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HomeMy WebLinkAboutResolution - 2024-R0343 - PSA Contract 18233, With Freese And Nichols, Inc. - 08/13/2024Resolution No. 2024-RO343 Item No. 6.7 August 13, 2024 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute and on behalf of the City of Lubbock, Professional Services Agreement Contract No. 18233 final design, bid, and construction phase services for the 66`" Street drainage channel project, and between the City of Lubbock and Freese and Nichols, Inc., and related documents. S Contract is attached hereto and incorporated in this resolution as if fully set forth herein and sl be included in the minutes of the City Council. Passed by the City Council on August 13, 2024 "'�!ARK W. MCBRAYER, MAYOR A' 'TEST: C rtney Paz, City Secretary APPROVED AS TO CONTENT: Erik Rejino, Assistant City Manager APPROVED AS TO FORM: elli Leisure, Senior Assistant City Attorney ccdocs:'RESTSA-No. 18233 FNI 6611 St drainage channel 7.22.24 Resolution No. 2024-RO343 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § This Professional Service Agreement ("Agreement") Contract No. 18233 is entered into this 13th day of August , 2024, is by and between the City of Lubbock (the "City"), a Texas home rule municipal corporation, and Freese and Nichols, Inc. (the" Engineer"), a Texas corporation. WITNESSETH WHEREAS, The City desires to contract with the Engineer to provide professional services for Final Design, Bid and Construction Phase Services for 66" Street Drainage Channel Project, (the "Activities"); and WHEREAS, the Engineer has a professional staff experienced and is qualified to provide professional engineering services related to Activities, and will provide the services, as defined below, for the price provided herein, said price stipulated by the City and the Engineer to be a fair and reasonable price; and WHEREAS, the City desires to contract with the Engineer to provide professional services related to the Activities, and Engineer desires to provide the Services related to same. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Agreement, the City and the Engineer hereby agree as follows: ARTICLE I. TERM The term of this Agreement commences on the Effective Date and continues without interruption for a term of _540 calendar days. If the Engineer determines that additional time is required to complete the Services, the City Engineer, may, but is not obligated to, in his or her discretion, execute an agreement to grant up to an additional six (6) months of time so long as the amount of the consideration does not increase. An amendment to this Agreement resulting in an increase in the amount of the consideration must be approved by the City acting through its governing body. Page 1 of 11 ARTICLE II. SERVICES AND COMPENSATION A. The Engineer shall conduct all activities, and within such timeframes, as set forth on Exhibit "A", attached hereto (the "Services"). B. The Engineer shall receive as consideration to be paid for the performance of the Services, in an amount not to exceed $492,003, as set forth in Exhibit "B". ARTICLE III. TERMINATION A. General. The City may terminate this Agreement, for any reason or convenience, upon thirty (30) days written notice to the Engineer. In the event this Agreement is so terminated, the City shall only pay the Engineer for services actually performed by the Engineer up to the date the Engineer is deemed to have received notice of termination, as provided herein. B. Termination and Remedies. In the event the Engineer breaches any term and/or provision of this Agreement, the City shall be entitled to exercise any right or remedy available to it by this Agreement, at law, equity, or otherwise, including without limitation, termination of this Agreement and assertion of an action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any right or remedy and all rights and remedies shall be cumulative. ARTICLE IV. NON - ARBITRATION The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, this provision shall control. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. The Engineer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas and is qualified to carry on its business in the State of Texas. B. Corporate Power. The Engineer has the corporate power to enter into and perform this Agreement and all other activities contemplated hereby. Page 2 of 11 C. Authorization. Execution, delivery, and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of the Engineer. This Agreement constitutes legal, valid, and binding obligations of the Engineer and is enforceable in accordance with the terms thereof. D. Engineer. The Engineer maintains a professional staff and employs, as needed, other qualified specialists experienced in providing the Services, and is familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the Activities contemplated hereby. E. Performance. The Engineer will and shall conduct all activities contemplated by this Agreement in accordance with the standard of care, skill and diligence normally provided by a professional person in performance of similar professional services, and comply with all applicable laws, rules, and regulations, both state and federal, relating to professional services, as contemplated hereby. F. Use of Copyrighted Material. The Engineer warrants that any materials provided by the Engineer for use by City pursuant to this Agreement shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other law, statute, rule, order, regulation, ordinance or contractual obligation relating to the use or reproduction of materials. The Engineer shall be solely responsible for ensuring that any materials provided by the Engineer pursuant to this Agreement satisfy this requirement and the Engineer agrees to indemnify and hold City harmless from all liability or loss caused to City or to which City is exposed on account of the Engineer's failure to perform this duty. ARTICLE VI. SCOPE OF WORK The Engineer shall accomplish the following: Professional Services related to the Services, as provided in Exhibit "A", attached hereto and made a part hereof. ARTICLE VII. INDEPENDENT CONTRACTOR STATUS The Engineer and the City agree that the Engineer shall perform the duties under this Agreement as an independent contractor and shall be considered as independent contractor under this Agreement and/or in its activities hereunder for all purposes. The Engineer has the sole discretion to determine the manner in which the Services are to be performed. During the performance of the Services under this Agreement, the Engineer and the Engineer's employees and/or sub -consultants, will not be considered, for any purpose, employees or agents of the City within the meaning or the application of any federal, state or local law or regulation, including without limitation, laws, rules or regulations regarding or related to unemployment insurance, old age benefits, workers compensation, labor, personal injury or taxes of any kind. Page 3 of 11 ARTICLE VIII. INSURANCE The Engineer shall procure and carry, at its sole cost and expense through the life of this Agreement, except as otherwise provided herein, insurance protection as hereinafter specified, in form and substance satisfactory to the City, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. The Engineer shall obtain and maintain in full force and effect during the term of this Agreement, and shall cause each approved subcontractor or sub - consultant of the Engineer to obtain and maintain in full force and effect during the term of this Agreement, commercial general liability, professional liability and automobile liability coverage for non -owned and hired vehicles with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of A-VII or better. Except for Professional Liability, the policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Per Occurrence Single Limit: $1,000,000 General Aggregate Limit: $2,000,000 Professional Liability: Combined Single Limit: $2,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Employer's Liability: Per Occurrence Single Limit: $1,000,000 Worker's Compensation Per Occurrence Single Limit: $500,000 The Engineer shall further cause any approved subcontractor or sub -consultant to procure and carry, during the term of this Agreement, the insurance coverage required of Engineer herein, including without limitation, Professional Liability coverage, protecting the City against losses caused by the professional negligence of the approved subcontractor or sub -consultant. The City shall be listed as a primary and noncontributory additional insured with respect to the Automobile Liability and Commercial General Liability and shall be granted a waiver of subrogation under those policies. The Engineer shall provide a Certificate of Insurance to the City as evidence of coverage. The Certificate shall provide 30 days' notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy shall be included in the Certificate. The Engineer shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Page 4 of 11 Labor Code. Further, the Engineer shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Engineer maintains said coverage. The Engineer may maintain Occupational Accident and Disability Insurance in lieu of Worker's Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the City. If at any time during the life of the Agreement or any extension hereof, the Engineer fails to maintain the required insurance in full force and effect, the Engineer shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Notwithstanding anything contained herein to the contrary, the professional liability policy shall be maintained at the Engineer's sole cost and expense. The retroactive date shall be no later than the commencement of the performance of this Agreement and the discovery period (possibly through tail coverage) shall be no less than 10 years after the completion of the Services provided for in this Agreement. The provisions of this Article VIII shall survive the tennination or expiration of this Agreement. ARTICLE IX. EMPLOYMENT OF AGENTS/RETAINING OF CONSULTANTS The Engineer may employ or retain consultants, contractors, or third parties (any of which are referred to herein as "Sub -consultant"), to perform certain duties of Engineer, as set forth on Exhibit "B" attached hereto, under this Agreeme nt, provided that the City approves the retaining of Sub - consultants. The Engineer is at all times responsible to the City to perform the Services as provided in this Agreement and the Engineer is in no event relieved of any obligation under this Agreement upon retainage of any approved Sub -consultant. Any agent and/or Sub -consultant retained and/or employed by the Engineer shall be required by the Engineer to carry, for the protection and benefit of the City and the Engineer and naming said third parties as additional insureds, insurance as described above required to be carried by the Engineer in this Agreement. The Engineer represents that such services are either under applicable value thresholds or are otherwise exempt from notice and/or bid requirements under Texas Law. ARTICLE X. CONFIDENTIALITY The Engineer shall retain all information received from or concerning the City and the City's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the City, unless otherwise required by law. ARTICLE XI. INDEMNITY THE ENGINEER SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, Page 5 of 11 OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS FEES, FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF THE ENGINEER, ITS AGENTS, EMPLOYEES, AND OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND,OR THE USE OR OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. ARTICLE XII. COMPLIANCE WITH APPLICABLE LAWS The Engineer shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Agreement, and any amendments thereto. ARTICLE XIII. NOTICE A. General. Whenever notice from the Engineer to the City or the City to the Engineer is required or permitted by this Agreement and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand (in which case such notice shall be effective upon delivery); (2) facsimile (in which case such notice shall be effective upon delivery); or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Engineer's Address. The Engineer's address and numbers for the purposes of notice are: Freese and Nichols, Inc. Heather R. Keister, P.E., CFM 1500 Broadway Street, Suite 206 Lubbock, Texas 79401 Telephone: 806.686.2706 Email: Heather. Keister(cfreese.com C. City's Address. The City's address and numbers for the purposes of notice are: Zoltan Fekete, P.E. City of Lubbock P.O. Box 2000 1314 Avenue K Lubbock, Texas 79457 Telephone: 806.775.3317 Email: zfekete@mylubbock.us Page 6 of 11 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party as provided herein, referring specifically to this Agreement, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE XIV. CITY -PROVIDED DATA AND RESPONSIBILITIES Provision of Data. The City shall furnish the Engineer non -confidential studies, reports and other available data in the possession of the City pertinent to the Engineer's Services, so long as the City is entitled to rely on such studies, reports and other data for the performance of the Engineer's Services under this Agreement (the "Provided Data"). The Engineer shall be entitled to use and rely, so long as such reliance is reasonable, upon all such Provided Data. ARTICLE XV. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Agreement are inserted in this Agreement strictly for the parties' convenience in identifying the provisions to this Agreement and shall not be given any effect in construing this Agreement. B. Audit. The Engineer shall provide access to its corporate books and records to the City. The City may audit, at its expense and during normal business hours, the Engineer's books and records with respect to this Agreement between the Engineer and the City. C. Records. The Engineer shall maintain records that are necessary to substantiate the services provided by the Engineer. D. Assignability. The Engineer may not assign this Agreement without the prior written approval of the City. E. Successor and Assigns. This Agreement binds and inures to the benefit of the City and the Engineer, and in the case of the City, its respective successors, legal representatives, and assigns, and in the case of the Engineer, its permitted successors and assigns. F. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT Page 7 of 11 JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this Agreement and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Agreement, and duly authorized and executed by the Engineer and the City. I. Entire Agreement. This Agreement, including Exhibits "A" through "B" attached hereto, contains the entire agreement between the City and the Engineer, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. J. No Joint Enterprise. Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership or principal agent relationship between the Engineer and the City. K. Documents Owned by City. Any and all documents, drawings and specifications prepared by Engineer as part of the Services hereunder, shall become the property of the City when the Engineer has been compensated as set forth in Article II, above. The Engineer shall make copies of any and all work products for its files. L. Notice of Waiver. A waiver by either the City or the Engineer of a breach of this Agreement must be in writing and duly authorized to be effective. In the event either party shall execute and deliver such waiver, such waiver shall not affect the waiving party's rights with respect to any other or subsequent breach. M. Third Party Activities. Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than the City and the Engineer. N. Non -Appropriation. All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the services provided under the Agreement, the City will terminate the Agreement, without termination charge or other liability, on the last day of the then - current fiscal year or when the appropriation made for the then -current year for the services covered by this Agreement is spent, whichever event occurs first (the "Non -Appropriation Date"). If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Engineer on Page 8 of 11 thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this Agreement beyond the Non -Appropriation Date. O. Contracts with Companies Engaged in Business with Iran, Sudan, or Foreign Terrorist Organization Prohibited. Pursuant to Section 2252.152 of the Texas Government Code, prohibits the City from entering into a contract with a vendor that is identified by The Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization P. No Boycott of Israel. Pursuant to Section 2271.002 of the Texas Government Code, a) This section applies only to a contract that: (1) is between a governmental entity and a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity. (b) A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. Q. Texas Government Code 2274. By entering into this Agreement, Contractor verifies that: (1) it does not, and will not for the duration of the contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If Contractor is a company with 10 or more full-time employees and if this Agreement has a value of at least $100,000 or more, Contractor verifies that, pursuant to Texas Government Code Chapter 2274, it does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and will not discriminate during the term of the contract against a firearm entity or firearm trade association. R. Contractor represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If Contractor is a company with 10 or more full-time employees and if this Agreement has a value of at least $100,000 or more, Contractor verifies that, pursuant to Texas Government Code Chapter 2274, it does not boycott energy companies; and will not boycott energy companies during the term of the Agreement. This verification is not required for an agreement where a governmental entity determines that these requirements are inconsistent with the governmental entity's constitutional or statutory duties related to the issuance, incurrence, or management of debt obligations or the deposit, custody, management, borrowing, or investment of funds. S. Texas Public Information Act. The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Contractor agrees to: (1) preserve all contracting information related to the contract as provided by the records retention Page 9 of 11 requirements applicable to the governmental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. T. Professional Responsibility. All architectural or engineering services to be performed shall be done with the professional skill and care ordinarily provided by competent architects or engineers practicing under the same or similar circumstances and professional license. Page 10 of 11 EXECUTED as of the Effective Date hereof. CITY OF LUBBOCK AT 'ST: Courtney Paz, City Secretary APPROVED AS TO CONTENT: 'At'� JI"-- Michael G. Keenum, P.E., CFM, Division Director of Engineering: City Engineer APPROVED AS TO FORM: elli Leisure, Senior Assistant City Attorney MAAK W MCBRAYER, M tyOR Firm Freese and Nichols, Inc. By: eather Keister, P.E. Principal/Vice President Email: Heather.Keistertufreese.com Page 11 of 11 EXHIBIT A SCOPE OF SERVICES FOR: FOR 66TH STREET CHANNEL IMPROVEMENTS FINAL DESIGN, BID AND CONSTRUCTION PHASE SERVICES GENERAL: This proposal is for final design, bid and construction phase services for playa excavation to Playa 100 and channel improvements for Playa 100 overflow near 661h Street, from Playa 100 west of Upland east along Marsha Sharp Freeway to Playa 039A. The Federal Emergency Management Agency (FEMA) floodplain map shows that the subject area has a defined floodplain noted as Zone AE on the FIRM. These major improvements are needed to reduce playa overflow within allowable flow depths at the 66th & Upland intersection, provide connectivity to the proposed culvert to be constructed as part of the Upland Avenue, Segment 1 project, and provide conveyance to Playa 039A . The work to be performed shall consist of providing project management and engineering services for the final development of Plans, Specifications, Estimate (PS&E), landowner coordination, bid and construction phase services for the planned 200,000 cubic yards of soil excavation from Playa 100 and the construction of drainage channel from Playa 100 to Playa 39A. This contract will include: 1. Final design of the 661h Street Channel Improvements plans, specifications and cost estimate. 2. Bid phase services. 3. General and Resident project representation for the construction phase. BASIC SERVICES: The Basic Services include the project administration, preparation of final construction documents, bid phase services and construction phase services as set forth herein. ENGINEER sometimes referred to as "FNI" shall render the following professional services in connection with the development of the Project: A. GENERAL SCOPE OF SERVICES TASKS: ENGINEER will provide the following as part of the final design phase of The Project: 1. Provide administration and management of The Project. Review ongoing activities. Monitor schedule and budget. Review progress with OWNER on a regular basis. Discuss issues with the OWNER as they are noted. Attend coordination meetings with the OWNER in addition to various meetings mentioned in the following sections. Prepare and distribute minutes of the meetings. All meetings provided for in this Agreement shall occur at the offices of the ENGINEER or the Page 1 of 13 OWNER, or other location determined by the OWNER. 2. Provide monthly update reports which include the following: *Status of the work •Major tasks to be completed in the next month • Discussion of major issues *Scope changes to project scope or Engineer's scope • Project budget update (if major changes since the last update) • Project schedule update (if major changes since the last update) •Status of deliverables 3. FINAL DESIGN PHASE: FNI shall provide final construction documents for the proposed improvements, incorporating City comments and revisions based on comments received at the public meeting. These revisions include adjusting the channel from Playa 100 to Playa 039A to avoid existing structures, landscaping, and other citizen requested items. These revisions also included remodeling the channel to ensure proper conveyance to accommodate the requested changes. B. BID OR NEGOTIATION PHASE. Upon completion of the design services and approval of Final drawings and specifications by Owner, FNI will proceed with the performance of services in this phase as follows: 1. Assist OWNER in securing bids, issuing notice to bidders and notifying selected plan rooms. The notice to bidders will be furnished to OWNER for publication in the local news media. The cost for publications shall be paid by OWNER. 2. Distribute plans to bidders using the web -based CivCast utilized by Freese and Nichols for bidding projects. Cost for any bidder's requests for hard copies of bid documents will be paid for by bidder. Keep a record of prospective bidders and plan rooms and other parties to whom the bidding documents have been distributed. Advertise for bids on FNI's website, and keep the website updated with addenda information, plan holder lists, and bidding information. 3. Attend one (1) pre -bid conference. 4. Issue Addenda as appropriate to clarify, correct, or change the bidding documents. 5. Assist OWNER in the opening, tabulation, and analysis of the bids received and furnish recommendations on the award of contract as appropriate. 6. Assist OWNER in the preparation of documents for execution of the construction contract. FNI will conform the contract documents, make four (4) original copies for execution. FNI will also make ten (10) conformed copies of the plans and specifications for use by the Contractor and Page 2 of 13 OWNER and Engineer. The ten (10) copies will include five (5) full size copies, five (5) half size copies, and electronic PDF copy. 7. The Bid and Award phase will be considered complete upon execution of the construction contracts and distribution of the conformed copies of the plans and specifications. C. CONSTRUCTION PHASE: Upon completion of the bid or negotiation phase services, FNI will proceed with the performance of construction phase services as described below. FNI will endeavor to protect Owner in providing these services however, it is understood that FNI does not guarantee the Contractor's performance, nor is FNI responsible for supervision of the Contractor's operation and employees. FNI shall not be responsible for the means, methods, techniques, sequences or procedures of construction selected by the Contractor, or any safety precautions and programs relating in any way to the condition of the premises, the work of the Contractor or any Subcontractor. FNI shall not be responsible for the acts or omissions of any person (except its own employees or agents) at the Project site or otherwise performing any of the work of the Project. 1. Assist Owner in conducting pre -construction conference with the Contractor, review construction schedules prepared by the Contractor pursuant to the requirements of the construction contract and prepare a proposed estimate of monthly cash requirements of the Project from information provided by the Construction Contractor. 2. Establish communication procedures with the Owner and contractor. Submit monthly reports of construction progress. Reports will describe construction progress in general terms and summarize project costs, cash flow, construction schedule and pending and approved contract modifications. 3. Establish and maintain a project documentation system consistent with the requirements of the construction contract documents. Monitor the processing of contractor's submittals and provide for filing and retrieval of project documentation. Produce monthly reports indicating the status of all submittals in the review process. It's anticipated to review eight (8) contractor's submittals, two (2) requests for information, two (2) modification requests, one (3) shop drawings, twelve (12) schedules on per month, and other submittals in accordance with the requirements of the construction contract documents for the projects. Monitor the progress of the contractor in sending and processing submittals to see that documentation is being processed in accordance with schedules. 4. Based on FNI's observations as an experienced and qualified design professional and review of the Payment Requests and supporting documentation submitted by Contractor, determine the Page 3 of 13 amount that FNI recommends Contractor be paid on monthly and final estimates, pursuant to the General Conditions of the Construction Contract. 5. Site Visits - General Representative to make one site visit per month for a total of twelve months to observe the progress and the quality of work and to attempt to determine in general if the work is proceeding in accordance with the Construction Contract Documents. In this effort FNI will endeavor to protect the Owner against defects and deficiencies in the work of Contractors and will report any observed deficiencies to Owner. Visits to the site in excess of the specified number are an additional service. 6. Notify the contractor of non -conforming work observed on site visits. Review quality related documents provided by the contractor such as test reports, equipment installation reports or other documentation required by the Construction contract documents. 7. Coordinate the work of testing laboratories and inspection bureaus required for the testing or inspection of materials, witnessed tests, factory testing, etc. for quality control of the Project. 8. Interpret the drawings and specifications for Owner and Contractor(s). Investigations, analyses, and studies requested by the Contractor(s) and approved by Owner, for substitutions of equipment and/or materials or deviations from the drawings and specifications is an additional service. 9. Establish procedures for administering constructive changes to the construction contracts. Process contract modifications and negotiate with the contractor on behalf of the Owner to determine the cost and time impacts of these changes. Prepare change order documentation for approved changes for execution by the Owner. Documentation of field orders, where cost to Owner is not impacted, will also be prepared. Investigations, analyses, studies or design for substitutions of equipment or materials, corrections of defective or deficient work of the contractor or other deviations from the construction contract documents requested by the contractor and approved by the Owner are an additional service. Substitutions of materials or equipment or design modifications requested by the Owner are an additional service. 10. Prepare documentation for contract modifications required to implement modifications in the design of the project. Receive and evaluate notices of contractor claims and make recommendations to the Owner on the merit and value of the claim on the basis of information submitted by the contractor or available in project documentation. Endeavor to negotiate a settlement value with the Contractor on behalf of the Owner if appropriate. Providing these services to review or evaluate construction contractor(s) claim(s), supported by causes not within the control of FNI are an additional service. Page 4 of 13 11. Assist in the transfer of and acceptance by the construction contractor of any Owner furnished equipment or materials. 12. Conduct, in company with Owner's representative, a final review of the Project for conformance with the design concept of the Project and general compliance with the Construction Contract Documents. Prepare a list of deficiencies to be corrected by the contractor before recommendation of final payment. Assist the City in obtaining legal releases, permits, warranties, spare parts, and keys from the contractor. Review and comment on the certificate of completion and the recommendation for final payment to the Contractor(s). Visiting the site to review completed work in excess of one trip are an additional service. 13. Revise the construction drawings in accordance with the information furnished by construction Contractor(s) reflecting changes in the Project made during construction. Five (5) half -sized sets and Two (2) full-sized sets of prints of "Record Drawings" shall be provided by FNI to Owner. D. TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services for one bid packages in accordance with the following schedule: 1. Final Design Submittal — 30 calendar days from Notice to Proceed 2. If FNI's services are delayed through no fault of FNI, FNI shall be entitled to adjust contract schedule consistent with the number of days of delay. In the event FNI asserts that it is entitled to additional time, it shall provide notice to the OWNER as soon as reasonably practicable after the event allegedly causing such delay shall occur ("Delay Event"), but in no event to exceed five (5) business days after the occurrence of the Delay Event. FNI shall use and exercise all diligence to promptly remove or remediate such Delay Event. In the event notice of the Delay Event shall not be provided as prescribed herein, FNI shall not be entitled to relief from schedule as provided in this AGREEMENT. These delays may include but are not limited to delays in OWNER or regulatory reviews, delays on the flow of information to be provided to FNI, except any delays occasioned by subcontracts or sub consultants of FNI, and governmental approvals. These delays may result in an adjustment to compensation. Page 5 of 13 EXHIBIT A, PART 2, ADDITIONAL SERVICES FOR 66TH STREET CHANNEL IMPROVEMENTS FINAL DESIGN, BID AND CONSTRUCTION PHASE SERVICES ADDITIONAL SERVICES: Additional project administration and design services to be performed by FNI, if authorized by Owner, which are not included in the above described General Service, Basic Services, and Special Services, are, except as may otherwise be provided by FNI, described as follows: A. Field layouts or the furnishing of construction line and grade surveys. B. Making revisions to drawings, specifications or other documents. C. Preparing data and reports for assistance to Owner in preparation for hearings before regulatory agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and preparations therefore before any regulatory agency, court, arbitration panel or mediator. D. Assisting Owner in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and/or administrative proceedings in the defense or prosecution of claims disputes with Contractor(s). E. Performing investigations, studies and analyses of substitutions of equipment and/or materials or deviations from the drawings and specifications. F. Assisting Owner in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this AGREEMENT. Such services, if any, shall be furnished by FNI on a fee basis negotiated by the respective parties outside of and in addition to this AGREEMENT. This provision shall not apply to any expense related to a legal action to which FNI is a party. G. Providing environmental support services including preparation of a Jurisdictional Determination (JD) Report, preparation of a JD Request, preparation of a Pre -application Meeting Request Form or conducting a meeting with the USACE, preparation of a Pre -Construction Notification or an Individual Section 404 permit application for submittal to the USACE, conducting function or condition assessments (e.g., TXRAM) of waters of the U.S. potentially impacted by the proposed project, conducting presence/absence surveys for federally listed threatened/endangered species, conducting cultural resources studies or surveys, conducting Phase 1/11 Environmental Site Assessment; and other environmental services not specifically defined in this scope of services. H. Design, contract modifications, studies or analysis required to comply with local, State, Federal or other regulatory agencies that become effective after the date of this agreement. I. Services required to resolve bid protests or to rebid the projects for any reason other than fault of any type or degree of FNI. Page 6 of 13 Providing services made necessary because of unforeseen, concealed, or differing site conditions or due to the presence of hazardous substances in any form, except as noted in the scope of services. Providing value engineering studies or reviews of costsavings proposed by others. Page 7 of 13 EXHBIT A, PART 3, RESPONSIBILITIES OF THE OWNER FOR 66TH STREET CHANNEL IMPROVEMENTS GENERAL AND RESIDENT REPRESENTATION A. The ENGINEER will provide the following construction phase staff for construction the 60 Street Channel Improvements as follows: Project Manager 8 hours per month for 12 months Project Engineer 4 hours per month for 12 months Construction Manager 8 hours per month for 12 months Construction Inspection 25 hours per week for 12 months B. The ENGINEER will have a Resident Project Representative on the Site. The duties, responsibilities and the limitations of authority of the Resident Project Representative, and designated assistants, are as follows: 1. Resident Project Representative is ENGINEER's agent at the site, will act as directed by and under the supervision of ENGINEER, and will confer with ENGINEER regarding Resident Project Representative's actions. Resident Project Representative's dealings in matters pertaining to the on -site Work shall in general be with ENGINEER and CONTRACTOR, keeping Owner advised as necessary. Resident Project Representative's dealings with Subcontractors shall only be through or with full knowledge and approval of CONTRACTOR. Resident Project Representative shall generally communicate with Owner with the knowledge of and under the direction of ENGINEER. C. Duties and Responsibilities of Resident Project Representative: 1. Schedules: Review the progress schedule, schedule of Shop Drawing submittals and schedules of values prepared by CONTRACTOR and consult with ENGINEER concerning acceptability. 2. Conferences and Meetings: Attend meetings with CONTRACTOR, such as preconstruction conferences, progress meetings, job conferences and other project - related meetings, and prepare and circulate copies of minutes thereof. 3. Liaison: a. Serve as ENGINEER's liaison with CONTRACTOR, working principally through CONTRACTOR's superintendent and assist in understanding the intent of Contract Page 8 of 13 Documents; and assist ENGINEER in serving as Owner's liaison with CONTRACTOR when CONTRACTOR's operations affect Owner's on -site operations. b. Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. 4. Shop Drawings and Samples: a. Receive Samples which are furnished at the Site by CONTRACTOR, and notify ENGINEER of availability of Samples for examination. b. Advise ENGINEER and CONTRACTOR of the commencement of any Work requiring a Shop Drawing or Sample if the submittal has not been approved by ENGINEER. 5. Review of Work, Rejection of Defective Work, Inspections and Tests: a. Conduct on -site observations of the Work in progress to determine if the Work is in general proceeding in accordance with the Contract Documents. b. Report to ENGINEER whenever Resident Project Representative believes that any Work will not produce a completed Project that conforms generally to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise ENGINEER of Work the Resident Project Representative believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. C. Verify that tests, equipment and systems start-up and operating and maintenance training are conducted in the presence of appropriate personnel, and the CONTRACTOR maintains adequate records thereof; and observe record and report to ENGINEER appropriate details relative to the test procedures and start-ups. d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections and report to ENGINEER. 6. Interpretation of Contract Documents: Report to ENGINEER when clarifications and interpretations of the Contract Documents are needed and transmit to CONTRACTOR clarifications and interpretations as issued by ENGINEER. 7. Request for Revisions: Consider and evaluate CONTRACTOR's suggestions for revisions to Drawings or Specifications and report with Resident Project Representative's Page 9 of 13 recommendations to ENGINEER. Transmit to CONTRACTOR in writing decisions as issued by ENGINEER. 8. Records: a. Maintain at the job site orderly files for correspondence, reports of job conferences, Shop Drawings and Samples, reproductions of original Contract Documents, including all Work Change Directives, Addenda, Change Orders, Field Orders, Written Amendments, additional Drawings issued subsequent to the execution of the Contract, ENGINEER's clarifications and interpretations of the Contract Documents, progress reports, submittals and correspondence received from and delivered to CONTRACTOR and other Project related documents. 9. Reports: a. Furnish to ENGINEER periodic reports as required of progress of the work and of CONTRACTOR's compliance with the progress schedule and schedule of Shop Drawings and Sample submittals. b. Consult with ENGINEER in advance of scheduled major tests, inspections or start of important phases of the Work. C. Draft proposed Written Amendments, Change Orders and Work Change Directives, obtaining backup material from CONTRACTOR and recommend to ENGINEER Written Amendments, Change Orders, Work Change Directives, and Field Orders. d. Report immediately to ENGINEER and Owner the occurrence of any accident. 10. Payment Requests: Review Applications for Payment with CONTRACTOR for compliance with the established procedure for their submission and forward with recommendations to Owner, noting particularly the relationship of the payment requested to the schedule of values, Work completed and materials and equipment at the Site but not incorporated in the Work. 11. Certificates, Maintenance and Operation Manuals: During the course of the Work, verify that certificates, maintenance and operation manuals and other data required to be assembled and furnished by CONTRACTOR are applicable to the items actually installed and in accordance with the Contract Documents, and have this material delivered to ENGINEER for review and forwarding to Owner prior to final payment for the Work. Page 10 of 13 12. Completion: a. Before ENGINEER issues a Certificate of Substantial Completion, submit to CONTRACTOR a list of observed items requiring completion or correction. b. Observe whether CONTRACTOR has performed inspections required by laws or regulations, ordinances, codes or order applicable to the Work, including but not limited to those to be performed by public agencies having jurisdiction over the Work. C. Conduct a final inspection in the company of ENGINEER, Owner and CONTRACTOR and prepare a final list of items to be completed or corrected. d. Observe whether all items on final list have been completed or corrected and make recommendations to ENGINEER concerning acceptance. D. Limitations of Authority of Resident Project Representative: 1. Shall not authorize any deviation from the Contract Documents or substitution of materials or equipment (including "or -equal" items), unless authorized by ENGINEER. 2. Shall not exceed limitations of ENGINEER's authority as set forth in Agreement or the Contract Documents. 3. Shall not undertake any of the responsibilities of CONTRACTOR, Subcontractor, Suppliers, or CONTRACTOR's superintendent. 4. Shall not advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of construction unless such advice or directions are specifically required by the Contract Documents. S. Shall not advise on, issue directions regarding or assume control over safety precautions and programs in connection with the Work or any activities or operations of Owner or CONTRACTOR. 6. Shall not accept shop drawing or sample submittals from anyone other than the CONTRACTOR. 7. Shall not participate in specialized field or laboratory tests or inspections conducted by others, except as specifically authorized by ENGINEER. Page 11 of 13 EXHIBIT B, PART 1— BUDGET FOR 66TH STREET CHANNEL IMPROVEMENTS FINAL DESIGN, BID AND CONSTRUCTION PHASE SERVICES CITY and ENGINEER have established a not -to -exceed budget of $492,003 for Engineer Services for the 6611 Street Channel Improvements to complete all services under this AGREEMENT. This amount will not be exceeded without a contract amendment agreed upon and executed by both parties to this agreement. CITY will pay the ENGINEER hourly, for services identified in Exhibit "A, Part 1", based on ENGINEERS Fee Schedule presented as EXHIBITS B, Parts 1-2. Subconsultant services will be billed at cost to ENGINEER with a 10 percent handling fee. The Budget is presented for the services of ENGINEER under this AGREEMENT is provided in this Exhibit B. CITY and ENGINEER agree to allow redistribution of funds between Activities and tasks as appropriate to allow flexibility in providing the needed services within the not -to -exceed budget. ENGINEER agrees to complete these services as delineated above. Should there be a Change in Scope of Work or Time of Performance, then this can result in an amendment or modification for extension on time to this AGREEMENT which shall be negotiated at that time. The budget assumes that all work will be completed within 18 months from the Notice to Proceed. Page 12 of 13 EXHIBIT B, PART 2 - HOURLY RATE SCHEDULE COMPENSATION FOR 66TH STREET CHANNEL IMPROVEMENTS FINAL DESIGN, BID AND CONSTRUCTION PHASE SERVICES Position Rate Principal /Group Manager 305 Technical Professional -6 293 Technical Professional -5 234 Technical Professional -4 200 Technical Professional-3 173 Technical Professional-2 152 Technical Professional-1 125 CAD Technician/Designer - 3 168 CAD Technician/Designer - 2 126 CAD Technician/Designer - 1 100 Senior CAD Technician/Designer 207 Construction Manager - 4 165 Construction Manager - 3 135 Construction Manager - 2 128 Construction Manager - 1 100 Corporate Project Support - 3 140 Corporate Project Support - 2 126 Corporate Project Support - 1 96 Intern/ Coop 65 Rates for In -House Services Bulk Printing and Reproduction Technology Charge $8.50 per hour B&W Color SmaI I Format (per copy) $0.10 $0.25 Travel Large Format (per sq. ft.) Standard IRS Rates Bond $0.25 $0.75 Glossy /Mylar $0.75 $1.25 Vinyl/Adhesive $1.50 $2.00 Mounting (per sq. ft.) $2.00 Binding (per binding) $0.25 OTHER DIRECT EXPENSES: Other direct expenses are reimbursed at actual cost times a multiplier of 1.10. They include outside printing and reproduction expense, communication expense, travel, transportation and subsistence away from the FNI office and other miscellaneous expenses directly related to the work, including costs of laboratory analysis, test, and other work required to be done by independent persons other than staff members. For Resident Representative services performed by non-FNI employees and CAD services performed In- house by non-FNI employees where FNI provides workspace and equipment to perform such services, these services will be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI employee was performing the same or similar services. LUB19 Page 13 of 13