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HomeMy WebLinkAbout10108ORDINANCE NO. 10108 AN ORDINANCE ESTABLISHING PROJECT AP2201 – SNOW REMOVAL EQUIPMENT (SRE) ACQUISITION, BUDGETING AND APPROPRIATING $21,355 TO PROJECT AP2201, APPROVING A CONTRACT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND DIBBLE AND ASSOCIATES CONSULTING ENGINEERS, INC., AN ARIZONA CORPORATION, TO CONDUCT THE ACQUISITION PER FAA REQUIREMENTS, AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, a need exists for new snow removal equipment at the Pueblo Memorial Airport; and, WHEREAS, professional engineering services are required for the acquisition and for FAA approved equipment; and, WHEREAS, Capital Project AP2201 – Snow Removal Equipment (SRE) Acquisition needs to be established and funds budgeted and appropriated; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Project AP2201- Snow Removal Equipment (SRE) Acquisition is hereby established. SECTION 2. Funds in the amount of $21,355 are hereby transferred from the Passenger Facility Charges Fund and budgeted and appropriated to Project AP2201. SECTION 3. The Agreement for Professional Engineering Services (“Agreement”) between the City of Pueblo, a Municipal Corporation, and Dibble and Associates Consulting Engineers, Inc., an Arizona Corporation, dba Dibble Engineering, a copy of which is attached hereto and incorporated herein by this reference, and having been approved as to form by the City Attorney, is hereby approved. SECTION 4. The Mayor is authorized to execute and deliver the Agreement in the name of the City, and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 5. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance to implement the policies and procedures described herein. SECTION 6. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on January 24, 2021 . Final adoption of Ordinance by City Council on February 14, 2022 . President of City Council Action by the Mayor: ☒ Approved on February 16, 2022 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-1 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: January 24, 2022 TO: President Heather Graham and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Greg Pedroza, Director of Aviation SUBJECT: AN ORDINANCE ESTABLISHING PROJECT AP2201 – SNOW REMOVAL EQUIPMENT (SRE) ACQUISITION, BUDGETING AND APPROPRIATING $21,355 TO PROJECT AP2201, APPROVING A CONTRACT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND DIBBLE AND ASSOCIATES CONSULTING ENGINEERS, INC., AN ARIZONA CORPORATION, TO CONDUCT THE ACQUISITION PER FAA REQUIREMENTS, AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: This Ordinance establishes Project AP2201, appropriates $21,355 to said project, and to accommodate Federal Aviation Administration (“FAA”) requirements approves a contract for professional engineering and acquisition services regarding snow removal equipment for taxiways and runways. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: Through processes outlined by the FAA and in accordance with the Capital Improvement Project (CIP) schedule, the Pueblo Memorial Airport is in need of a new piece of Snow Removal Equipment (SRE) to continue to provide safe and efficient airport operations for all users. The FAA has designated Entitlement Funds from passenger enplanements for this purchase. FINANCIAL IMPLICATIONS: The City must fund the contract for acquisition services upfront with an expected grant to come. The funds are available in the Passenger Facility Charge Fund to be transferred to Project AP2201. It is anticipated that 95% of these funds will be reimbursed by the Federal Aviation Administration through an AIP grant. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this funding and agreement are not approved, the acquisition of new snow removal equipment will not take place. RECOMMENDATION: Approve the Ordinance. Attachments: Acquisition Contract with Appendices and Proposal FAA Engineering Fee Approval STANDARD FORM OF AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES THIS AGREEMENT made and entered this 14 day of February , 2022 ("Effective Date") by and between the City of Pueblo, a Municipal Corporation (hereinafter "Owner"), and Dibble and Associates Consulting Engineers, Inc., an Arizona Corporation, doing business as Dibble Engineering, a professional engineering firm (hereinafter "Engineer"), for Engineer to render certain professional planning, design, engineering, construction administration, and related services for Owner in connection with Project No. AP2201 , Project Name: Acquisition of Snow Removal Equipment, hereinafter referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows: SECTION 1. GENERAL. 1.1 Engineer shall satisfactorily perform professional engineering services for all phases of Project indicated below by mark placed in the appropriate box or boxes: [ ] - Study and Report Phase [X] - Preliminary Design (Schematic)Phase [X] - Final Design Phase • [X] - Construction Documents&Bidding Phase [ ] - Construction Phase Upon completion of any phase,Engineer shall not proceed with work on the next phase, if any,until authorized in writing by Owner to proceed therewith. Such services shall include all usual and customary professional engineering services and the furnishing (directly or through its professional consultants) of customary and usual civil, structural, mechanical, electrical engineering, environmental, planning, and acquisition services. Engineer shall also provide any landscape engineering, surveying and geotechnical services incident to its work on the Project. 1.2 In performing the professional services, Engineer shall complete the work items described generally in Appendix A—Scope of Services and the items identified in Section 2 of this Agreement which are applicable to each phase for which Engineer is to render professional services. 1.3 Professional engineering services (whether furnished directly or through a professional consultant subcontract) shall be performed under the direction and supervision of a registered engineer in good standing and duly licensed to practice in the State of Colorado. Reproductions of final drawings for construction produced under this Agreement shall be the same as at least one record set which shall be furnished to Owner and which shall be signed by and bear the seal of such registered engineer. 1.4 Surveying work included within or reasonably contemplated by this Agreement shall be performed under the direction and supervision of a registered Professional Land Surveyor in good standing and duly licensed to practice in the State of Colorado. All plats and surveys produced under this Agreement shall be signed by and bear the seal of said Professional Land Surveyor. 1.5 Any architect services provided under this Agreement shall be performed under the direction and supervision of an architect licensed to practice architecture in the state of Colorado. (Agreement for Professional Engineering Services -CA Revised and Apprd 01/7'2022 - Snow Removal Equipment Acquisition) - 1 - SECTION 2. ENGINEERING SERVICES. 2.1 Study and Report Phase. If Engineer is to provide professional services with respect to the Project during the Study and Report Phase, Engineer shall: (a) Consult with Owner to determine his requirements for the Project and review available data. (b) Advise Owner as to the necessity of his providing or obtaining from others data or services of the types described in paragraph 2.2(c), and assist Owner in obtaining any such services. (c) Provide special analyses of Owner's needs,planning surveys, site evaluations, and comparative studies of prospective sites and solutions. (d) Identify and analyze requirements of governmental authorities and regulatory agencies involved in approval or permitting any aspect of Project. (e) Provide general economic analysis of Owner's requirements applicable to various alternatives. (f) Prepare a Report with appropriate exhibits indicating clearly the considerations involved and the alternative solutions available to Owner, and setting forth Engineer's findings and recommendations with opinions of probable costs. (g) Furnish two (2) copies of the Report and present and review it in person with Owner. 2.2 Preliminary Design(Schematic)Phase. If Engineer is to provide professional services with respect to the Project during the Preliminary Design Phase, Engineer shall: (a) Consult with Owner and determine the general design concept and Project requirements based upon information furnished by Owner as well as any study or Report on the Project. (b) Prepare and submit to Owner preliminary design documents consisting of final design criteria,preliminary drawings,an outline of specifications,and written descriptions of all significant features of Project. (c) Prepare and submit to Owner a requirements checklist of any subsurface investigation, additional data, permits, or other information and requirements which is anticipated will be necessary for the design or construction of Project. (d) Provide written disclosure to Owner of significant design assumptions and design risks and advantages/disadvantages inherent in or presented by design alternatives, and make recommendations to Owner based thereon. (e) Prepare and submit to Owner a preliminary cost estimate for the Project including construction cost,contingencies,professional compensation,consultant fees,costs of land and rights of way, compensation for damages and finance costs, if any. (f) Engineer shall furnish two(2)copies of each above referenced submittal document to Owner for Owner's use, and shall review same in person with Owner. 2.3 Final Design Phase. If Engineer is to provide professional services with respect to the (Agreement for Professional Engineering Services-CA Revised and Apprd O1;72022 - Snow Removal Equipment Acquisition) - 2 - Project during the Final Design Phase, Engineer shall: (a) After consultation with the Owner, receipt of Owner's selection of any design options and review of the Preliminary Design Documents, if any, prepare and submit to Owner final Drawings showing the scope, extent, and character of the work to be performed by contractors, and Specifications describing such work and the requirements therefor. Such plans and Specifications shall comply with all applicable codes and requirements of regulatory agencies having any approval authority, including but not limited to any requirements of the Federal Aviation Administration. (b) Make reasonable revisions to the Drawings and Specifications requested by Owner, informing the Owner of any change in probable construction costs as a result of such revisions. (c) Provide technical criteria,written descriptions and design data for Owner's use,and disclose any significant risks and advantages/disadvantages inherent in or presented by design choices. (d) Based upon Engineer's best professional judgment,prepare and submit to Owner a current detailed cost estimate for the Project including acquisition cost, contingencies, professional compensation,consultant fees, damages, and finance costs, if any. (e) Engineer shall furnish two(2)copies of each above referenced submittal document to Owner for Owner's use and shall review same in person with Owner. 2.4 Construction Documents & Bidding Phase. If Engineer is to provide professional services with respect to the Project during the Construction Documents& Bidding Phase, Engineer shall: (a) Prepare and submit to Owner draft forms of contract agreement,general and special conditions,bid forms invitations to bid,information for bidders,forms of warranty and including any special requirements imposed upon such contracts by any federal or other funding source and by any regulatory agency. In preparing such draft forms,Engineer shall consider and incorporate,to the extent both advisable and feasible, owner's standard forms of agreement, warranty, payment and performance bonds, general conditions and selected specifications. (b) After review and comment by Owner,prepare and submit all deliverables identified in Appendix A to this Agreement, final forms of contract agreement, general and special conditions, Drawings, specifications, bid forms, invitations to bid, information for bidders, and forms of warranty, together with any Addenda which may be required or appropriate to correct errors, clarify Drawings or Specifications or advise of changes.Two(2)copies of these final bid documents shall be furnished to Owner. Unless otherwise specified in Appendix A, a copy of all contract documents and drawings shall also be submitted to Owner in Microsoft Word and AutoCAD (2018 or later version)format on electronic media. (c) Make recommendations to Owner concerning the need for prequalification of equipment, vendors or bidders, and, if requested by Owner, incorporate prequalification requirements in final bid and construction contract documents. (d) Attend a pre-bid conference with bidders to discuss Project requirements and receive requests for clarification, if any,to be answered by Engineer in writing to all plan holders. (e) Consult with and make recommendations to Owner concerning: acceptability of bidders,subcontractors,suppliers,materials,equipment, suitability of proposed"or equals",number of bids and any other matter involved in consideration and review of bids and bidders upon which Owner may reasonably request Engineer's advice. (f) Perform all project closeout and miscellaneous scope of work items,to include,but (Agreement for Professional Engineering Services CA Revised and Apprd 01,7-2022— Snow Removal Equipment Acquisition) - 3 - not limited to,preparing pay requests for consultant design and bidding fees and inspecting any acquisitions prior to acceptance by Owner. 2.5 Construction Phase. If Engineer is to provide professional services with respect to the Project during the Construction Phase, after award by the Owner of a general contract or contracts for construction of the Project, Engineer shall: (a) Perform all duties and functions to be performed by Engineer under the teens of the construction contract. (b) Visit the Project site, perform observations as to the progress and quality of the work and advise the Owner as to same. The frequency and level of observation shall be commensurate with the nature of the work and size of the Project, except that any specific provisions set forth in Appendix A- Scope of Services concerning the level of observation shall determine Engineer's obligation concerning level of observation. (c) Make determinations as to whether the work is proceeding in accordance and compliance with the construction contract documents. (d) Promptly advise the Owner in writing of any omissions, substitutions, defects or deficiencies noted in the work of any contractor, subcontractor, supplier or vendor on the Project. (e) Reject any work on the Project that does not conform to the contract documents. (f) On request of the Owner, the construction contractor or any subcontractor on the Project, issue written interpretations as to the Drawings and Specifications and requirements of the construction work. (g) Review shop drawings,samples,product data and other submittals of the contractor for conformance with the design concept of Project and compliance with the Drawings, Specifications and all other contract documents, and indicate to Contractor and Owner with respect thereto, any exceptions noted, or modification or resubmittals required. (h) Review all applications of Contractor for payment and in connection with same, issue certificates for payment to the Owner for such amounts as are properly payable under the teens of the construction contract. Each such certificate shall constitute Engineer's representation to Owner that he has inspected the Project and that to the best of his knowledge,the work for which payment has been sought has been completed by Contractor in accordance with the Drawings, Specifications and other contract documents. (i) Subject to written concurrence by Owner, promptly render a written recommendation to Owner concerning all proposed substitutions of material and equipment. (j) Draft, for Owner's consideration, and offer recommendations upon, all proposed change orders and contract modifications. (k) On application for final payment by the Contractor, make a final inspection of the Project, assembling and delivering to the Owner any written guaranties, instructions manuals, as-built drawings, diagrams, and charts required by the contract documents, and issuing a certificate of final completion of the Project. (1) The Engineer shall, if so provided in the construction contract, be the interpreter of the construction documents and arbiter of claims and disputes thereunder. Upon written request of the (Agreement for Professional Engineering Services—CA Revised and Apprd 01/7/2022- Snow Removal Equipment Acquisition) -4 - Owner or Contractor, the Engineer shall promptly make written interpretations of the contract documents and render written decisions on all claims, disputes, and other matters relating to the execution or progress of the work on the Project. The interpretations and decisions of the Engineer shall be final and binding on the Contractor and Owner, unless the Director of Public Works of the Owner shall, within seven calendar days after receipt of the Engineer's interpretation or decision, file his written objections thereto with the Architect and Contractor. 2.6 Additional Responsibilities. This paragraph applies to all phases of Engineer's work. (a) Engineer shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all of Engineer's work, including that performed by Engineer's consultants, and including designs, Drawings, Specifications, reports, acquisitions, and other services, irrespective of Owner's approval or acquiescence in sante. Engineer shall,without additional compensation, correct or revise any errors, omissions,or other deficiencies in the work. (b) Engineer shall be responsible, in accordance with applicable law, to Owner for all loss or damage to Owner caused by Engineer's negligent act or omission; and Engineer hereby irrevocably waives and excuses Owner and its attorneys from compliance with any requirement to obtain a certificate of review as a condition precedent to commencement of an action,including any such requirements set forth in Section 13-20-602, C.R.S., or similar statute. (c) Engineer's professional responsibility shall comply with the standard of care applicable to the type of engineering, architectural, and acquisition services provided, commensurate with the size, scope, and nature of the Project. (d) Engineer shall be completely responsible for the safety of Engineer's employees, subcontractors, and consultants in the execution of work under this Agreement, shall provide all necessary safety equipment for said employees,subcontractors,and consultants and shall hold harmless and indemnify and defend Owner from any and all claims, suits, loss or injury to Engineer's employees, subcontractors, and consultants. (e) Engineer acknowledges that, due to the nature of acquisition, engineering, and related professional services and the impact of same on the Project, the Owner has a substantial interest in the personnel and consultants to whom Engineer assigns principal responsibility for services perfonned under this Agreement. Consequently, Engineer represents that Engineer has selected and intends to employ or assign the key personnel and consultants identified in Appendix C - "Identification of Personnel, Subcontractors and Task Responsibility," attached hereto for the Project assignments and areas of responsibility stated therein. Within 10 days of execution of this Agreement, Owner shall have the right to object in writing to employment on the Project of any such key person,consultant or assignment of principal responsibility, in which case Engineer will employ alternate personnel for such function or reassign such responsibility to another to whom Owner has no reasonable objection. Thereafter, Engineer shall not assign or reassign Project work to any person to whom Owner has reasonable objection. Within five(5) days of execution of this Agreement, Engineer shall designate in writing a Project representative who shall have complete authority to bind Engineer, and to whom Owner should address communications. (f) Promptly after execution of this Agreement and upon receipt of authorization from Owner to proceed, Engineer shall submit to Owner for approval a schedule showing the order in which Engineer proposes to accomplish his work,with dates on which he will commence and complete each major work item. The schedule shall provide for performance of the work in a timely manner so as to not delay Owner's time table for achievement of interim tasks and final completion of Project work,provided however, the Engineer will not be responsible for delays beyond his control. (Agreement for Professional Engineering Services CA Revised and Apprd 01/7/2022- Snow Removal Equipment Acquisition) - 5 - (g) Before undertaking any work which Engineer considers beyond or in addition to the scope of work and services which Engineer has contractually agreed to perform under the terms of this Agreement, Engineer shall advise Owner in writing (i)that Engineer considers the work beyond the scope of this Agreement, (ii) the reasons the Engineer believes the out of scope or additional work should be performed, and(iii)a reasonable estimate of the cost of such work. Engineer shall not proceed with such out of scope or additional work until authorized in writing by Owner. The compensation for such authorized work shall be negotiated, but in the event the parties fail to negotiate or are unable to agree as to compensation,then Engineer shall be compensated for his direct costs and professional time at the rates set forth in Appendix B - "Fee Schedule,"if any are set forth. 2.7 Requirements Where Federal Assistance Provided. (a) Engineer understands that Owner will be funding the Project in part or in whole by grants or loans from the Department of Transportation, Federal Aviation Administration (the "Federal Agency") and the Colorado Department of Transportation (the"State Agency"). Engineer agrees it is subject to and shall comply with all applicable grant or loan conditions and the regulations of the Federal Agency and State Agency which apply to the work under this Agreement, whether referenced in Appendix A or not. All applicable loan or grant conditions and regulations of the Federal Agency and State Agency are incorporated into this Agreement by reference. (b) Owner shall pay Engineer for work completed in accordance with the terms of this Agreement. Engineer understands and accepts that Owner is seeking reimbursement for the Project through applicable Federal and State loans or grants. Should the applicable Federal and State Agencies indicate that loans or grants shall not be granted or approved by the Agency,performance under this Agreement shall be placed on hold until such time as the funds are granted and approved, except that no such extension shall continue past the expiration of the initial term of the master agreement approved through City of Pueblo Resolution No. 13785. Should Owner determine in its sole discretion that grant or approval of the required funds is impossible or unlikely, this Agreement shall terminate immediately upon notice from Owner and Owner shall not be liable for any cost or fee under this Agreement. SECTION 3. OWNER'S RESPONSIBILITIES 3.1 Owner shall: (a) Designate a representative to whom all communications from Engineer shall be directed and who shall have limited administrative authority on behalf of Owner to receive and transmit information and make decisions with respect to Project. Said representative shall not, however, have authority to bind Owner as to matters of legislative or fiscal policy. (b) Advise Engineer of Owner's Project requirements including: objective, project criteria, use and performance requirements, special considerations, physical limitations, financial constraints,and required construction contract provisions and standards. (c) Provide Engineer with available information pertinent to the Project including any previous reports,studies,or data possessed by Owner which relates to design or construction of the Project. (d) Assist in arranging for Engineer to have access to enter private and public property as required for Engineer to perform his services. (e) Examine all studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by Engineer,and render written decisions pertaining thereto within a reasonable time. The Owner's approval of Drawings, design, Specifications, reports, and incidental engineering work (Agreement for Professional Engineering Services—CA Revised and Apprd 01!7/2022 Snow Removal Equipment Acquisition) -6 - or materials furnished hereunder shall not in any way relieve the Engineer of responsibility for the professional adequacy of his work. The Owner's review, approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. (f) Upon advice of the necessity to do so from Engineer,obtain required approvals and permits for the Project. The Engineer shall provide all supportive documents and exhibits necessary for obtaining said approvals and permits. (g) Notify Engineer whenever Owner becomes aware of any substantial development or occurrence which materially affects the scope or timing of Engineer's services. (h) Owner shall perform its obligations and render decisions within a reasonable time under the presented circumstances. However, given the nature of Owner's internal organization and requirements, a period of fourteen (14) days shall be presumed reasonable for any decision not involving policy decision or significant financial impact. A period of forty-five(45)days shall be presumed reasonable for Owner to act with respect to any matter involving policy or significant financial impact. SECTION 4. TIME FOR PERFORMANCE. Engineer's obligation to render services shall continue for such period of time as may reasonably be required for completion of the work contemplated in Appendix A- Scope of Services and Sections 1 and 2 of this Agreement. SECTION 5. PAYMENT. 5.1 Owner will pay to Engineer as full compensation for all services required to be performed by Engineer under this Agreement,except for services for additional work or work beyond the scope of this Agreement, an amount not to exceed$21,355.00 in the aggregate. In the event compensation for services is set forth in Appendix B as to each phase of work indicated in Section 1.1 of this Agreement, the maximum amount of compensation for any phase shall not exceed the amount specified in Appendix B for such phase, and together shall not exceed the maximum aggregate set forth herein. 5.2 Engineer shall submit periodic, but not more frequently than monthly, applications for payment,aggregating to not more than the maximum amount,for actual professional services rendered and reimbursable expenses incurred. Such applications shall be submitted with appropriate documentation that such services have been performed and expenses incurred. Thereafter, Owner shall pay Engineer for the amount of the application within forty(40)days of the date of billing,provided that sufficient documentation has been furnished, and further provided that Owner will not be required to pay more than 90% of the maximum amount unless the Engineer's services on the Project phases for which this Agreement is applicable have been completed to Owner's reasonable satisfaction and all required Engineer submittals have been provided. 5.3 The rates of compensation for service and for reimbursable expenses to be used with periodic and final payment applications, if any, shall be those set forth in Appendix B—"Fee Schedule.'" 5.4 No separate or additional payment shall be made for profit, overhead, local telephone expenses, lodging, routine photocopying, computer time, secretarial or clerical time, or similar expenses unless otherwise provided and listed in Appendix B -"Fee Schedule." 5.5 No compensation shall be paid to Engineer for services required and expenditures incurred in correcting Engineer's mistakes or negligence. (Agreement for Professional Engineering Services-CA Revised and Apprd 01'72022- Snow Removal Equipment Acquisition) - 7 - 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 December 31, 2022,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. 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 Engineer's performance hereunder, at any time upon written notice, either for cause or for convenience. Upon such termination, Engineer and its subcontractors shall cease all work and stop incurring expenses, and shall promptly deliver to Owner all data, drawings, specifications, reports, plans, calculations, summaries, and all other information,documents,work product, and materials as Engineer 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 Engineer, Engineer shall be paid at the rates specified in Appendix B for all services rendered and reasonable costs incurred to date of termination; together with any reasonable costs incurred within ten (10) days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Engineer or Owner. In no event shall payment to Engineer upon termination exceed the maximum compensation provided for complete performance in Section 5.1. 6.5 In the event termination of this Agreement or Engineer's services is for breach of this Agreement by Engineer, or for other fault of Engineer including but not limited to any failure to timely proceed with work,or to pay its employees,engineers,and subcontractors,or to perform work according to the highest professional standards,or to perforin work in a manner deemed satisfactory by Owner's Project Representative, then in that event, Engineer's entire right to compensation shall be chosen by Owner and limited to the lesser of(a) the reasonable value of completed work to Owner or (b) payment at the rates specified in Appendix B for services satisfactorily performed and reimbursable expenses reasonably incurred, prior to date of termination. 6.6 Engineer's professional responsibility for its completed work and services shall survive any termination. SECTION 7. GENERAL PROVISIONS. 7.1 (a) Ownership of Documents and Acquisitions. All designs,Drawings,Specifications, technical data, and other documents or instruments and all acquisitions made pursuant to this Agreement, including, but not limited to, snow removal equipment, procured or produced by the Engineer in the performance of this Agreement shall be the sole property of the Owner and the Owner is vested with all rights therein of whatever kind and however created, whether created by common law, statutory law, or by equity. The Engineer agrees that the Owner shall have access at all reasonable times to inspect and make (Agreement for Professional Engineering Services-CA Revised and Apprd 01!7!2022- Snow Removal Equipment Acquisition) - 8 - copies of all notes, designs, drawings, specifications, and all other technical data and all acquisitions pertaining to the work to be performed under this Agreement. (b) Advertising. Unless specifically approved in advance in writing by Owner, Engineer shall not include representations of the Project in any advertising or promotional materials,except for accurate statements contained in resumes or curriculum vitae of Engineer's employees. If Engineer wishes to include representations in advertising or promotional materials, it shall submit a draft of same and printer's proof of the proposed advertising or promotional materials to the Owner for prior review and shall not publish or distribute same unless written approval of the materials is first obtained. 7.2 Insurance and Indemnity. (a) Engineer agrees that it has procured 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 bodily injury including personal injury, sickness or disease, or death of any of its employees or of any person other than his employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom; and such insurance will provide for coverage in such amounts as set forth in subparagraph (b). (b) The minimum insurance coverage which Engineer shall obtain and keep in force is as follows: (i) Workers' Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. (ii) Comprehensive General and Automobile Liability Insurance with limits not less than 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 amounts and form acceptable to Owner, and with a deductible not exceeding $75,000.00. (c) Engineer agrees to hold harmless, defend, and indemnify Owner from and against any liability to third parties, arising out of negligent acts, errors, or omissions of Engineer, its employees, subcontractors and consultants. Engineer agrees to hold harmless, defend, and indemnify Owner from and against any liability to subcontractors and consultants, arising out of negligent acts, errors or omissions of Engineer and its employees, including claims of nonpayment. Nothing in this Agreement is intended, nor should it be construed,to create any rights,claims,or benefits or assume any liability for or on behalf of any third party,or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act, § 24-10-101 et seq..C.R.S. 7.3 Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either the Owner or the Engineer by the other party shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service when deposited in the United States mail, first-class postage prepaid, addressed to the Owner, Attention: Greg Pedroza, Interim Director of Aviation, Pueblo Memorial Airport,31201 Bryan Circle,Pueblo,Colorado,or to the Engineer at 7878 N. 16th Street,Suite 300,Phoenix, Arizona, 85020. Either party may change its 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 (Agreement for Professional Engineering Services CA Revised and Apprd 01/7/2022 Snow Removal Equipment Acquisition) - 9 - the Engineer respecting the Project, and any other written or oral agreement or representation respecting the Project or the duties of either the Owner or the Engineer in relation thereto not expressly set forth in this instrument is null and void. In the event of any conflict between any provision of this Agreement and a provision of any Appendix or attachment to this Agreement, the provision in this Agreement shall control and supersede the conflicting provision in the Appendix or attachment.Any inconsistent resolution provision in any attachment to this Agreement shall be void. 7.5 Successors and Assigns. This Agreement shall be binding on the parties hereto and on their partners, heirs, executors, administrators, successors, and assigns; provided, however, that neither this Agreement, nor any part thereof, nor any moneys due or to become due hereunder to the Engineer may be assigned by him without the written consent of the Owner. 7.6 Amendments. No amendment to this Agreement shall be made nor be enforceable unless made by written Amendment signed by an authorized representative of Engineer and Owner. 7.7 Choice of Law and Venue. 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, Engineer shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, national origin, disability, or age. Engineer shall endeavor to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color,religion, sex,sexual orientation,national origin,disability,or age. 7.9 Severability. If any provision of this Agreement, except for Section 2.7, 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 2.7 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 the Director of Finance certifying that a balance of appropriation exists and funds are available,the amount of money appropriated for this Agreement is equal to or in excess of the maximum compensation payable hereunder; provided, however, that if construction is phased and subject to annual appropriation, funds only in the amount of initial appropriation are available and Engineer shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. 7.11 Additional Requirements on Federally Funded Contracts. If any of the work to be performed by Engineer under this Agreement is funded in whole or in part with federal funds, then this Agreement shall be construed to include all applicable terms required by the federal assistance agreement and integrated federal regulations. By executing this Agreement, Engineer agrees to be bound by all such mandatory federal requirements, irrespective of Engineer's actual knowledge or lack of knowledge of such requirements prior to execution of this Agreement. 7.12 Access to Property Not Under Owner's Control. Engineer acknowledges that the Project may require access to property not under the control of Owner at the time of execution of this Agreement. Engineer and Engineer's employees and consultants shall, at Engineer's expense, obtain all additional necessary approvals and clearances required for access to such property. Owner shall assist Engineer in obtaining access to such property at reasonable times but make no warranty or representation whatsoever regarding access to such property. Engineer understands and agrees that entry to properties not under (Agreement for Professional Engineering Services CA Revised and Apprd 01'7'2022 Snow Removal Equipment Acquisition) - 10 - Owner's control may require Engineer 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 Engineer and Owner arising from or relating to this Agreement or Engineer's services or right to payment hereunder shall be determined and decided by the Owner's Director of Aviation whose written decision shall be final and binding unless judicial review is sought in a Colorado Court of competent jurisdiction pursuant to Rule 106, C.R.C.P. 8.2 Pending resolution of any dispute or disagreement, or judicial review, Engineer shall proceed diligently with performance of his work under this Agreement. SECTION 9. APPENDICES. 9.1 The following Appendices are attached to and made a part of this Agreement: Appendix A- "Scope of Services" consisting of 4 pages. Appendix B - "Fee Schedule"consisting of 1 page. Appendix C - "Identification of Personnel, Subcontractors and Task Responsibility" Consisting of 1 page. SECTION 10. ACCESSIBILITY. The Americans with Disabilities Act(ADA)provides that it is a violation of the ADA to design and construct a facility for first occupancy later than January 26, 1993,that does not meet the accessibility and usability requirements of the ADA,except where an entity can demonstrate that it is structurally impractical to meet such requirements. The Engineer therefore,will use his or her best reasonable professional efforts to implement any 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 WORKERS WITHOUT AUTHORIZATIONFROM PERFORMING WORK (a) At or prior to the time for execution of this Contract, Consultant shall submit to the Purchasing Agentof the City its certification that it does not knowingly employ or contract with a`worker without authorization", as that term is defined within §8-17.5-101 (9), C.R.S. (herein ``Worker without Authorization"), who will perform work under this Contract and that the Consultant will participate in either the`'E-Verify Program"created in Public Law 208, 104th Congress, as amended and expanded in Public law 156, 108th Congress, as amended,that is administered by the UnitedStates 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 employmenteligibility of all employees who are newly hired for employment to perform work under this Contract. (b) Consultant shall not: (i) Knowingly employ or contract with a Worker without Authorization to perform workunder this Contract; (Agreement for Professional Engineering Services CA Revised and Apprd 01/7'2022-Snow Removal Equipment Acquisition) - 11 - (ii) Enter into a contract with a subcontractor that fails to certify to Consultant that the subcontractor shall not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. (c) The following state-imposed requirements apply to this Contract: (i) The Consultant 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 Consultant is prohibited from using either the E-Verify Program or Department Programprocedures to undertake pre-employment screening of job applicants while this Contract is being performed. (iii) If the Consultant obtains actual knowledge that a subcontractor performing work under thiscontract knowingly employs or contracts with a Worker without Authorization to perform work under this Contract,the Consultant shall be required to: A. Notify the subcontractor and the Purchasing Agent of the City within three (3)daysthat the Consultant has actual knowledge that the subcontractor is employing or contracting with a Worker without Authorization; and B. Terminate the subcontract with the subcontractor if within three(3)days of receiving the notice required pursuant to subparagraph (c)(iii)A. above, the subcontractor does not stop employing or contracting with the Worker without Authorization ; except that the Consultant shall not terminate the contract with the subcontractor if, during such three (3) days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contractedwith a Worker without Authorization. (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 aninvestigation 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 fortermination. In the event of such termination,the Consultant shall be liable for City's actual and consequential damages. (e) Nothing in this Section shall be construed as requiring the Consultant to violate any terms ofparticipation in the E-Verify Program. SECTION 12. PERA LIABILITY The Engineer shall reimburse the Owner 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 Owner under this Agreement. Engineer has submitted to Owner a completed form listing any PERA retirees employed by Engineer and shall update said form with Owner at any time a PERA retiree is hired by Engineer. (Agreement for Professional Engineering Services—CA Revised and Apprd 01/7;2022— Snow Removal Equipment Acquisition) - 12 - IN WITNESS WHEREOF the parties hereto have made and executed this Agreement as of the Effective Date first above written. CITY OF PUEBLO, A MUNICIPAL DIBBLE AND ASSOCIATES CORPORATION CONSULTING ENGINEERS, INC. • Name: 01 b,c�� Jc.{e ( p By: ��� By: Nicholas A. Gradisar,Mayor Title: ut < <Z%c.5t ni^.) Attest: City [ SEAL] BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. ' ' 1 . / Director of Finance - APPROVED AS TO FORM: • 701/ --124- __. City Attorney (Agreement for Professional Engineering Services CA Revised and Apprd 01/7/2022 Snow Removal Equipment Acquisition) - 13 -