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HomeMy WebLinkAbout14562RESOLUTION NO. 14562 A RESOLUTION AWARDING AN AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES TO BRIDGERS & PAXTON CONSULTING ENGINEERS, INC. A NEW MEXICO CORPORATION, FOR PROJECT NO. 20-068 RFP MECHANICAL ENGINEERING CONSULTING SERVICES FOR CITY FACILITIES WHEREAS, proposals for Project No. 20-068 RFP Mechanical Engineering Consulting Services for City Facilities, have been received and examined; WHEREAS, the proposal of Bridgers & Paxton, Inc., of Albuquerque, New Mexico was determined to be the most advantageous to the City, and in the best interest of the City, based on the evaluation factors set forth in the Request for Proposals; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. An Agreement for Professional Consulting Services for Project No. 20-068 RFP Mechanical Engineering Consulting Services for City Facilities is hereby awarded to said bidder. SECTION 2. Funds for said Agreement shall be from future budgeted and appropriated project accounts as needed. SECTION 3. The Purchasing Agent is hereby authorized to execute said contract on behalf of Pueblo, A Colorado Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. SECTION 4. The officers and staff of the City are authorized to perform any and all acts consistent with this Resolution to implement the policies and procedures described herein. SECTION 5. This Resolution shall become effective immediately upon passage and approval. INTRODUCED February 22, 2021 BY: Ed Brown MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: CITY CLERK City Clerk’s Office Item # M-3 Background Paper for Proposed Resolution COUNCIL MEETING DATE: February 22, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, City Clerk FROM: Andrew E. Hayes, P.E., Acting Director of Public Works SUBJECT: A RESOLUTION AWARDING AN AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES TO BRIDGERS & PAXTON CONSULTING ENGINEERS, INC. A NEW MEXICO CORPORATION, FOR PROJECT NO. 20- 068 RFP MECHANICAL ENGINEERING CONSULTING SERVICES FOR CITY FACILITIES SUMMARY: This Resolution awards an Agreement for Professional Consulting Services to Bridgers & Paxton Consulting Engineers, Inc. for mechanical engineering consulting services for City facilities. PREVIOUS COUNCIL ACTION: Not applicable to this Resolution. BACKGROUND: In November 2020, the City of Pueblo solicited Requests for Proposals for mechanical engineering consulting to assist the City with on-call services for mechanical engineering for City facilities. FINANCIAL IMPLICATIONS: The cost for services will be paid from future repair or building mechanical equipment repair or replacement projects as needed. BOARD/COMMISSION RECOMMENDATION: Not Applicable to this Resolution. STAKEHOLDER PROCESS: Not Applicable to this Resolution. ALTERNATIVES: Denial of this Resolution will result in the City being unable to proceed with the agreement. RECOMMENDATION: Approval of the Resolution. Attachments: Proposed Resolution, Agreement for Professional Services, Schedule 1 (Scope of Service), and Schedule 2 (Fee Schedule) AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered this 23rd day of February,2021,by and between Pueblo,a Municipal Corporation(hereinafter referred to as"Client")and Bridgers&Paxton Consulting Engineers,Inc.(hereinafter referred to as"Consultant")for Consultant to render professional mechanical engineering services as projects are needed for Client with respect to Bid 20-068 RFP—Mechanical Engineering Consulting Services for City Facilities,hereinafter and related ancillary services,hereinafter referred to as the"Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows: SECTION 1. GENERAL AND SCOPE OF SERVICES. (a) Consultant shall satisfactorily perform the professional engineering,planning,and consulting services for any projects awarded under this agreement which Scope of Service is described in more detail in Schedule 1 attached hereto and incorporated herein by reference(the"Basic Services"). Such services shall include all usual and customary professional mechanical engineering services including any required engineering,planning,drafting or design services incident to its work on each awarded Project.In the event this Agreement follows the selection of Consultant by Client pursuant to a Request for Proposals or RFP,all of the requirements of that Request for Proposal or RFP are incorporated herein by reference,unless any requirement is expressly excluded in Schedule 1. (b) To the extent Consultant performs any of the Project work through subcontractors or subconsultants, Consultant shall be and remain as fully responsible for the full performance and quality of services performed by such subcontractors or subconsultants as it is for services performed directly by Consultant or Consultant's employees. (c) To the extent Consultant requires access to private property to perform its services hereunder, Consultant shall be required to make arrangements to obtain such access. However, in the event Client has already secured access for Consultant to any such property through a right of entry agreement, access agreement, letter of consent or other instrument, Consultant shall fully comply with and be subject to the terms and conditions set forth therein. A copy of any such instrument will be provided to Consultant upon request. SECTION 2. CONSULTANT'S RESPONSIBILITIES. (a) Consultant shall be responsible for the professional quality,technical accuracy and timely completion of Consultant's work, including that performed by Consultant's subconsultants and subcontractors, and including drawings, reports and other services, irrespective of Client's approval of or acquiescence in same. (b) Consultant shall be responsible,in accordance with applicable law,to Client for all loss or damage to Client caused by Consultant's negligent act or omission;except that Consultant hereby irrevocably waives and excuses Client and Client's attorneys from compliance with any requirement to obtain a certificate of review as a condition precedent to commencement of an action, including any such requirements set forth in Section 13-20-602, C.R.S. or similar statute,whether now existing or hereafter enacted. (c) Consultant shall be completely responsible for the safety of Consultant's employees in the execution of work under this Agreement and shall provide all necessary safety and protective equipment for said employees. (d) Consultant acknowledges that time is of the essence with respect to the completion of its services on any projects awarded under this Agreement. Except to the extent the parties agree to time extensions for delays beyond the control of Consultant,Consultant shall adhere to required schedules and perform its work in a timely manner so as not to delay Client's timetable for achievement of interim tasks and final completion of Project work. Consultant further acknowledges that its schedule for each awarded project under this agreement for all reasonably anticipated delays, including those inherent in the availability of tools,supplies,labor and utilities required for the work,the availability of information which must be obtained from any third parties,and all conditions to access to public and private facilities. (e) Before undertaking any work or incurring any expense which Consultant considers beyond or in addition to the Scope of Work described in Schedule 1 for any awarded project under this agreement or otherwise contemplated by the terms of this Agreement,Consultant shall advise Client in writing that(i)Consultant considers the Primary Agreement for 20-068 Page 1 of 9 work beyond the scope of this Agreement,(ii)the reasons that Consultant believes the out of scope or additional work should be performed,and(iii)a reasonable estimate of the cost of such work. Consultant shall not proceed with any out of scope or additional work until authorized in writing by Client. The compensation for such authorized work shall be negotiated,but in the event the parties fail to negotiate or are unable to agree as to compensation,then Consultant shall be compensated for its direct costs and professional time at the rates set forth in Schedule 2 attached hereto. SECTION 3. FEES FOR SERVICES; PAYMENT. (a) Client will pay to Consultant as full compensation for all services required to be performed by Consultant under this Agreement,except for services for additional work or work beyond the scope of this Agreement computed as set forth in Schedule 2. (b) Consultant shall submit periodic, but not more frequently than monthly, applications for payment, aggregating to not more than the maximum amount set forth above, for actual professional services rendered and for reimbursable expenses incurred. Applications for payment shall be submitted based upon the hourly rates and expense reimbursement provisions set forth in Schedule 2 for each awarded project as attached hereto and shall contain appropriate documentation that such services have been performed and such expenses incurred. Thereafter,Client shall pay Consultant for the amount of the application within 45 days of the date such application is received. (c) No separate or additional payment shall be made for profit, overhead, local telephone expenses, lodging,routine photocopying,computer time,secretarial or clerical time or similar expenses unless otherwise provided and listed in Schedule 2. (d) No compensation shall be paid to Consultant for services required and expenditures incurred in correcting Consultant's mistakes or negligence. (e) Compensation for authorized work beyond the scope of this Agreement shall be governed by the provisions of Section 2(e). (f) In the event services under this Agreement are phased and to be performed in more than one fiscal year or are subject to annual appropriation, Consultant acknowledges that funds only in the amount of initial appropriation are available and it shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. SECTION 4. CLIENT'S RESPONSIBILITIES. (a) Client agrees to advise Consultant regarding Client's Project requirements and to provide all relevant information, surveys,data and previous reports accessible to Client which Consultant may reasonably require. (b) Client shall designate a Project Representative to whom all communications from Consultant shall be directed and who shall have limited administrative authority on behalf of Client to receive and transmit information and make decisions with respect to the Project. Said representative shall not,however,have authority to bind Client as to matters of governmental policy or fiscal policy,nor to contract for additions or obligations exceeding a value which is the lesser of$5000 or 5%of the maximum contract price. (c) Client shall examine all documents presented by Consultant,and render decisions pertaining thereto within a reasonable time. The Client's approval of any drawings,specifications,reports,documents or other materials or product furnished hereunder shall not in any way relieve Consultant of responsibility for the professional adequacy of its work. (d) Client shall perform its obligations and render decisions within a reasonable time under the circumstances presented. Based upon the nature of Client and its requirements,a period of 14 days shall be presumed reasonable for any decision not involving policy decision or significant financial impact, when all information reasonably necessary for Client to responsibly render a decision has been furnished. A period of 46 days shall be presumed reasonable for Client to act with respect to any matter involving policy or significant financial impact. The above periods of presumed reasonableness shall be extended where information reasonably required is not within the custody or control of Client but must be procured from others. Primary Agreement for 20-068 Page 2 of 9 SECTION 5. TERM AND TERMINATION (a) Term. The term of this Agreement begins on the Effective Date and ends on January 31,2022,unless sooner terminated in accordance with this Agreement. City reserves the right to extend the term of this Agreement in New one-year increments by written acceptance of both parties. (b) Fund Appropriation. This agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, §20 of the Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this agreement,with respect to any financial obligation of City which may arise under this agreement in any fiscal year after the current year, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation,such failure shall not constitute a default by or breach of this agreement. The termination of this Agreement due to lack of funding shall be without penalty to the City. (c) Client reserves the right to terminate this Agreement and Consultant's performance hereunder,at any time upon written notice,either for cause or for convenience. Upon such termination,Consultant and its subcontractors shall cease all work and stop incurring expenses,and shall promptly deliver to Client all data,drawings,specifications, reports,plans,calculations,summaries and all other information,documents,work product and materials as Consultant may have accumulated in performing this Agreement,together with all finished work and work in progress. (d) Upon termination of this Agreement for events or reasons not the fault of Consultant,Consultant shall be paid at the rates specified in Schedule 2 for all services rendered and reasonable costs incurred to date of termination; together with any reasonable costs incurred within 10 days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Consultant or Client. In no event shall payment to Consultant upon termination exceed the maximum compensation provided for complete performance in Section 3(a). (e) In the event termination of this Agreement or Consultant's services is for breach of this Agreement by Consultant,or for other fault of Consultant including but not limited to any failure to timely proceed with work,or to pay its employees and consultants,or to perform work according to the highest professional standards,or to perform work in a manner deemed satisfactory by Client's Project Representative, then in that event, Consultant's entire right to compensation shall be limited to the lesser of(a)the reasonable value of completed work to Client or(b)payment at the rates specified in Schedule 2 for services satisfactorily performed and reimbursable expenses reasonably incurred,prior to date of termination. (f) Consultant's professional responsibility for its completed work and services shall survive any termination. SECTION 6. SITE ACCESS. In the event the Project will require access to property not under the control of Client, Consultant and Consultant=s employees and consultants shall obtain all additional necessary approval and clearances required for access to such property. Client shall assist Consultant in obtaining access to such property at reasonable times but makes no warranty or representation whatsoever regarding access to such property. Notwithstanding the foregoing,Consultant understands and agrees that entry to some property by Consultant may be subject to compliance by Consultant with the terms and conditions of an access agreement in accordance with section 1(c)of this Agreement. SECTION 7. USE OF DOCUMENTS. (a) The Client acknowledges the Consultant's construction documents,including electronic files,as the work papers of the Consultant and the Consultant's instruments of professional service.Nevertheless,upon completion of the services and payment in full of all monies due to the Consultant, the Client shall receive ownership of the final construction documents prepared under this Agreement. The Client shall not reuse or make any modification to the construction documents without the prior written authorization of the Consultant.The Client agrees,to the fullest extent permitted by law, to defend, indemnify and hold harmless the Consultant, its officers, directors, employees and sub- consultants(collectively,Consultant)against any damages,liabilities or costs,including reasonable attorneys'fees and defense costs,arising from or allegedly arising from or in any way related to or connected with the unauthorized reuse or Primary Agreement for 20-068 Page 3 of 9 modification of the construction documents by the Client or any person or entity that acquires or obtains the construction documents from or through the Client without the written authorization of the Consultant. (b) Under no circumstances shall the transfer of ownership of the Consultant's drawings,specifications, electronic files or other instruments of service be deemed a sale by the Consultant, and the Consultant makes no warranties,either express or implied,of merchantability and fitness for any particular purpose,nor shall such transfer be construed or regarded as any waiver or other relinquishment of the Consultant's copyrights in any of the foregoing,full ownership of which shall remain with the Consultant,absent the Consultant's express prior written consent. SECTION 8. INSURANCE AND INDEMNITY. (a) Consultant agrees that it shall procure and will maintain during the term of this Agreement, such insurance as will protect it from claims under workers' compensation acts, claims for damages because of personal injury including bodily injury, sickness or disease or death of any of its employees or of any person other than its employees,and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom; and such insurance will provide for coverage in such amounts as set forth in subparagraph(b). (b) The minimum insurance coverage which Consultant shall obtain and keep in force is as follows: (i) Workers'Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. The Workers' Compensation Insurance policy shall contain an endorsement waiving subrogation against the Client. (ii) Commercial General Liability Insurance. The Consultant shall secure and maintain during the period of this agreement/contract and for such additional time as work on the project is being performed, Commercial General Liability Insurance issued to and covering the liability of the contractor with respect to all work performed by him and all his subcontractors under the agreement/ contract, to be written on a comprehensive policy form. This insurance shall be written in amounts not less than $1,000,000 for each occurrence and aggregate for personal injury including death and bodily injury and $1,000,000 for each occurrence and aggregate for property damage. This policy of insurance shall name the City of Pueblo, its agents, officers and employees as additional insureds. This policy shall have all necessary endorsements to provide coverage without exclusion for explosion and collapse hazards,underground property damage hazard, blanket contractual coverage,as well as Owner's and Contractor's Protective Liability(OCP)coverage. The policy shall also provide coverage for contractual liability assumed by Contractor under the provisions of the Agreement/Contract,and"Completed Operations and Projects Liability"coverage. (iii) Professional Liability insurance with coverage of not less than 51.000,000. (iv) Comprehensive Automobile Liability insurance. The Consultant shall procure and maintain during the period of the agreement/contract and for such additional time as work on the project is being performed, Comprehensive Automobile Liability insurance. This insurance shall be written with limits of liability for and injury to one person in any single occurrence of not less than$350,000 and for any injury to two or more persons in any single occurrence of not less than $1,000,000. This insurance shall include uninsured/underinsured motorist coverage and shall protect the Consultant from any and all claims arising from the use both on and off the site of the project of automobiles,trucks,tractors,backhoes and similar equipment whether owned, leased,hired or used by Consultant. (c) Consultant agrees to hold harmless,defend and indemnify Client from and against any liability to third parties,arising out of negligent acts or omissions of Consultant, its employees, subcontractors and consultants. SECTION 9. SUBCONTRACTS. (a) Client acknowledges that Consultant is the prime contractor and the only party with whom Client has a contractual relationship under this Agreement. To the extent Consultant performs any Project activities through subconsultants or subcontractors,Consultant shall contractually bind each of its subconsultants and subcontractors by subcontract agreement to all of the terms of this Agreement which are for the benefit of Client,and Client shall be a third party beneficiary of those subcontract provisions. Primary Agreement for 20-068 Page 4 of 9 (b) Consultant shall indemnify and defend Client from all claims and demands for payment for services provided by subcontractors of Consultant. (c) Consultant acknowledges that,due to the nature of the services to be provided under this Agreement, the Client has a substantial interest in the personnel and consultants to whom Consultant assigns principal responsibility for services performed under this Agreement. Consequently, Consultant represents that it has selected and intends to employ or assign the key personnel and consultants identified in its proposal submitted to Client prior to execution of this Agreement to induce Client to enter this Agreement. Consultant shall not change such consultants or key personnel except after giving notice of a proposed change to Client and receiving Client's consent thereto. Consultant shall not assign or reassign Project work to any person to whom Client has reasonable objection. SECTION 10. MISCELLANEOUS. (a) Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Consultant or Client by the other party shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service, when deposited in the United States mail, first-class postage prepaid, addressed to the Client, City of Pueblo, Attention: Director of Public Works, 211 E. D Street, Pueblo, CO 81003, or to Consultant, Bridgers & Paxton Consulting Engineers,Inc.at 1365 Garden of the Gods Road,Suite 260,Colorado Springs,CO 80907. Either party may change his address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. (b) Entire Agreement. This instrument contains the entire agreement between Consultant and Client respecting the Project,and any other written or oral agreement or representation respecting the Project or the duties of either Client or Consultant in relation thereto not expressly set forth in this instrument and its attachments is null and void.In the case of any conflict between the terms of this Agreement for Professional Services and terms of Schedule 1 or any other attachment hereto, the terms of this Agreement shall govern. (c) Successors and Assigns. This Agreement shall be binding on the parties hereto and on their successors and assigns; provided,however, neither this Agreement, nor any part thereof, nor any moneys due or to become due hereunder to Consultant may be assigned by it without the written consent of Client,which consent may be withheld in Client's sole and absolute discretion. Any assignment or attempted assignment in violation of this subsection shall be void. (d) Amendments. No amendment to this Agreement shall be made nor be enforceable unless made by written amendment signed by an authorized representative of Consultant and by Client in accordance with the requirements of Section 4(b)of this Agreement or upon authorization of Client's governing board. (e) Choice of Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado. Any unresolved dispute arising from or concerning any breach of this Agreement shall be decided in a state court of competent jurisdiction located in Pueblo, Colorado. (f) Equal Employment Opportunity. In connection with the performance of this Agreement, neither Consultant nor its consultants shall discriminate against any employee or applicant for employment because of race, color,religion,sex,national origin,disability or age. Consultant shall endeavor to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, disability or age. (g) Severability. If any provision of this Agreement,except for Section 2, is determined to be directly contrary to and prohibited by law or the requirements of any federal grant or other Project funding source, then such provision shall be deemed void and the remainder of the Agreement enforced. However,it is the intent of the parties that Section 2 of this Agreement not be severable,and that if any provision of said section be determined to be contrary to law or the terms of any federal grant,then this entire Agreement shall be void. Primary Agreement for 20-068 Page 5 of 9 SECTION 1 1. STATE-IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK (a) At or prior to the time for execution of this Agreement(which may be referred to in this section as this "Contract"),Consultant(which may be referred to in this section as"Contractor")shall submit to the Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in either the"E-Verify Program"created in Public Law 208, 104" Congress,as amended and expanded in Public Law 156, 108`'Congress,as amended,that is administered by the United States Department of Homeland Security or the"Department Program"established pursuant to§8-17.5-102(5)(c)C.R.S. that is administered by the Colorado Department of Labor and Employment in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Contract. (b) Contractor shall not: (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 Contractor 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 Contractor shall have confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in either the E-Verify Program or Department Program. (II) The Contractor is prohibited from using either the E-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Contract is being performed. (ITT) If the Contractor obtains actual knowledge that a subcontractor or subconsultant performing work under this Contract knowingly employs or contracts with an illegal alien,the Contractor shall be required to: A. Notify the subconsultant and the Client's Purchasing Agent within three(3)days that the Contractor has actual knowledge that the subcontractor/subconsultant is employing or contracting with an illegal alien; and B. Terminate the subcontract with the subcontractor/subconsultant if within three(3) days of receiving the notice required pursuant to subparagraph (c)(BHA. above the subcontractor/subconsultant does not stop employing or contracting with the illegal alien;except that the Contractor shall not terminate the contract with the subcontractor/subconsultant if, during such three (3) days, the subcontractor/subconsultant provides information to establish that the subcontractor/subconsultant has not knowingly employed or contracted with an illegal alien. (IV) The Contractor is required to comply with any reasonable request by the Colorado Department of Labor and Employment (hereinafter referred to as "CDLE") made in the course of an investigation that CDLE is undertaking pursuant to its authority under§8-17.5-102(5), C.R.S. (d) Violation of this Section 12 by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination, the Contractor shall be liable for Client's actual and consequential damages. (e) As used in this Section 12, the terms "subcontractor" and "subconsultant" shall mean any subconsultant or subcontractor of Consultant rendering services within the scope of this Agreement. Primary Agreement for 20-068 Page 6 of 9 SECTION 12. PERA LIABILITY Consultant shall reimburse the City for the full amount of any employer contribution required to be paid by the City of Pueblo to the Public Employees' Retirement Association("PERA")for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. 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 BRIDGERS & PAXTON CONSULTING ENGINEERS, INC. y GLOru4.- alliK Ai By: Naomi C. Hedden, Purchasing Diror Steven M. Taylor Title: Vice President& Principal Attest.J? 'U t CLG. (1Al City Clerk [ SEAL] BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. 14/4/ I Director of Finance APPROVED AS TO FORM: City Attorney-- �� .411160, Primary Agreement for 20-068 Page 7 of 9 AGREEMENT FOR PROFESSIONAL SERVICES BY AND BETWEEN CITY OF PUEBLO AND BRIDGERS & PAXTON CONSULTING ENGINEERS, INC. THIS AGREEMENT is made and entered this 511'day of August, 2021, by and between Pueblo,a Municipal Corporation(hereinafter referred to as"Client")and Bridgers&Paxton Consulting Engineers,Inc.(hereinafter referred to as"Consultant")for Consultant to render professional mechanical engineering services for Client with respect to Bid 20-068 RFP—Mechanical Engineering Consulting Services for City Facilities,Project:Wastewater Engineering Building Sanitary Sewer Plumbing Replacement,hereinafter and related ancillary services,hereinafter referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows: SECTION 1. GENERAL AND SCOPE OF SERVICES. (a) Consultant shall satisfactorily perform the professional engineering,planning,and consulting services for the Project described in more detail in Schedule 1 attached hereto and incorporated herein by reference(the"Basic Services"). Such services shall include all usual and customary professional mechanical engineering services including any required drafting or design services incident to its work on the Project. In the event this Agreement follows the selection of Consultant by Client pursuant to a Request for Proposals or RFP,all of the requirements of that Request for Proposal or RFP are incorporated herein by reference, unless any requirement is expressly excluded in Schedule 1. (b) To the extent Consultant performs any of the Project work through subcontractors or subconsultants, Consultant shall be and remain as fully responsible for the full performance and quality of services performed by such subcontractors or subconsultants as it is for services performed directly by Consultant or Consultant's employees. (c) To the extent Consultant requires access to private property to perform its services hereunder, Consultant shall be required to make arrangements to obtain such access. However, in the event Client has already secured access for Consultant to any such property through a right of entry agreement, access agreement, letter of consent or other instrument, Consultant shall fully comply with and be subject to the terms and conditions set forth therein. A copy of any such instrument will be provided to Consultant upon request. SECTION 2. CONSULTANT'S RESPONSIBILITIES. (a) Consultant shall be responsible for the professional quality,technical accuracy and timely completion of Consultant's work, including that performed by Consultant's subconsultants and subcontractors, and including drawings, reports and other services, irrespective of Client's approval of or acquiescence in same. (b) Consultant shall be responsible,in accordance with applicable law,to Client for all loss or damage to Client caused by Consultant's negligent act or omission;except that Consultant hereby irrevocably waives and excuses Client and Client's attorneys from compliance with any requirement to obtain a certificate of review as a condition precedent to commencement of an action, including any such requirements set forth in Section 13-20-602, C.R.S. or similar statute, whether now existing or hereafter enacted. (c) Consultant shall be completely responsible for the safety of Consultant's employees in the execution of work under this Agreement and shall provide all necessary safety and protective equipment for said employees. (d) Consultant acknowledges that time is of the essence with respect to the completion of its services under this Agreement. Consultant shall coordinate with the City's Project Manager to determine an acceptable schedule to accomplish the work,with time periods for which it will commence and complete each major work item. Except to the extent the parties agree to time extensions for delays beyond the control of Consultant,Consultant shall adhere to this schedule and perform its work in a timely manner so as not to delay Client's timetable for achievement of interim tasks and final completion of Project work. Consultant further acknowledges that its schedule has accounted for all reasonably anticipated delays, including those inherent in the availability of tools,supplies, labor and utilities required for the work, the availability of information which must be obtained from any third parties,and all conditions to access to public and private facilities. Agreement for 20-068: Wastewater Engineering Building Sanitary Sewer Plumbing Replacement Page I of 10 (e) Before undertaking any work or incurring any expense which Consultant considers beyond or in addition to the Scope of Work described in Schedule 1 or otherwise contemplated by the terms of this Agreement, Consultant shall advise Client in writing that(i)Consultant considers the work beyond the scope of this Agreement,(ii) the reasons that Consultant believes the out of scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such work. Consultant shall not proceed with any out of scope or additional work until authorized in writing by Client. The compensation for such authorized work shall be negotiated,but in the event the parties fail to negotiate or are unable to agree as to compensation, then Consultant shall be compensated for its direct costs and professional time at the rates set forth in Schedule 2 attached hereto. SECTION 3. FEES FOR SERVICES; PAYMENT. (a) Client will pay to Consultant as full compensation for all services required to be performed by Consultant under this Agreement,except for services for additional work or work beyond the scope of this Agreement computed as set forth in Schedule 2. (b) Consultant shall submit periodic, but not more frequently than monthly, applications for payment, aggregating to not more than the maximum amount set forth above, for actual professional services rendered and for reimbursable expenses incurred. Applications for payment shall be submitted based upon the hourly rates and expense reimbursement provisions set forth in Schedule 2 attached hereto and shall contain appropriate documentation that such services have been performed and such expenses incurred. Thereafter,Client shall pay Consultant for the amount of the application within 45 days of the date such application is received. (c) No separate or additional payment shall be made for profit, overhead, local telephone expenses, lodging,routine photocopying,computer time,secretarial or clerical time or similar expenses unless otherwise provided and listed in Schedule 2. (d) No compensation shall be paid to Consultant for services required and expenditures incurred in correcting Consultant's mistakes or negligence. (e) Compensation for authorized work beyond the scope of this Agreement shall be governed by the provisions of Section 2(e). (f) In the event services under this Agreement are phased and to be performed in more than one fiscal year or are subject to annual appropriation,Consultant acknowledges that funds only in the amount of initial appropriation are available and it shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. SECTION 4. CLIENT'S RESPONSIBILITIES. (a) Client agrees to advise Consultant regarding Client's Project requirements and to provide all relevant information, surveys,data, and previous reports accessible to Client which Consultant may reasonably require. (b) Client shall designate a Project Representative to whom all communications from Consultant shall be directed and who shall have limited administrative authority on behalf of Client to receive and transmit information and make decisions with respect to the Project. Said representative shall not, however,have authority to bind Client as to matters of governmental policy or fiscal policy,nor to contract for additions or obligations exceeding a value which is the lesser of$5000 or 5%of the maximum contract price (c) Client shall examine all documents presented by Consultant, and render decisions pertaining thereto within a reasonable time. The Client's approval of any drawings,specifications,reports,documents or other materials or product furnished hereunder shall not in any way relieve Consultant of responsibility for the professional adequacy of its work. Agreement for 20-068: Wastewater Engineering Building Sanitary Sewer Plumbing Replacement Page 2 of 10 (d) Client shall perform its obligations and render decisions within a reasonable time under the circumstances presented. Based upon the nature of Client and its requirements, a period of 14 days shall be presumed reasonable for any decision not involving policy decision or significant financial impact, when all information reasonably necessary for Client to responsibly render a decision has been furnished. A period of 46 days shall be presumed reasonable for Client to act with respect to any matter involving policy or significant financial impact. The above periods of presumed reasonableness shall be extended where information reasonably required is not within the custody or control of Client but must be procured from others. SECTION 5. TERM AND TERMINATION (a) Term. The term of this Agreement begins on the Effective Date and ends upon successful completion of Scope of Work(as approved by authorized City representatives), unless sooner terminated in accordance with this Agreement. City reserves the right to extend the term of this Agreement in one-year increments by written acceptance of both parties. (b) Fund Appropriation. This agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, §20 of the Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this agreement,with respect to any financial obligation of City which may arise under this agreement in any fiscal year after the current year, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation,such failure shall not constitute a default by or breach of this agreement. The termination of this Agreement due to lack of funding shall be without penalty to the City. (c) Client reserves the right to terminate this Agreement and Consultant's performance hereunder,at any time upon written notice,either for cause or for convenience. Upon such termination,Consultant and its subcontractors shall cease all work and stop incurring expenses,and shall promptly deliver to Client all data,drawings,specifications, reports,plans,calculations,summaries and all other information,documents,work product and materials as Consultant may have accumulated in performing this Agreement, together with all finished work and work in progress. (d) Upon termination of this Agreement for events or reasons not the fault of Consultant,Consultant shall be paid at the rates specified in Schedule 2 for all services rendered and reasonable costs incurred to date of termination; together with any reasonable costs incurred within 10 days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Consultant or Client. Tn no event shall payment to Consultant upon termination exceed the maximum compensation provided for complete performance in Section 3(a). (e) Tn the event termination of this Agreement or Consultant's services is for breach of this Agreement by Consultant,or for other fault of Consultant including but not limited to any failure to timely proceed with work,or to pay its employees and consultants,or to perform work according to the highest professional standards,or to perform work in a manner deemed satisfactory by Client's Project Representative, then in that event, Consultant's entire right to compensation shall be limited to the lesser of(a)the reasonable value of completed work to Client or(b)payment at the rates specified in Schedule 2 for services satisfactorily performed and reimbursable expenses reasonably incurred,prior to date of termination. (f) Consultant's professional responsibility for its completed work and services shall survive any termination. SECTION 6. SITE ACCESS. (c) In the event the Project will require access to property not under the control of Client,Consultant and Consultants employees and consultants shall obtain all additional necessary approval and clearances required for access to such property. Client shall assist Consultant in obtaining access to such property at reasonable times but makes no warranty or representation whatsoever regarding access to such property. Notwithstanding the foregoing, Consultant understands and agrees that entry to some property by Consultant may be subject to compliance by Consultant with the terms and conditions of an access agreement in accordance with section 1(c)of this Agreement. Agreement for 20-068: Wastewater Engineering Building Sanitary Sewer Plumbing Replacement Page 3 of 10 SECTION 7. USE OF DOCUMENTS. (a) The Client acknowledges the Consultant's construction documents, including electronic files,as the work papers of the Consultant and the Consultant's instruments of professional service.Nevertheless,upon completion of the services and payment in full of all monies due to the Consultant, the Client shall receive ownership of the final construction documents prepared under this Agreement. The Client shall not reuse or make any modification to the construction documents without the prior written authorization of the Consultant.The Client agrees,to the fullest extent permitted by law, to defend, indemnify and hold harmless the Consultant, its officers, directors, employees and sub- consultants(collectively,Consultant)against any damages,liabilities or costs,including reasonable attorneys'fees and defense costs,arising from or allegedly arising from or in any way related to or connected with the unauthorized reuse or modification of the construction documents by the Client or any person or entity that acquires or obtains the construction documents from or through the Client without the written authorization of the Consultant. (b) Under no circumstances shall the transfer of ownership of the Consultant's drawings. specifications, electronic files or other instruments of service be deemed a sale by the Consultant, and the Consultant makes no warranties,either express or implied,of merchantability and fitness for any particular purpose,nor shall such transfer be construed or regarded as any waiver or other relinquishment of the Consultant's copyrights in any of the foregoing.full ownership of which shall remain with the Consultant, absent the Consultant's express prior written consent. SECTION 8. INSURANCE AND INDEMNITY. (a) Consultant agrees that it shall procure and will maintain during the term of this Agreement, such insurance as will protect it from claims under workers' compensation acts, claims for damages because of personal injury including bodily injury, sickness or disease or death of any of its employees or of any person other than its employees,and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom;and such insurance will provide for coverage in such amounts as set forth in subparagraph(b). (b) The minimum insurance coverage which Consultant shall obtain and keep in force is as follows: (i) Workers'Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. The Workers' Compensation Insurance policy shall contain an endorsement waiving subrogation against the Client. (ii) Commercial General Liability Insurance. The Consultant shall secure and maintain during the period of this agreement/contract and for such additional time as work on the project is being performed, Commercial General Liability Insurance issued to and covering the liability of the contractor with respect to all work performed by him and all his subcontractors under the agreement/ contract, to be written on a comprehensive policy form. This insurance shall be written in amounts not less than $1,000,000 for each occurrence and aggregate for personal injury including death and bodily injury and $1,000,000 for each occurrence and aggregate for property damage. This policy of insurance shall name the City of Pueblo, its agents, officers and employees as additional insureds. This policy shall have all necessary endorsements to provide coverage without exclusion for explosion and collapse hazards,underground property damage hazard, blanket contractual coverage,as well as Owner's and Contractor's Protective Liability(OCP)coverage. The policy shall also provide coverage for contractual liability assumed by Contractor under the provisions of the Agreement/Contract,and"Completed Operations and Projects Liability"coverage. (iii) Professional Liability Insurance with coverage of not less than $1,000,000. (iv) Comprehensive Automobile Liability Insurance. The Consultant shall procure and maintain during the period of the agreement/contract and for such additional time as work on the project is being performed, Comprehensive Automobile Liability Insurance. This insurance shall be written with limits of liability for and injury to one person in any single occurrence of not less than$350,000 and for any injury to two or more persons in any single occurrence of not less than $1,000,000. This insurance shall include uninsured/underinsured motorist coverage and shall protect the Consultant from any and all claims arising from the use both on and off the site of the project of automobiles,trucks,tractors,backhoes and similar equipment whether owned, leased, hired or used by Consultant. Agreement for 20-068: Wastewater Engineering Building Sanitary Sewer Plumbing Replacement Page 4 of 10 (c) Consultant agrees to hold harmless,defend and indemnify Client from and against any liability to third parties, arising out of negligent acts or omissions of Consultant, its employees, subcontractors and consultants. SECTION 9. SUBCONTRACTS. (a) Client acknowledges that Consultant is the prime contractor and the only party with whom Client has a contractual relationship under this Agreement. To the extent Consultant performs any Project activities through subconsultants or subcontractors,Consultant shall contractually bind each of its subconsultants and subcontractors by subcontract agreement to all of the terms of this Agreement which are for the benefit of Client,and Client shall be a third party beneficiary of those subcontract provisions. (b) Consultant shall indemnify and defend Client from all claims and demands for payment for services provided by subcontractors of Consultant. (c) Consultant acknowledges that,due to the nature of the services to be provided under this Agreement. the Client has a substantial interest in the personnel and consultants to whom Consultant assigns principal responsibility for services performed under this Agreement. Consequently, Consultant represents that it has selected and intends to employ or assign the key personnel and consultants identi tied in its proposal submitted to Client prior to execution of this Agreement to induce Client to enter this Agreement. Consultant shall not change such consultants or key personnel except after giving notice of a proposed change to Client and receiving Client's consent thereto. Consultant shall not assign or reassign Project work to any person to whom Client has reasonable objection. SECTION 10. MISCELLANEOUS. (a) Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Consultant or Client by the other party shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service, when deposited in the United States mail, first-class postage prepaid, addressed to the Client, City of Pueblo, Attention: Director of Public Works, 211 E. D Street, Pueblo, CO 81003, or to Consultant, Bridgers & Paxton Consulting Engineers,Inc.at 1365 Garden of the Gods Road,Suite 260,Colorado Springs,CO 80907. 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. Note: For this project all invoices shall be emailed to mluceroin pueblo.us of the Wastewater Department. (Revision to Section 4.19 of the RFP applies to this project only.) (b) Entire Agreement. This instrument contains the entire agreement between Consultant and Client respecting the Project,and any other written or oral agreement or representation respecting the Project or the duties of either Client or Consultant in relation thereto not expressly set forth in this instrument and its attachments is null and void.In the case of any conflict between the terms of this Agreement for Professional Services and terms of Schedule 1 or any other attachment hereto, the terms of this Agreement shall govern. (c) Successors and Assigns. This Agreement shall be binding on the parties hereto and on their successors and assigns; provided, however, neither this Agreement, nor any part thereof, nor any moneys due or to become due hereunder to Consultant may be assigned by it without the written consent of Client,which consent may be withheld in Client's sole and absolute discretion. Any assignment or attempted assignment in violation of this subsection shall be void. (d) Amendments. No amendment to this Agreement shall be made nor be enforceable unless made by written amendment signed by an authorized representative of Consultant and by Client in accordance with the requirements of Section 4(b)of this Agreement or upon authorization of Client's governing board. (e) Choice of Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado. Any unresolved dispute arising from or concerning any breach of this Agreement shall be decided in a state court of competent jurisdiction located in Pueblo, Colorado. (f) Equal Employment Opportunity. In connection with the performance of this Agreement, neither Consultant nor its consultants shall discriminate against any employee or applicant for employment because of race, Agreement for 20-068: Wastewater Engineering Building Sanitary Sewer Plumbing Replacement Page 5 of 10 color,religion,sex,national origin,disability or age. Consultant shall endeavor to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, disability or age. (g) Severability. If any provision of this Agreement, except for Section 2, is determined to be directly contrary to and prohibited by law or the requirements of any federal grant or other Project funding source, then such provision shall be deemed void and the remainder of the Agreement enforced. However,it is the intent of the parties that Section 2 of this Agreement not be severable,and that if any provision of said section be determined to be contrary to law or the terms of any federal grant, then this entire Agreement shall be void. SECTION 11. STATE-IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK (a) At or prior to the time for execution of this Agreement(which may be referred to in this section as this "Contract"),Consultant(which may be referred to in this section as"Contractor")shall submit to the Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in either the"E-Verify Program"created in Public Law 208, 104`' Congress,as amended and expanded in Public Law 156, 108`'Congress,as amended,that is administered by the United States Department of Homeland Security or the"Department Program"established pursuant to§8-17.5-102(5)(c)C.R.S. that is administered by the Colorado Department of Labor and Employment in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Contract. (b) Contractor shall not: (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 Contractor 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 Contractor shall have confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in either the E-Verify Program or Department Program. (II) The Contractor is prohibited from using either the E-Verity Program or Department Program procedures to undertake pre-employment screening of job applicants while this Contract is being performed. (III) Tithe Contractor obtains actual knowledge that a subcontractor or subconsultant performing work under this Contract knowingly employs or contracts with an illegal alien,the Contractor shall be required to: A. Notify the subconsultant and the Client's Purchasing Agent within three(3)days that the Contractor has actual knowledge that the subcontractor/subconsultant is employing or contracting with an illegal alien; and B. Terminate the subcontract with the subcontractor/subconsultant if within three(3) days of receiving the notice required pursuant to subparagraph (c)(III)A. above the subcontractor/subconsultant does not stop employing or contracting with the illegal alien;except that the Contractor shall not terminate the contract with the subcontractor/subconsultant if, during such three (3) days, the subcontractor/subconsultant provides information to establish that the subcontractor/subconsultant has not knowingly employed or contracted with an illegal alien. (IV) The Contractor is required to comply with any reasonable request by the Colorado Department of Labor and Employment (hereinafter referred to as "CDLE") made in the course of an investigation that CDLE is undertaking pursuant to its authority under§8-17.5-102(5), C.R.S. (d) Violation of this Section 12 by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination, the Contractor shall be liable for Client's actual and consequential damages. Agreement for 20-068: Wastewater Engineering Building Sanitary Sewer Plumbing Replacement Page 6 of 10 (e) As used in this Section 12, the terms "subcontractor" and "subconsultant" shall mean any subconsultant or subcontractor of Consultant rendering services within the scope of this Agreement. SECTION 12. PERA LIABILITY Consultant shall reimburse the City for the full amount of any employer contribution required to be paid by the City of Pueblo to the Public Employees' Retirement Association("PERA")for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. 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 BRIDGERS & PAXTON CONSULTING ENGINEERS. INC. By_„ � J 1'f` -' t.G �� By: rr ' aomi Redden, Purchasing Director Steven M. Taylor, Vice President & Principal 4� Attest: S'4 / rO/i% 'i City Cl� [ SEAL] BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. ir(tor of Finance APPROVED AS TO FORM: 4_ ,/t.Af\Ld City Attorney Agreement for 20-068: Wastewater Engineering Building Sanitary Sewer Plumbing Replacement Page 7 of I0