Consultant shall provide all supportive documents and exhibits necessary for obtaining said approvals and permits. (g) Notify Consultant whenever Owner becomes aware of any substantial development or occurrence which materially affects the scope or timing of Consultant'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. Consultant'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 Consultant as full compensation for all services required to be performed by Consultant under this Agreement, except for services for additional work or work beyond the scope of this Agreement, an amount not to exceed $ 300,896.00 in the aggregate, and not to exceed those maximum amounts set forth in Appendix A - "Scope of Service and Fee Schedule" and computed in (Agreement For Professional Services — CA Revised and Apprd 7(8/13) -7 • accordance with this Section. 5.2 Consultant 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 Consultant 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 Consultant's services on the Project phases for which this Agreement is applicable have been completed to Owner's reasonable satisfaction and all required Consultant submittals have been provided. Consultant acknowledges that the Owner will retain up to 10% of each periodic application for payment. By bidding upon and entering into this Agreement, the Consultant knowingly and voluntarily waives any and all right or entitlement it may have for a lesser percentage to be retained from payments pursuant to Section 24- 91- 103(1)(a), Colorado Revised Statutes. 5.3 The rates of compensation for service and for reimbursable expenses to he used with periodic and final payment applications shall be those set forth in Appendix B - "Fee Schedule." 5.4 No separate or additional payment shall be made for profit, overhead, local telephone expenses, lodging, routine photocopying, computer time, secretarial or clerical time or similar expenses unless otherwise provided and listed in Appendix A - "Scope of Service and Fee Schedule." 5.5 No compensation shall be paid to Consultant for services required and expenditures incurred in correcting Consultant'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 Consultant reserves the right to terminate this Agreement and Consultant's performance hereunder, at any time upon written notice, for cause. The Owner reserves the right to terminate this Agreement and Consultant's performance hereunder, at any time upon written notice, either for cause or for convenience. Upon such termination, Consultant 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 Consultant 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 Consultant, Consultant shall be paid at the rates specified in Appendix A - "Scope of Service and Fee Schedule" 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 Consultant. In no event shall payment to Consultant 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 Consultant's services is for breach of this Agreement by Consultant, or for other fault of Consultant including but not limited to any failure to (Agreement For Professional Services — CA Revised and Apprd 7/8/13) -8- 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 Consultants specializing in the design of park, trail and skateboarding amentities or to perform work in a manner deemed unsatisfactory by Owner's Director of Public Works, then in that event, Consultant'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 Consultant's professional responsibility for his completed work and services shall survive any termination. SECTION 7. GENERAL PROVISIONS. 7.1 (a) Ownership of Documents. All final designs, Drawings, Specifications, technical data, and other documents or instruments procured or produced by the Consultant 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 Consultant 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 Consultant, } Owner shall hold harmless and indemnify Consultant 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, Consultant shall not include representations of the Project in any advertizing or promotional materials, except for accurate statements contained in resumes or curriculum vitae of Consultant's employees. If Consultant 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 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 (Agreement For Professional Services — CA Revised and Apprd 7/8/13) -9- } occunrence for personal injury, including but not limited to death and bodily injury, Six Hundred Thousand and No /100 Dollars ($600,000.00) per occurrence for property damage, and One Million and No /100 Dollars ($1,000,000.00) for excess umbrella liability. (iii) Professional Liability Insurance in amounts and form acceptable to Owner, and with a deductible not exceeding $15,000.00. (c) Consultant agrees to hold harmless and indemnify Owner from and against any liability to third parties, arising out of negligent acts, errors or omissions of Consultant, 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 Consultant by the other party shall be in writing and shall he 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 Consultant at 211 N. Public Road, Suite 200, Lafayette, CO 8002. 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 Consultant respecting the Project, and any other written or oral agreement or representation respecting the Project or the duties of either the Owner or the Consultant 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 Consultant 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 Consultant 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, Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, disability or age. Consultant shall endeavor to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, disability or age. 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. (Agreement For Professional Services — CA Revised and Apprd 7/8/13) - 10 However, it is the intent of the parties that Section 2.6 of this Agreement not be severable, and that if any provision of said section be determined to be contrary to law or the terms of any federal grant, then this entire Agreement shall be void. 7.10 Appropriations. Subject to execution of this Agreement by the Director of Finance certifying that a balance of appropriation exists and funds are available, the amount of money appropriated for this Agreement is equal to or in excess of the maximum compensation payable hereunder; provided, however, that if construction is phased and subject to annual appropriation, funds only in the amount of initial appropriation are available and Consultant shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. 7.11 Additional Requirements on Federally Funded Contracts. If any of the work to be performed by Consultant 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, Consultant agrees to be bound by all such mandatory federal requirements, irrespective of Consultant'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. Consultant acknowledges that the Project may require access to property not under the control of Owner at the time of execution of this Agreement. Consultant and Consultant's employees and consultants shall, at Consultant's expense, obtain all additional necessary approvals and clearances required for access to such property. Owner shall assist Consultant in obtaining access to such property at reasonable times but make 110 warranty or representation whatsoever regarding access to such property. Consultant understands and agrees that entry to properties not under Owner's control may require Consultant to comply with the tenns of separate access agreements to be negotiated hereafter with owners of such property. SECTION 8. DISPUTES. 8.1 Any dispute or disagreement between Consultant and Owner arising from or relating to this Agreement or Consultant'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, Consultant 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 and Fee Schedule" consisting of 1 page. Appendix B - "Identification of Personnel, Subcontractors and Task Responsibility".. consisting of 2 pages. (Agreement For Professional Services — CA Revised and Apprd 7/8/13) - 11 - 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 Consultant 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 - 1 — STATE IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK (a) At or prior to the time for execution of this Agreement, Consultant 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 Consultant 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) Consultant shall not: (1) Knowingly employ or contract with an illegal alien to perform work under this contract; (II) Enter into a contract with a subconsultant that fails to certify to Consultant 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 Consultant 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 Consultant 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 Consultant 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 Consultant shall be required to: A. Notify the subconsultant and the Purchasing Agent of the City within three (3) days that the Consultant 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 (Agreement For Professional Services — CA Revised and Apprd 7/8/13) - 12 - • subconsultant does not stop employing or contracting with the illegal alien; except that the Consultant 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 Consultant is required to comply with any reasonable request by the Colorado Department of Labor and Employment (hereinafter referred to as "CDLE ") made in the course of an investigation that CDLE is undertaking pursuant to its authority under §8 -17.5- 102(5), C.R.S. (d) Violation of this Section by the Consultant shall constitute a breach of contract and grounds for tennination. In the event of such termination, the Consultant shall be liable for Owner's actual and consequential damages. (e) Nothing in this Section shall be construed as requiring the Consultant to violate any terms of participation in the E- Verify Program. (t) Violation of this Section 11 by the Consultant shall constitute a breach of contract and grounds for termination. In the event of such termination, the Consultant 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 Consultant 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 1 and submit the completed form to City as part of the signed Agreement. SECTION_ 13. MISCELLANEOUS PROVISIONS 13.1 Third -Party Beneficiaries. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or the Consultant. The Consultant's services under this Agreement are being performed solely for the Owner's benefit, and no other party or entity shall have any claim against the Consultant because of this Agreement or the performance or nonperformance of services hereunder. 13.2 Corporate Protection for Breach of Contract. It is intended by the parties to this Agreement that the Consultant's services in connection with the Project shall not subject the Consultant's individual employees, officers or directors to any personal legal exposure for violation of this Agreement. Therefore, and notwithstanding anything to the contrary contained herein, the Client agrees that as the Client's sole and exclusive remedy, any claim, demand or suit for breach of this Agreement shall be directed and/or asserted only against the Consultant, a Colorado corporation, and not against any of the (Agreement For Professional Services — CA Revised and Apprd 7/8/13) - 13 - Consultant's individual employees, officers or directors. 13.3 Consequential Damages for Breach of Contract. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the Client nor the Consultant, their respective officers, directors, partners, employees, contractors or sub - consultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages for breach of this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation and any other consequential damages resulting from a breach of this Agreement. (Signature page follows) (Agreement For Professional Services —CA Revised and Apprd 7/8/13) - 14 - • 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 CONSULT • NT Name: O �;. i�r i By Ahmig By /r 1 � nv Preto the City Council � `title Attest:_ City rk [ S E: A L _] BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. (era h. Ado / yj k"/,... Director of Finance APPROVED AS TO FORM: 7vr City Attorney (Agreement For Professional Services —CA Revised and Apprd 718/13) - 15 - Appendix A Scope of Services and Fee Schedule A 81 1 8 I 8 8 8 8 8 g IA g i f .1 s1 1 4 8 I 8 8 s 8 882 ., 888888 88888888 888888 8,88 Q 8 � aag 811 §.V 91189 §9§ 888888 §$ §.; R. 8 8 g g w 8 8._.., .8, 8 8 8 " 8 8 ;8 8 0 8 8 9 9 8 53 ea 8 $ 8888886' 888888 '88888888 88888 $8. 11$8181. 11fi 3 8 % 81 i ; 888 8 88 »8 : } g 8 8 8 8 8 "' 8 s 7 a w » g d 8 ' d 0 , : - * S r f O W S == 3 8888888 888888 88888888 888888 888 8 8 ., • gasagag 888228 asaaaaaa . 188888 988 ,8 I E $ g • 8 8 g d 8' 8 i 8888888 888888 88888888 888888 888 8 8 88 §88 §§ 2822 88222882 888888 998 g g »a' N E 8 8 88 8 8 8 8 8 8888888 8888 -8 88888888 888888 888 2 g 8 8 888 §918 88 2888 828.9898 838888 991, ; g a 3 : ; s m M w w R E.8.. g g 8 8 8 8 8 g 8 C 8 8 1, d 8 g 8 g O ri 5 W_µ 888888 888888 88888888 888888 888 8 8 ,4 222888;1 801'1 1 182884 85�1 811 V i x : 1 m w 4 s ° 8 f le 8 �+ w a l 8 u ' 8 8 88 $ 8 8 88 8 8 '8 8 8 53 ! q 8 a ow 8 g 88 8 a A ti S � -"ES 8 888 8 88 888 8 8 8 8.. 8! - „ ,,,I 8888888 8888 =. 8' 88888888 888888 888 o E 2821820 888814 Sg8 8888 §88f21 891, 8 o g w V I 8' 88 8 88 :s sa 88 88 ' 8, 8 8 $ 8 8 1 ` g 2' 811 � 8 A"' 88 g 2i A I a 88888,5 8888 8 81.88 8888 3 8 g 8 c nl $$ 1Rg' 4. age CgkI 6 g 1 ti 2 r 8 t c „ n w' p ......M wM Q L S - w - '''° 8 V w -- ,- .. -.•.- ' . 6 2 S° w R 8. o$3 °R.9 °2 § R 7 .2 3 f l bw 88 o osr1_R 8 8 P o it a m „ 8 i ' „8 t rt w B. 1 " 4 E O a - ,,,g- N N a - g p1 p u S Yl g c fi g, u Z ' ¢, ° a ;11'1 a 4l n i W t8 ; U Iii;! rfl g1 ;1$ Q IA ' V « aLL u 1 Appendix B Identification of Personnel, Subcontractors and Task Responsibility • f Pueblo Staff Design Concepts — Lead Consultant Axel Bishop — Principal -in- Charge Axel will be the Principal for the project, he will provide full accountability, design oversight, and public meeting facilitation. Robyn Bartling — Project Manager Robyn will oversee day to day communication, coordination with city staff and consultant team, design, documentation and construction administration. Jennifer Gee — Project Landscape Designer Jennifer will provide design and production support during the design and documentation process Andy Veith — Landscape Designer Andy will provide support for the team and be the primary production support. Tapis Associates, Inc. Priscilla Marbaker, LEED AP Priscilla will lead the process with the City of Pueblo and provide the Fatal Flaw Analysis and coordination with city departments and various government agencies. She will provide trail planning and design. Muller Engineering Bruce Behrer, PE, CRM, CPESE — Principal Bruce will provide public facilitation and engineering oversight and full engineering accountability. Steven Humphrey, PE, LEED AP — Project Engineer Steven will provide engineering for civil, jetty design, and drainage design. Page 1 of 2 Team Pain Tito Porratta Tito will provide public facilitation, skate park design and coordination with the design team. RMH Mark Rudiger, JES, LEED, AP — Will provide the lighting and electrical design for the project. Kirsten Cremona, PE, LEED AP BD +C — Is the Lead Electrical Engineer ERO Resources Corp Mary Powell, Principal Mary will provide the Phase 1 Environmental Assessment for the project and any additional support needed for ecological resources. Terracon Rob Hernandez Rob will provide all soils testing and soils reports. Edward James Surveying, Inc. Ed Fischer, PLS, Principal Randel Nelson, Project Surveyor Surveying, Alta Surveying, Utility Locates Page 2 of 2 Exhibit 1 PERA Questionnaire Exhibit 1 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_, No (Must sign below whether you answer "yes" or no ".) (b) If you answered "yes" to (a) above, please answer the following question: Are you an individual, sole proprietor or partnership, or a business or company owned or operated by a PERA Retiree or an affiliated party? Yes , No . If you answered "yes" please state which of the above 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 paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo. Failure to accurately complete, sign and return this document to the City of Pueblo may result in your being denied the privilege of doing business with the City of Pueblo. Signed , 20 By: Name: Title: For purposes of responding to question (b) above, an "affiliated party" includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or compensation. PERA 2 -9 -2009 Exhibit 1 COLORADO PUBLIC EMPLOYEES RETIREMENT ASSOCIATION 0 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_, No . (Must sign below whether you answer "yes "or no ".) (b) If you answered "yes" to (a) above, please answer the following question: Are you an individual, sole proprietor or partnership, or a business or company owned or operated by a PERA Retiree or an affiliated, party? Yes , , No . If you answered "yes" please state which of the above 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 paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo. Failure to accurately complete, sign and return this document to the City of Pueblo may result in your bei g denied the privilege of doing business with the City of Pueblo. Signed 1 , 20 r /i�L By: L V% . �:�.. /� Na - AlliM ..� Title: f r v' c._ r a_ 1 , For purposes of responding to question (b) above, an "affiliated party" includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's siblings; and (4) any person or entity with whom the PERA 0 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