HomeMy WebLinkAbout14705RESOLUTION NO. 14705
A RESOLUTION AWARDING AN AGREEMENT FOR
PROFESSIONAL DESIGN SERVICES TO SHORT ELLIOTT
HENDRICKSON, INC. A COLROADO CORPORATION, FOR
PROJECT NO. 21-049 ENGINEERING DESIGN SERVICES FOR
IMPROVEMENTS ON SOUTH PRAIRIE AVENUE AND
AUTHORIZING THE PURCHASING AGENT TO EXECUTE SAME
WHEREAS, proposals for Project No. 21-049 Engineering Design services for
Improvements on South Prairie Avenue, have been received and examined;
WHEREAS, the proposal of Short Elliot Hendrickson, Inc., of Pueblo, Colorado 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.
City Council authorizes Project No. 21-049 Engineering Design services for Improvements
on South Prairie Avenue to be performed, and contract for said project is hereby awarded to Short
Elliot Hendrickson, Inc., of Pueblo, Colorado, in the amount of $199,976.00.
SECTION 2.
Funds for said Agreement shall be HU1901- ADA Curb Ramp Replacement.
SECTION 3.
The Purchasing Agent is hereby authorized to execute said contract on behalf of Pueblo,
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 September 13, 2021
BY: Ed Brown
MEMBER OF CITY COUNCIL
APPROVED:
PRESIDENT OF CITY COUNCIL
ATTESTED BY:
CITY CLERK
City Clerk’s Office Item # M-9
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: September 13, 2021
TO: President Lawrence W. Atencio and Members of City Council
CC: Nicholas A. Gradisar, Mayor
VIA: Marisa Stoller, City Clerk
FROM: Andrew E. Hayes, P.E., Acting Director of Public Works
SUBJECT: A RESOLUTION AWARDING AN AGREEMENT FOR PROFESSIONAL DESIGN
SERVICES TO SHORT ELLIOTT HENDRICKSON, INC. A COLROADO
CORPORATION, FOR PROJECT NO. 21-049 ENGINEERING DESIGN
SERVICES FOR IMPROVEMENTS ON SOUTH PRAIRIE AVENUE AND
AUTHORIZING THE PURCHASING AGENT TO EXECUTE SAME
SUMMARY:
This Resolution awards an Agreement for Professional Design Services to Short Elliott
Hendrickson, Inc. for engineering design services for improvements on South Prairie Avenue.
PREVIOUS COUNCIL ACTION:
Not applicable to this Resolution.
BACKGROUND:
In July, 2020, the City of Pueblo solicited Requests for Proposals for engineering design services
for South Prairie Avenue improvements to sidewalk, curb and gutter, and ADA curb-ramps from
Pueblo Boulevard to Northern Avenue.
FINANCIAL IMPLICATIONS:
Funding in the amount of $199,976.00 will be paid from HU1901 – ADA Ramp Replacement.
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 South Prairie Avenue
improvements.
RECOMMENDATION:
Approval of the Resolution.
Attachments:
Proposed Resolution
Agreement for Professional Services
AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES
BY AND BETWEEN
CITY OF PUEBLO
AND
SHORT-ELLIOTT-HENDRICKSON, INCORPORATED
THIS AGREEMENT made and entered this 14th day of September,2021 by and between the City
of Pueblo, a Municipal Corporation (hereinafter "Owner") and Short-Elliott-Hendrickson, Incorporated a
registered Minnesota Corporation authorized to do business in the State of Colorado, a professional
consulting/engineering firm (hereinafter "Consultant") for Consultant to render certain professional
planning, design, engineering and related services for Owner in connection with Bid 21-049 RFP -
Engineering Design Services for Improvements on South Prairie Avenue (hereinafter referred to as the
"Project"). In consideration of the mutual covenants hereinafter set forth,the parties agree as follows:
SECTION 1. GENERAL
1.1 Consultant shall perform professional planning and design services for all phases of
Project indicated below by mark placed in the appropriate box or boxes with the ordinary degree of skill
and care that would be used by other reasonably competent practitioners of the same discipline under
similar circumstances in the same location:
[n/a] - Study and Report Phase
[ X] - Preliminary Design (Schematic) Phase
[ X ] - Final Design Phase
[n/a] - Construction Documents& Bidding Phase
[n/a] - Construction 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 consulting/engineering
services 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 engineering,surveying,and geotechnical services incident to its work on the Project.
1.2 In performing the professional services, Consultant shall complete the work items
described generally in Schedule 1 — "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 consulting/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.
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1.5 Any architect services provided under this Agreement shall be performed under the
direction and supervision of an architect licensed to practice architecture in the state of Colorado.
SECTION 2. CONSULTING 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 one (1) hard copy and one (1) electronic copy of the Report and present
and review it in person with Owner. Owner may request additional copies as needed for no
additional charge.
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.
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(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.
(0 Consultant shall furnish one (1) hard copy and one (1) electronic copy of each
above referenced submittal document to Owner for Owner's use and shall review same in person
with Owner. Owner may request additional copies as needed for no additional charge.
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 therefor. Such plans and
Specifications shall comply with all applicable building codes and requirements of regulatory
agencies having any approval authority. Final design, including Drawings and Specifications,shall
also comply with ADA Accessibility Guidelines (ADAAG) Manual developed by the U. S.
Architectural and Transportation Barriers Board (1998) or ADA Standards for Accessible Design
published at 28 C.F.R. Part 36,Appendix A,whichever is applicable. Consultant shall include an
attest statement on each record drawing sheet of final plan drawings that certifies compliance
with either the ADAAG Manual or 28 CFR ' 36 Standards.
(b) Make reasonable revisions to the Drawings and Specifications requested by
Owner, informing the Owner of any change in probable construction costs as a result of such
revisions.
(c) Provide technical criteria, written descriptions and design data for Owner's use,
and disclose any significant risks and advantages/disadvantages inherent in or presented by design
choices.
(d) Based upon Consultant's customary and usual 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 one (I) hard copy and one (1) electronic copy of each
above referenced submittal document to Owner for Owner's use and shall review same in person
with Owner. Owner may request additional copies as needed for no additional charge.
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.
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(b) After review and comment by Owner, prepare and submit all deliverables
identified in Schedule 1 to this Agreement, final forms of contract agreement, general and special
conditions, Drawings, specifications, bid forms, invitations to bid, information for bidders, and
forms of warranty, together with any Addenda which may be required or appropriate to correct
errors, clarify Drawings or Specifications or advise of changes. One (1) hard copy and one (1)
electronic copy of these final bid documents shall be furnished to Owner. Unless otherwise
specified in Schedule 1. A copy of all contract documents and drawings shall also be submitted to
Owner in Microsoft Word and AutoCAD (2006 or later version) format on electronic media.
Owner may request additional copies as needed at for no additional charge.
(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 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 Schedule 1 —"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.
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(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.
(I) 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
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 generally accepted
standard of care applicable to the type of engineering and architectural services provided,
commensurate with the size, scope, location, 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 and defend Owner from any
and all claims, suits, loss or injury to Consultant's employees.
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(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 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 Schedule 4 -
"Identification of Personnel, Subcontractors and Task Responsibility", attached hereto for the
Project assignments and areas of responsibility stated therein. Within 10 days of execution of this
Agreement, Owner shall have the right to object in writing to employment on the Project of any
such key person,consultant or assignment of principal responsibility,in which case 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 five (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 timetable 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 Schedule 2 - "Fee
Schedule".
2.7 Information Regarding Federal Assistance For Construction of This Project. The
construction project will be partially funded through a Multi-Modal Transportation Fund via CDOT (all
designs must meet CDOT requirements).
SECTION 3. OWNER'S RESPONSIBILITIES
3.1 Owner shall:
(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.
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(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 Schedule I —"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$$199,976.00 in the aggregate,and not to exceed those maximum
amounts set forth in Schedule 2 - "Fee Schedule" and computed in accordance with this Section. In the
event compensation for services is set forth in Schedule 2 as to each phase of work indicated in Section 1.1
of this Agreement, the maximum amount of compensation for any phase shall not exceed the amount
specified in Schedule 2 for such phase.
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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.
5.3 The rates of compensation for service and for reimbursable expenses to be used with
periodic and final payment applications shall be those set forth in Schedule 2 - "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 Schedule 2 - "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. TERM AND TERMINATION
6.1 Term. The term of this Agreement begins on the Effective Date and ends on June 8, 2022
as shown on Schedule 3 — "Project Work Schedule", unless sooner terminated in accordance with this
Agreement. Upon completion of the work, City reserves the right to extend the term of this Agreement for
additional work on the project as needed in one-year increments with an equitable increase in hourly rates
by written acceptance of both parties.
6.2 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.
6.3 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 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.
6.4 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
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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).
6.5 In the event termination of this Agreement for 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 usual and
customary 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.
6.6 Consultant's professional responsibility for its completed work and services shall survive
any termination.
SECTION 7. GENERAL PROVISIONS
7.1 (a) Ownership of Documents. All designs, Drawings, Specifications, technical data,
and other documents or instruments procured or produced by the 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. In the event (i) Owner terminates the services of Consultant prior to
completion of final design, and thereafter Owner completes the design and construction of the
Project without review and adaptation of the design, Drawings and Specifications by Consultant,
or(ii) Owner terminates the services of Consultant after completion of final design and the Owner
completes the construction of the Project with modifications to the plans, Drawings and
Specifications prepared by Consultant,Owner agrees that it will hold Consultant harmless from all
loss, claims,and injury attributable to the completion of design by others or to such modifications
from Consultant's final design, Drawings and Specifications.
(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) Consultant 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
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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.
(ii) Comprehensive General and Automobile Liability Insurance with limits
not less than One Million Dollars ($1,000,000.00) per person and occurrence for personal
injury, including but not limited to death and bodily injury, One Million Dollars
($1,000,000.00) 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 amount of$2,000,000.00, and with a
deductible not exceeding$200,000.00.
(c) Consultant agrees to hold harmless,defend and indemnify Owner from and against
any liability to third parties, arising out of negligent acts, errors or omissions of 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 be deemed duly served and given when personally delivered to the party to whom it
is directed, or in lieu of such personal service when deposited in the United States mail, first-class postage
prepaid, addressed to the Owner, Attention: Director of Public Works, Department of Public Works, 211
E. "D" Street, Pueblo, Colorado, 81003, or to the Consultant at Short-Elliott-Hendrickson, Incorporated,
Attn: Charles R. Gustafson, Principal-In-Charge, Pueblo, CO, 81003-3138_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 Schedule or attachment to this Agreement,the provision in this Agreement shall control
and supersede the conflicting provision in the Schedule 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.
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7.7 Choice of Law. This Agreement shall be governed and interpreted in accordance with the
laws of the State of Colorado. Venue for any action arising under this Agreement or for the enforcement
of this Agreement shall be in a state court with jurisdiction located in Pueblo County, 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.
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.
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 no 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 terms 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.
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SECTION 9. APPENDICES
9.1 The following Schedules are attached to and made a part of this Agreement:
Schedule 1 - "Scope of Services" consisting of one(1) page.
Schedule 2 - "Fee Schedule" consisting of three (3) pages.
Schedule 3 - "Project Work Schedule" consisting of one(1) page.
Schedule 4 - "identification of Personnel, Subcontractors and Task Responsibility"
consisting of six(6)pages.
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 11. 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, 104t Congress, as amended and expanded in Public Law 156,
108t 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:
(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 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.
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(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
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 termination. 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.
(f) 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 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.
(Signature page follows)
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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 Short-Elliott-Hendrickson, Incorporated
Bynten141:1LBy: divi, 7-—
Naomi C. Hedden Charles R. G : afson
Director of Purchasing Principal-In-Charge
,64 i
°'" c tfi Clerk
r ''/ f. Ay li
BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE.
Director of Finance J U
APPROVED AS TO FORM:
City Attorney
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