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HomeMy WebLinkAbout15069 RESOLUTION NO. 15069 A RESOLUTION AWARDING AN AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN THE AMOUNT OF $123,014.74 TO SHORT-ELLIOTT- HENDRICKSON, INC., A COLORADO CORPORATION, FOR PROJECT NO. 22-041 RFQ DESIGN AND ENGINEERING FOR ADAMS AVENUE AND JACKSON STREET ROUNDABOUT PROJECT AND AUTHORIZING THE PURCHASING AGENT TO EXECUTE SAME WHEREAS, proposals for Project No. 22-041 RFQ Design and Engineering for Adams Avenue and Jackson Street Roundabout Project, have been received and examined; and WHEREAS, the proposal Short-Elliott-Hendrickson, Inc. (“SEH”), was determined to be the most advantageous to the City of Pueblo, and in the best interest of the City of Pueblo, 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. The City Council authorizes Project No. 22-041 RFQ Design and Engineering for Adams Avenue and Jackson Street Roundabout to be performed, and the contract for said services is hereby awarded to Short-Elliott-Hendrickson, Inc. (“SEH”), in the amount of $123,014.74 SECTION 2. Funds for said Agreement shall be paid from Project No. CI2206 – Adams Avenue and Jackson Street Roundabout Project. SECTION 3. The Purchasing Agent is hereby authorized to execute said contract on behalf of the City of Pueblo, a Colorado Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. SECTION 4. The officers 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: November 28, 2022 BY: Larry Atencio MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: CITY CLERK City Clerk's Office Item # M6 Background Paper for Proposed Resolution COUNCIL MEETING DATE: November 28, 2022 TO: President Heather Graham and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Marisa Stoller, City Clerk FROM: Andrew Hayes, Public Works Director SUBJECT: A RESOLUTION AWARDING AN AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN THE AMOUNT OF $123,014.74 TO SHORT-ELLIOTT-HENDRICKSON, INC., A COLORADO CORPORATION, FOR PROJECT NO. 22-041 RFQ DESIGN AND ENGINEERING FOR ADAMS AVENUE AND JACKSON STREET ROUNDABOUT PROJECT AND AUTHORIZING THE PURCHASING AGENT TO EXECUTE SAME SUMMARY: This Resolution awards an Agreement for Professional Engineering Services to Short- Elliott-Hendrickson, Inc. (“SEH”), for engineering design services for Adams Avenue and Jackson Street Roundabout Project, No. 22-041. SEH was determined to be the most responsible bidder and will be awarded a contract in the amount of $123,014.74. PREVIOUS COUNCIL ACTION: Ordinance 10120, dated February 28, 2022, created Project No. CI2206 for Adams Avenue and Jackson Street Roundabout Project, an approved IGA between Pueblo and CDOT relating to the Adams Avenue and Jackson Street Roundabout Project, and budgeted and appropriated funds from CDOT totaling $900,000 for the Project. Resolution 14860, dated April 25, 2022, authorized the transfer of $100,000 from Project No. CI2204 to Project No. CI2206. BACKGROUND: The City of Pueblo was awarded a Highway Safety Improvement Program (HSIP) Grant with an overall project cost of $1,000,000. CDOT will provide $900,000 of the project funding and, under the grant agreement, the City of Pueblo is required to provide 10% of the project funding in the amount of $100,000. In August 2022, the City of Pueblo solicited Requests for Proposals for Engineering Design Services for Adams Avenue and Jackson Street Roundabout Project. After reviewing the proposals, SEH was determined to be the most advantageous to the City of Pueblo, and in the best interest of the City of Pueblo, based on the evaluation factors set forth in the Request for Proposals. FINANCIAL IMPLICATIONS: Funding in the amount of $123,014.74 will be paid from CI2206 – Adams Avenue and Jackson Street Roundabout Project. 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 of Pueblo being unable to proceed with the design of the Adams Avenue and Jackson Street Roundabout Project. RECOMMENDATION: Approval of the Resolution. ATTACHMENTS: 1. 22-041 SEH PROPOSED AGREEMENT Adams and Jackson Roundabout DocuSign Envelope ID:07203E73-OC3A-45E6-B78E-8D3B3EB5D571 AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES BY AND BETWEEN CITY OF PUEBLO AND SHORT ELLIOTT HENDRICKSON, INCORPORATED THIS AGREEMENT("Agreement") made and entered this 29th day of November, 2022 by and between the City of Pueblo, a Municipal Corporation (hereinafter"Owner" or"City") and Short Elliott Hendrickson, Incorporated, a Minnesota Corporation authorized to do business in the State of Colorado (hereinafter"Consultant"), a professional engineering firm for Consultant to render certain professional planning, design, engineering and related services for Owner in connection with Bid 22-041 RFQ Design and Engineering for Adams and Jackson Roundabout, 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 satisfactorily perform professional planning and design services for all phase of Project indicated below by mark placed in the appropriate 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: [] -Study and Report Phase [X] - Preliminary Design (Schematic) Phase [X] - Final Design Phase [X] - Preparation of Contract Documents& Bidding Phase [X] -Construction Services 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 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 and geotechnical services incidental 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 engineering services(whether furnished directly or through a professional subcontractor) shall be performed under the direction and supervision of a registered engineer in good standing and Page 1 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 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. SECTION 2. ENGINEERING 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 perform the following unless otherwise stated in Schedule 1: 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) If Consultant is to provide professional services with respect to the Project during the Preliminary Design Phase,Consultant shall perform the following unless otherwise stated in Schedule 1: 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. Page 2 of 84 DocuSign Envelope ID:07203E73-OC3A-45E6-B78E-8D3B3EB5D571 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. 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 perform the following unless otherwise stated in Schedule 1: 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 Part 36 Standards. B. Make reasonable revisions to the Drawings and Specifications requested by Owner, informing the Owner of any change in probable construction costs as a result of such revisions. C. Provide technical criteria, written descriptions, and design data for Owner's use, and disclose any significant risks and advantages/disadvantages inherent in or presented by design choices. D. Based upon Consultant's customary and usual professional judgment, prepare and submit to Owner a current detailed cost estimate for the Project including construction cost, Page 3 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 contingencies, professional compensation, consultant fees, land and right of way costs, damages,and finance costs, if any. E. 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. 2.4 Preparation of Construction Documents & Bidding Phase. If Consultant is to provide professional services with respect to the Project during the Preparation of Construction Documents& Bidding Phase, Consultant shall perform the following unless otherwise stated in Schedule 1: A. Prepare and submit to Owner draft forms of contract agreement,general and special conditions, bid forms invitations to bid, information for bidders,forms of warranty and including any special requirements imposed upon such contracts by any federal or other funding source and by any regulatory agency. In preparing such draft forms, Consultant shall consider and incorporate,to the extent both advisable and feasible, Owner's standard forms of agreement,warranty, payment and performance bonds, general conditions,and selected specifications. B. After review and comment by Owner, prepare and submit all deliverables identified in 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. 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 Services Phase, If Consultant is to provide professional services with respect to the Project during the Construction Services Phase, after award by the Owner of a general contractor for construction of the Project, Consultant shall perform the following unless otherwise stated in Schedule 1: Page 4 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 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. 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 it has inspected the Project and that to the best of its 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. L. The Consultant shall, if provided in the construction contract, be the interpreter of the construction documents and arbiter of claims and disputes thereunder. Upon written request of Page 5 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 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 its written objections thereto with the Consultant 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 Consultant's subconsultants and subcontractors, and including designs, drawings, specifications, reports, and other services, irrespective of Owner's approval or acquiescence to same. Consultant shall,without additional compensation, correct or revise any errors, omissions, or other deficiencies in its 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 liability shall comply with the standard of care applicable to the type of engineering and architectural services provided, for similarly situated Consultants, 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. 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 subconsultants to whom Engineer 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, subconsultant, or assignment of principal responsibility, in which case Consultant will employ alternate personnel for such function or reassign such Page 6 of 84 DocuSign Envelope ID:07203E73-OC3A-45E6-B78E-8D3B3EB5D571 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 its work, with dates on which it 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 its 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 its direct costs and professional time at the rates set forth in Schedule 2 - "Fee Schedule". 2.7 Requirements Where Federal Assistance Provided. A. Work to be performed by Consultant under this Agreement is funded in whole or in part with federal and/or state funds.As such,this Agreement shall be construed to include all applicable terms required by any federal and/or state assistance agreement and integrated federal and state regulations including the State of Colorado Intergovernmental Agreement dated March 29, 2022 between the State of Colorado ("State") and Owner("Grant Agreement"),which is incorporated herein by this reference, and the Federal and State contract provisions set forth in Schedule 4. By executing this Agreement, Engineer agrees to be bound by all such mandatory federal and state requirements, irrespective of Engineer's actual knowledge or lack of knowledge of such requirements prior to the execution of this Agreement. Without limiting Engineer's obligation, Consultant expressly acknowledges the following requirements: 1. The design work under this Agreement shall be compatible with the requirements of the Grant Agreement for the design/construction of the project. The State is an intended third- party beneficiary of this Agreement for that purpose. Page 7 of 84 DocuSign Envelope ID:07203E73-OC3A-45E6-878E-8D3B3EB5D571 2. Upon advertisement of the project work for construction,the Consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. 3. The Consultant shall review the construction contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. 4. The State, in its sole discretion, may review construction plans, special provisions, and estimates; and may require Owner to make such changes therein as the State determines necessary to comply with State and FHWA requirements. B. Consultant further agrees that it shall be liable for and obligated to pay Owner any and all amounts for which State may seek reimbursement from Owner arising out of Engineer not meeting the contract commitments as set forth or otherwise required pursuant to CDOT Professional Services Local Agency Civil Rights& Disadvantaged Business Enterprise (DBE) Contract Requirements.See Schedule 5 attached. SECTION 1 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. 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 its 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 Page 8 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 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 1—"Scope of Services" and Section 2 of this Agreement. Proposed work schedule attached as Schedule 3 may only be altered by agreement of all parties. 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 $123,014.74 in the aggregate as 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. 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. In addition, City may withhold from payment of the final invoice or payment for the final phase of the Project any and all amounts for which State may seek Page 9 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 reimbursement from Owner arising out of Engineer not meeting the contract commitments as set forth or otherwise required pursuant to CDOT Professional Services Local Agency Civil Rights& Disadvantaged Business Enterprise (DBE) Contract Requirements. See Schedule 4. 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 Section 2.6(g). SECTION 6. TERMINATION 6.1 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, 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 Consultant may have accumulated in performing this Agreement,together with all finished work and work in progress. 6.2 Upon termination of this Agreement for events or reasons not the fault of Consultant, Consultant shall be paid at the rates specified in Schedule 2 for all services rendered and reasonable costs incurred to the date of termination;together with any reasonable costs incurred within 10 days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Consultant or Owner. In no event shall payment to Consultant upon termination exceed the maximum compensation provided for complete performance in Section 5.1. 6.3 In the event termination of this Agreement or Consultant's services is for breach of this Agreement by Consultant, or for other fault of Consultant including but not limited to any failure to timely proceed with work, or to pay its employees and subconsultants or subcontractors, or to perform work according Page 10 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 to the highest professional standards, or to perform work in a manner deemed satisfactory by Owner'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 Owner, or(b) payment at the rates specified in Schedule 2 for services satisfactorily performed and reimbursable expenses reasonably incurred, prior to date of termination. 6.4 Consultant's professional responsibility for its completed work and services shall survive any termination. SECTION 7. GENERAL PROVISIONS 7.1 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 Consultant from all loss, claims, injury, and judgments arising from the use of such designs, drawings or specifications for such other project. 7.2 Advertising. Unless specifically approved in advance in writing by Owner, Consultant shall not include representations of the Project in any advertising 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. 7.3 Insurance and Indemnity. A. Consultant 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 its employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom;and such insurance will provide for coverage in such amounts as set forth in subparagraph 8.2(b) below. Page 11 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 B. Insurance coverage shall meet all requirements of the Grant Agreement as provided in Subsection 2.7 of this Agreement. Consultant shall obtain and keep in force the following insurance policies and meet and perform the following conditions and requirements: 1. Workers' Compensation Insurance as required by statutory requirements in Colorado and in any other state or states where the work is performed, and employers' liability insurance covering all employees acting within the course and scope of their employment. 2. Commercial General Liability Insurance written on an Insurance Services Office occurrence form, covering premises operations,fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: a. $1,000,000 each occurrence; b. $1,000,000 general aggregate; c. $1,000,000 products and completed operations aggregate; and d. $50,000 any 1 fire 3. Automobile Liability.Automobile liability insurance covering any auto (including owned, hired, and non-owned autos) with a minimum limit of$1,000,000 each accident combined single limit. 4. Protected Information. Liability insurance covering all loss of State Confidential Information as defined in the Grant Agreement, such as PII, PHI, PCI, Tax Information, and CJI, and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows: a. $1,000,000 each occurrence; and b. $2,000,000 general aggregate 5. Professional Liability Insurance. Professional Liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows: a. $1,000,000 each occurrence; and b. $1,000,000 general aggregate 6. Crime Insurance. Crime insurance including employee dishonesty coverage with minimum limits as follows: a. $1,000,000 each occurrence; and b. $1,000,000 general aggregate 7. Insurance Conditions and Requirements Page 12 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 a. All insurance policies shall be issued by insurance companies with an AM Best rating of A-VIII or better. b. The Owner and State shall be named as an additional insured on all commercial general liability policies required of Consultant. In the event of cancellation of any commercial general liability policy,the carrier shall provide at least 10 days prior written notice to Owner and State. c. Coverage provided by Consultant shall be primary over any insurance or self- insurance program carried by Owner or State. d. All commercial insurance policies shall include provisions preventing cancellation or non-renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Owner. e. All commercial insurance policies shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Owner and State, its agencies, institutions, organizations,officers, agents, employees, and volunteers. f. Consultant shall provide certificates evidencing Consultant's insurance coverage required under this Agreement as a condition of approval of this Agreement by Owner. C. Engineer agrees to hold harmless, defend and indemnify Owner from and against any liability to third parties, arising out of negligent acts, errors or omissions of Engineer, his employees, subcontractors, and consultants. 7,4 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, City of Pueblo, Department of Public Works,Attn:Andrew Hayes, Director, 211 E. D Street, Pueblo, CO, 81003 or to the Consultant, Short Elliott Hendrickson, Inc., Attn:James Hayson, PE/Principal, 503 North Main Street, Suite 225 Thatcher Building, 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. 7.5 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 are null and void. Notwithstanding the foregoing,the terms of Bid 22-041 RFQ Design and Engineering for Adams and Jackson Roundabout are hereby incorporated herein, and Consultant agrees to abide by and comply with the same. 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 Page 13 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 and supersede the conflicting provision in the Schedule or attachment.Any inconsistent resolution provision in any attachment to this Agreement shall be void. 7.6 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 it without the written consent of the Owner. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement,shall be strictly reserved to the parties hereto, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person or entity on such Agreement. It is the express intention of the parties hereto that any person or entity,other than the parties to this Agreement, receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 7.7 Amendments. No amendment to this Agreement shall be made nor be enforceable unless made by written Amendment signed by an authorized representatives of both Consultant and Owner. 7.8 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. 7.9 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, sexual orientation, national origin, disability, or age. Consultant 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. 7.10 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. 7.11 Appropriations. Subject to execution of this Agreement by the Director of Finance certifying that a balance of appropriation exists and funds are available,the amount of money appropriated for this Agreement is equal to or in excess of the maximum compensation payable hereunder; provided, however,that if work Page 14 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 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. 7.12 Additional Requirements on Federally or State Funded Agreements. If any of the work to be performed by Consultant under this Agreement is funded in whole or in part with federal or state funds,then this Agreement shall be construed to include all applicable terms required by the federal or state assistance agreement and integrated federal or state regulations. By executing this Agreement,Consultant agrees to be bound by all such mandatory federal or state requirements, irrespective of Consultant's actual knowledge or lack of knowledge of such requirements prior to execution of this Agreement. 7.13 Access to Property Not Under Orner's Control. Consultant acknowledges that the Project may require access to property not under the control of Owner at the time of execution of this Agreement. Consultant and Consultant's employees and subconsultants 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. ADDITIONAL REQUIREMENTS ON FEDERAL OR STATE FUNDED PROJECTS 8.1 Work to be performed by Consultant under this Agreement is funded in whole or in part with federal and/or state funds.As such,this Agreement shall be construed to include all applicable terms required by any federal and/or state assistance agreement and integrated federal and state regulations including the State of Colorado Intergovernmental Agreement dated March 29, 2022 between the State of Colorado ("State") and Owner("Grant Agreement"),which is incorporated herein by this reference, and the Federal and State contract provisions set forth in Schedule 4. By executing this Agreement, Consultant agrees to be bound by all such mandatory federal and state requirements, irrespective of Engineer's actual knowledge or lack of knowledge of such requirements prior to the execution of this Agreement. Without limiting Consultant's obligation, Consultant expressly acknowledges the following requirements: A. The design work under this Agreement shall be compatible with the requirements of the Grant Agreement for the design/construction of the project.The State is an intended third-party beneficiary of this Agreement for that purpose. B. Upon advertisement of the project work for construction, the Consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. Page 15 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 C. The Consultant shall review the construction contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. D. The State, in its sole discretion, may review construction plans, special provisions, and estimates; and may require Owner to make such changes therein as the State determines necessary to comply with State and FHWA requirements. 8.2 Consultant further agrees that it shall be liable for and obligated to pay Owner any and all amounts for which State may seek reimbursement from Owner arising out of Consultant not meeting the contract commitments as set forth or otherwise required pursuant to CDOT Professional Services Local Agency Civil Rights& Disadvantaged Business Enterprise (DBE) Contract Requirements. See Schedule 4. SECTION 9. DISPUTES 9,1 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 located in Pueblo County, Colorado, pursuant to Rule 106, C.R.C.P. 9.2 Pending resolution of any dispute or disagreement, or judicial review, Consultant shall proceed diligently with performance of its work under this Agreement. SECTION 10. SCHEDULES The following Schedules are attached to and made a part of this Agreement: Schedule 1 -"Scope of Services" consisting of 3 pages. Schedule 2 - "Fee Schedule" consisting of 1 page. Schedule 3 -"Work Schedule" consisting of 1 page. Schedule 4-"Identification of Personnel, Subcontractors, and Task Responsibility" consisting of 15 pages. Schedule 5- Federal Highway Administration (FHWA)Contract Clauses including "CDOT Professional Services Local Agency Civil Rights& Disadvantaged Business Enterprise (DBE) Contract Requirements" consisting of 25 pages. SECTION 11. 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 Page 16 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 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 its 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 12. COMPLIANCE WITH IMMIGRATION REFORM. Consultant certifies that it has complied with the United States Immigration Reform and Control Act of 1986. Consultant represents and warrants that to the extent required by said Act, all persons employed by Consultant for performance of this contract have completed and signed Form 1-9 verifying their identities and authorization for employment. SECTION 13. 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. The Consultant shall fill out the Colorado PERA Questionnaire and submit the completed form to City as part of the signed Agreement. SECTION 14. ELECTRONIC SIGNATURE This Agreement and all other documents contemplated hereunder may be executed using electronic signatures with delivery via facsimile transmission, by scanning and transmission of electronic files in Portable Document Format(PDF) or other readily available file format,or by copy transmitted via email, or by other electronic means and in one or more counterparts,each of which shall be: (i) an original, and all of which taken together shall constitute one and the same agreement, (ii) a valid and binding agreement and fully admissible under state and federal law, and (iii) enforceable in accordance with its terms. [Signature section on following page] Page 17 of 84 DocuSign Envelope ID:07203E73-0C3A-45E6-B78E-8D3B3EB5D571 This Agreement,together with all Project Documents incorporated by reference, constitutes the entire Agreement between City and Consultant with respect to their subject matter, and may not be amended a modified except by written document signed by both parties. 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 r DocuSigned by:eDocuSigned by: P?WOE,.G� Ce-e...- gRAn-GG D. #97.4ori BAk--663514DB28C0490_. By` 8E57856194CA4F9_. Naomi Hedden, Director of Purchasing James Hayson, Principal-In-Charge DocuSigned��� �by::: A ifkA Attes 7CO2EBDFFC3D43C_ Marisa Stoller, City Clerk BALANCE OF APPROPRIATION EXISTS FOR THIS '''•.„M,•,4', - AGREEMENT AND FUNDS ARE AVAILABLE. / DocuSigned by: ' CAE4752363A9406... Alexandria Romero, Finance Director APPROVED AS TO FORM DocuSigned by: vt M 245CE6E532484B9.• Dan Kogovsek, City Attorney Attachments: Schedule 1 Scope of Services Schedule 2 Fee Schedule Schedule 3 Work Schedule Schedule 4 Identification of Personnel, Subcontractors, and Task Responsibility Schedule 5 Federal Highway Administration (FHWA) Contract Clauses including "CDOT Professional Services Local Agency Civil Rights & Disadvantaged Business Enterprise (DBE) Contract Requirements" Additional Information Page 18 of 84