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HomeMy WebLinkAboutResolution - 2012-R0037 - Agreement - SGS Engineering LLC - 01_26_2012Resolution No. 2012—R0037 January 26, 2012 Item No. 5.10 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Professional Services Agreement with SGS Engineering, a Texas LLC. Said Professional Services Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council on January 26 , 2012. 52;;;Aa-r� TOM AARTIN, MAYOR ATTEST: Reb cca Garza, City Secr to APPRONTD AS O COT$IFENT: arsha eed, P.E. Chief Operating Officer APPROVED AS TO FORM: Linda L. Chamales, Economic Development Attorney City Att/Linda/RES- SGS Downtown Utility Plan Services, January 3, 2012 Resolution No. 2012-R0037 STANDARD SERVICES AGREEMENT This Agreement is made as of 26th day of January 1 2012 , by and between CITY OF LUBBOCK ("Client") and SGS ENGINEERING, a Texas LLC ("SGS"). As provided in this Agreement, SGS will provide construction period services for the following project (the "Project"): Lubbock Downtown Utility Plan: located downtown, in the City of Lubbock, in the County of Lubbock, State of Texas. The Utility Plan is further defined as electric, communications, cable television, and gas facilities to be installed in the re -development area. Section 1. Scope of Services Engineer shall perform the Services described in Attachment A, Scope of Services, which is attached hereto and incorporated by reference as part of this Agreement. Section 2. Fees for Services SGS's estimated fees for Construction Period described in Attachment A shall be as set forth in Attachment B. Total estimated fees for these services, fees and expenses shall not exceed $176,720 without prior approval. Section 3. Payment Terms (a) SGS shall be compensated with an estimated fee of $176,720, including reimbursable expenses. SGS will bill monthly based upon actual time and expenses expended for the project phases identified in Schedule 1, up to the maximum estimated fee stated above. (b) The Client shall pay the amount due each month as defined in Attachment B. (c) SGS shall keep and maintain time and expense records relating to the scope of services described above, together with supporting receipts, vouchers, and appropriate documentation. As necessary, these records and other appropriate documentation may be required to support invoices submitted to the Client. The Client shall have the right to examine such records as it deems necessary upon reasonable notice to SGS. (d) If a delinquency by client occurs, SGS may choose to suspend work. If such a decision to suspend work is made, SGS will notify Client in writing. SGS may choose to recommence work once a delinquency is completely cured and any and all attendant collections costs, fees, increases in costs or fees, to other amounts required to be paid by Client under this Agreement are made in full. If a delinquency by Client occurs and SGS chooses not to suspend work, no waiver or estoppels shall be implied or inferred. by Client under this Agreement are made in full. If a delinquency by Client occurs and SGS chooses not to suspend work, no waiver or estoppels shall be implied or inferred. Section 4. Client's Responsibilities Client agrees to provide full, reliable information regarding its requirements for the Project and, at its expense, shall furnish the information, surveys and reports, if any, listed on Attachment C In addition, Client agrees to provide, at its expense and in a timely manner, the cooperation of its personnel and such additional information with respect to the Project as may be required from time to time for the performance of SGS's work. Client shall designate a Project Representative authorized to act on behalf of Client with respect to this Agreement and agrees to render any decisions promptly to avoid unreasonable delay to the Project and the performance of SGS's work. Section 5. Termination The Agreement may be terminated by either Client or SGS by giving written notice at least thirty (30) days prior to the date of termination. In the event of such termination, Client shall pay SGS for services and Reimbursable Expenses performed or incurred prior to the termination date. Section 6. Access to the Site; Photographs SGS and SGS's employees and consultants shall have access to the Project area from the public right-of-way at all reasonable times and shall be permitted to photograph the Project. Section 7. Use of Documents Plans, drawings and specification or other writings or documents prepared or provided by SGS hereunder are prepared for this Project only, but may be used by SGS for purposes of illustrating the scope and nature of project involvement. SGS shall provide Client with a reproducible set of drawings and specifications and a copy of studies, drawings, photographs, GIS Data, and digital files and images for its records. Section 8: Independent Contractor Engineer undertakes performance of the Services as an independent contractor and shall be wholly responsible for the methods of its subcontractors, agents and employees. Owner shall have no right to supervise the methods used, but Owner shall have the right to observe such performance. Engineer shall work closely with Owner in performing Services under this Agreement. Section 9. Limitations of Responsibility Engineer shall not be responsible for actual means, methods, techniques, sequences, procedures or safety precautions and programs used in connection with the Project by others. Engineer shall assist the Owner in the administering of its contracts with any vendor or other Project participant in order to fulfill contractual or other responsibilities to the Owner or to comply with federal, state and local laws, ordinances, regulations, rules, codes, orders, criteria and standards. Section 10. Liability and Indemnification 10.1 General. Having considered the potential liabilities that may exist during the performance of the Services, the benefits of the Project, and the Engineer's fee for the Services, and in consideration of the promises contained in this Agreement, Engineer agrees to provide the indemnities set forth herein. 10,2 Indemnification. Engineer shall indemnify and hold City and City's elected officials, officers, agents, employees and independent contractors harmless, to the fullest extent permitted by law from and against any and all claims, demands, damages, costs, liabilities and expenses, and including reasonable attorney's fees, as a result to or arising from Engineer's negligent acts, errors, or omissions. The indemnity provided herein shall survive the expiration or termination of this Agreement for a period not to exceed three years. 10.3 Defense of Claims. In the event an action for damages is filed in which negligence is alleged on the part of Owner and Engineer, Engineer agrees to defend Owner. In the event Owner accepts Engineer's defense, Owner agrees to indemnify and reimburse Engineer on a pro rata basis for all expenses of defense. Owner also agrees to indemnify and reimburse Engineer on a pro rata basis for any judgment or amount paid by Engineer in resolution of such claim; however, any non -judicial resolution of a claim must be approved by Owner prior to payment. Pro rata share shall be based upon a final judicial determination of negligence or, in the absence of such determination, by mutual agreement. 10.4 Employee Claims. Engineer shall indemnify Owner against legal liability for damages arising out of claims by Engineer's employees. Owner shall indemnify Engineer against legal liability for damages arising out of claims by Owner's employees to the extent permitted by law. 10.5 Limitations of Liability. To the fullest extent permitted by law, Engineer's total liability to Owner for any and all injuries, claims, losses, expenses or damages arising out of or in any way related to the Project or this Agreement from any cause or causes, including, but not limited to, Engineer's negligence, errors, omissions, strict liability, breach of contract or breach of warranty, shall not exceed the minimum amounts required by Section 11 of this Agreement. 10.6 Survival. Upon completion of all services, obligations and duties provided for in this Agreement, or in the event of termination of this Agreement for any reason, the terms and conditions of this Section shall survive. Section 11. Insurance (a) General Liability: SGS's insurance shall contain broad form contractual liability with a combined single limit of a minimum of $500,000 each occurrence and in the aggregate and shall include the following: • Bodily Injury and Property Damage • Broad Form Contractual Liability • Personal Injury and Advertising Injury • Fire Legal Liability • Products and Completed Operations (b) Business Automobile Liability: SGS's insurance shall contain a combined single limit of at least $500,000 per occurrence, and include coverage for but not limited to the following: • Bodily Injury and Property Damage • Any and all vehicles owned, used, or hired (c) Professional Liability: SGS's insurance shall contain a combined single limit of a minimum of $1,000,000 per occurrence and in the aggregate, including errors & omissions. (d) Workers' Compensation and Employers Liability Insurance: SGS shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, SGS shall maintain said coverage throughout the term of this contract and shall comply with all provision of Title 5 of the Texas Labor Code to ensure that SGS maintains said coverage. Any termination of workers' compensation insurance coverage by SGS or any cancellation or non -renewal of workers' compensation insurance coverage for SGS shall be a material breach of this contract. The policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. Employer's Liability with limits of at least $500,000 each accident, $500,000 by disease, policy limit, and $500,000 by disease each employee shall also be obtained and maintained throughout the term of this contract. (e) Other Insurance Requirements: City of Lubbock shall be named as an additional insured SGS's general liability and auto liability insurance policies through policy endorsement must include wording, which states that the policy shall be primary and non-contributory with respect to any insurance carried by City of Lubbock. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policies must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. Section 12. Reuse of Documents All documents, including drawings, specifications and computer software, prepared by Engineer pursuant to this Agreement are instruments of service in respect to this Project. They are not intended or represented to be suitable for reuse by Owner or others on extensions of this Project or on any other Project. Any reuse without written verification or adaptation by Engineer for the specific purpose intended will be at Owner's sole risk and without liability or legal exposure to Engineer. Section 13. Amendment, Termination and Stop Orders Engineer. Upon receipt of such notice, the Engineer shall, unless the notice directs otherwise, immediately discontinue all work in connection with the performance of this Agreement and shall proceed to cancel promptly all existing orders insofar as such orders are chargeable to this Agreement. The Engineer shall submit a statement showing in detail the work performed under this Agreement to the date of termination. The Owner shall then pay the Engineer promptly that proportion of the prescribed fee which applies to the work actually performed under this Agreement, less all payments that have been previously made. Thereupon, copies of all completed work accomplished under this Agreement shall be delivered to the Owner. The Owner may issue a Stop Work Order to the Engineer at any time. Upon receipt of such order, the Engineer is to discontinue all work under this Agreement and cancel all orders pursuant to the Agreement, unless the order otherwise directs. If the Owner does not issue a Restart Order within 60 days after receipt by the Engineer of the Stop Work Order, the Engineer shall regard this Agreement terminated in accordance with the foregoing provisions. Section 14. Nondisclosure Of Proprietary Information Engineer shall consider all information provided by Owner to be proprietary unless such information is available from public sources or determined to be public information pursuant to the Texas Public Information Act. Engineer shall not publish or disclose proprietary information for any purpose other than the performance of the Services without the prior written authorization of Owner or in response to legal process. Section 15. Uncontrollable Forces Neither Owner nor Engineer shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to uncontrollable forces the effect of which, by the exercise of reasonable diligence, the non -performing party could not avoid. The term "uncontrollable forces" shall mean any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the control of the non -performing party. It includes, but is not limited to, fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, construction Contractor default or abandonment, failure on the part of the construction Contractor to otherwise pursue construction of the project, court orders, legislative actions, Owner -directed changes to design criteria or scope of services once criteria and scope have been agreed upon, Owner -directed changes to plans after plans have been reviewed and approved (including partial submittal progress reviews), inability to procure permits, licenses or authorizations from any state, local or federal agency or person for any of the supplies, materials, accesses or services required to be provided by either Owner or Engineer under this Agreement. Neither party shall, however, be excused from performance if non-performance is due to uncontrollable forces which are removable or remediable and which the non -performing party could have, with the exercise of reasonable diligence, removed or remedied with reasonable dispatch. The provisions of this Article shall not be interpreted or construed to require Engineer or Owner to prevent, settle or otherwise avoid a strike, work slowdown or other labor action_ The non -performing party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable force preventing continued performance of the obligations of this Agreement. Section 16. Governing Law THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. ANY SUIT BROUGHT TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR FOR CONSTRUCTION OF ANY PROVISION THEREOF SHALL BE SOLELY BROUGHT IN LUBBOCK COUNTY, TEXAS. Section 17. Miscellaneous 16.1. Non -waiver. A waiver by either Owner or Engineer of any breach of this Agreement shall not be binding upon the waiving party unless such waiver is in writing. In the event of a written waiver, such a waiver shall not affect the waiving party`s rights with respect to any other or further breach. 16.2. Severability. The invalidity, illegality or unenforceability of any provision of this Agreement, or the occurrence of any event rendering any portion or provision of this Agreement void, shall in no way affect the validity or enforceability of any other portion or provision of the Agreement. Any void provision shall be deemed severed from the Agreement and the balance of the Agreement shall be construed and enforced as if the Agreement did not contain the particular portion or provision held to be void. The parties further agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of the Article shall not prevent the entire Agreement from being void should a provision which is of the essence of the Agreement be determined to be void. Section 18. Integration and Modification This Agreement represents the entire integrated agreement between the parties and supersedes all prior negotiations, representations and agreements, eith written or oral. This Agreement may be amended only by a written instrument signed by each of the parties. Section 19. Successors and Assigns Owner and Engineer each binds itself and its directors, officers, partners, successors, executors, administrators, permitted assigns and legal representatives to the other party to this Agreement and to the partners, succors, executors, administrators, assigns and legal representatives of such other party, in respect to all covenants, agreements and obligations of this Agreement. Section 20. Assignment Neither Owner nor Engineer shall assign, sublet or transfer any rights under or interest in (including, but without limitation, monies that may become due or monies that are due) this Agreement without the written consent of the other, except to the extent that the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph, subject to Article 22, shall prevent Engineer from employing such independent consultants, associates and subcontractors as he may deem appropriate to assist him in the performance of the Services hereunder. Section 21. Subcontractors No work herein called for by the Engineers shall be subcontracted to a subcontractor who is not acceptable to the Owner or assigned without prior written approval of the Owner. The Engineer shall require subcontracts to conform to the applicable terms of this Contract and include provisions which require subcontractor compliance with Owner's Rules. Section 22. Third Party Rights Nothing herein shall be construed to give any rights or benefits to anyone other than Owner and Engineer. EXECUTED in duplicate and effective as of the 26th day of January SGS ENGINEERING, LLC Date: By:, Steve Owens, P.E. Title: Managing Partner Address: 401 50h Street Lubbock, TX 79404 Phone: 606-795-6827 Fax: 806-795-7526 Attention: Steve Owens CITY OF LUBBOCK Tom Martin, Mayor ATTEST: eb Garza, City Secret ry - APPROVED AS TO CONTEN : i � Marsha Reed, P.E., Chief Operating Officer APPROVED AS TO FORM: Linda Chamales, Economic Development Attorney Address: City of Lubbock P.O. Box 2000 Lubbock, TX 79457 Phone: 806-775-2110 Fax: 806-775-2051 Attention: Marsha Reed 2012 Project : Resolution No. 2012—R0037 ATTACHMENT A TO AGREEMENT FOR ENGINEERING SERVICES (Construction Period Services) Owner: City of Lubbock, Texas A DESCRIPTION OF SCOPE OF SERVICES The scope of services for this project is as follows: Work will not proceed until Owner has authorized Engineer in writing to proceed. I. DEFINED TERMS A. Wherever used in this Agreement (including Attachments hereto), the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof: I. Addenda -written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Application for Payment -the form acceptable to Engineer which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents, 3. Bid -the offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 4. Bidding Documents -the advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 5. Change Order -a document recommended by Engineer which is signed by Contractor and Owner to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. 6. Construction Agreement -the written instrument which is evidence of the agreement, contained in the Contract Documents, between Owner and Contractor concerning the Work. 7. Construction Contract —the entire and integrated written agreement between the Owner and Contractor concerning the Work. 8. Continuous Observation -observation of construction on a basis that is sufficient to reasonably assure substantial compliance with the plans and specifications and is considered continuous as opposed to intermittent observation. Personnel performing continuous observation are not required to be on a specific site 100 percent of the time, but may leave a specific site for indefinite periods of time to observe other sites, observe other portions of project work, perform other assignments, or leave the site if no work is being performed that, in the opinion of the Engineer, requires observation. A-1 9. Continuous Presence —see Continuous Observation. 10. Contract Documents -documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between Owner and Contractor, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, the General Conditions, the Special Provisions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendment, Change Orders, Work Change Directives, Field Orders, and Engineer's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 11. Construction Contract Times -the numbers of days or the dates stated in the Construction Agreement to: (i) achieve Substantial Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by Engineer's written recommendation of final payment. 12. Contractor -an individual or entity with whom Owner enters into a Construction Agreement. 13. Correction Period -the time after Substantial Completion during which Contractor must correct, at no cost to Owner, any Defective Work, normally one year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract documents. 14. Defective -an adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract documents, or has been damaged prior to Engineer's recommendation of final payment. 15. Documents -data, reports, Drawings, Specification, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by Engineer to Owner pursuant to this Agreement. 16. Drawings -that part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by contractor. Shop Drawings are not Drawings as so defined. 17. Effective Date of the Construction Agreement -the date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 18. Engineer's Consultants -individuals or entities having a contract with Engineer to furnish services with respect to the Project as Engineer's independent professional associates, consultants, subcontractors, or vendors. The term Engineer includes Engineer's Consultants. 19. Field Order -a written order issued by Engineer which directs minor changes in the Work, but which does not involve a change in the Contract Price or the Contract Times, A-2 20. General Conditions -that part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 21, Intermittent Observation -observation of construction on a basis such that specific milestones of construction progress are observed for substantial compliance with the plans and specifications prior to beginning work toward the next milestone. An example is checking steel reinforcement placement prior to concrete being placed, but not being on -site continuously while the reinforcement is being assembled. 22. Intermittent Presence -see Intermittent Observation. 23. Record Drawings -the drawings as issued for construction on which the Engineer, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information Engineer considers significant based on record documents furnished by Contractor to Engineer and which were annotated by Contractor to show changes made during construction. 24. Resident Project Representative -the authorized representative of Engineer, assigned to assist Engineer at the Site during the Construction phase. The Resident Project Representative will be Engineer's agent or employee and under Engineer's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by Owner. 25. Samples -physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 26. Shop Drawings- all drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to Engineer to illustrate some portion of the Work. 27. Site -lands or areas indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, rights -of -way and easements for access thereto and such other lands furnished by Owner which are designated for use of Contractor. 28. Specifications -that part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 29. Substantial Completion -the Date of Substantial Completion shall be determined by the Engineer and Owner as the Date that construction is sufficiently complete in accordance with the Contract Documents, so the Owner can occupy or utilize the Work for the use for which it is intended. Minor items of Work may still remain to be completed following the Date of Substantial Completion, such as minor repairs, aesthetic items, and final cleanup. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 30. Special Provisions -that part of the Contract Documents which amends or supplements the General Conditions. Also may be referenced as Special Conditions. 31. Work -the entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to the Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, A-3 installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 32. Work Change Directive -a written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by Owner upon recommendation of the Engineer, ordering an addition, deletion, or revision in the work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Time, but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 33. Written Amendment -a written amendment of the Contract Documents signed by Owner and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non -engineering or non -technical rather than strictly construction -related aspects of the Contract Documents. II. BASIC CONSTRUCTION PERIOD SERVICES A. Upon award of a construction contract to a Contractor, and upon written authorization from Owner, Engineer shall: 1. General Administration of Construction Contract -consult with Owner and act as Owner's representative as authorized by Owner. 2. Resident Project Representative (RPR)-provide the services of an RPR at the Site to assist the Engineer and to provide observation of Contractor's work. Duties, responsibilities, and authority of the RPR are as set forth in this Agreement. The furnishing of such RPR's services will not extend Engineer's responsibilities or authority beyond the specific limits set forth elsewhere in this Agreement. 3. Pre -Construction Conference -participate in a Pre -Construction Conference prior to commencement of Work at the Site. 4. Engineer shall develop, implement and execute a written protocol for promptly notifying the Contractor and the Owner whenever the Engineer believes that any part of Contractor's work in progress 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 the Contractor and the Owner of that part of work in progress that Engineer believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. Engineer will not be responsible for decisions the Owner makes that are not in agreement with the written recommendation provided by the Engineer. A-4 5. Visits to Site and Observation of Construction -in connection with observations of Contractor's work in progress while it is in progress: a. Engineer shall furnish a Resident Project Representative ("RPR"), assistants, and other field staff to assist the Engineer in observing progress and quality of the Work. The RPR, assistants, and other field staff under this Exhibit A shall provide full time representation when primary construction work is in progress or may provide lesser representation to a lesser degree when full time representation is not required. b. Through observations of Contractor's work in progress and field checks of materials and equipment by the RPR and assistants, Engineer shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work. However, Engineer shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over the Contractor's Work nor shall Engineer have authority over or responsibility for the means, methods, techniques, sequences, or procedures selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's performing and furnishing the Work, or responsibility of construction for Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. RPR will report to Engineer, and Engineer will report to Owner and Contractor, whenever RPR or Engineer believes that any part of Contractor's work in progress 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 fiinctioning 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 the Owner and Contractor of that part of work in progress that Engineer believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval, Perform verification testing for construction materials testing performed by Contractor's testing agency. For this contract, the Owner has authorized the Contractor to administer the construction phase compliance testing contract. RPR should observe Contractor's testing agency during the taking of tests, and will document the locations of field tests for future reference. The Owner's contract with the Contractor should stipulate that all test results from the Contractor's testing agency are reported. This includes both passing and failing tests. Engineer will perform verification tests as needed to confirm the results of the Contractor's testing agency, and will document all passing and failing tests. A-5 b. Defective Work -recommend to Owner that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, Engineer believes that such work will not produce a completed Project that conforms generally to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Recommend to Owner that Contractor's work be disapproved, repaired, or removed and replaced if test results received after work has been finished indicate the product does not meet the requirements of the specifications. 7. Clarifications and interpretations; Field Orders -issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. Engineer may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work Change Directives -recommend Change Orders and Work Change Directives to Owner, as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings and Samples -review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety, precautions and programs incident thereto. 10. Substitutes and "or -equal" -evaluate, determine and recommend the acceptability of substitute or "or -equal" materials and equipment proposed by Contractor. 11. Inspections and Tests -require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. Engineer's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents. 12. Disagreements between Owner and Contractor -Engineer will offer recommendations to Owner and will render formal written decisions on all claims of Owner and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decision, Engineer shall be fair and not show partiality to Owner or Contractor and shall not be liable in connection with any decision rendered in good faith in such capacity. A-6 13. Applications for Payment -based on Engineer's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that Engineer recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute Engineer's representation to Owner, based on such observations and review, that, to the best of Engineer's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is Engineer's responsibility to observe Contractor's work. In the case of unit price work, Engineer's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). b. Collect certified payroll from Contractor and check compliance with the Davis -Bacon wage rate law. Notify Owner and Contractor of any deficiencies. 14. Contractor's Completion Documents. a. Receive and review maintenance and operating instructions, schedules, and guarantees. b. Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples, annotated record drawings, and other data which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. c. Engineer shall transmit these documents to Owner. 15. Substantial Completion -promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with Owner and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of Owner, Engineer considers the Work Substantially Complete, Engineer shall deliver a certificate of Substantial Completion to Owner and Contractor. The certificate of Substantial Completion shall not be issued so long as major items of Work remain to be completed. Normally, only minor "punch list" items that do not affect the function of the Work can remain when a substantial completion certificate is issued. A-7 16. Final Notice of Acceptability of the Work -conduct a final inspection to detennine if the completed Work of Contractor is acceptable so that Engineer may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, Engineer shall also provide "Notice of Acceptability of Work" that the Work is acceptable to the best of Engineer's knowledge, information, and belief and based on the extent of the services provided by Engineer under this Agreement. Such notice shall not be issued until all items of the Work, including "punch list" items, are satisfactorily completed. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and subsequent notice to proceed from Owner to Engineer, and will terminate upon written recommendation by Engineer for final payment to Contractors and subsequent delivery of record drawings to Owner. In no case shall the duration of the construction phase exceed the duration in Exhibit B without modification of the professional services agreement and schedule. C. Resident Project Representative This section of the Agreement defines the duties, responsibilities and limitations of authority of Resident Project Representative. 1. Engineer shall furnish Resident Project Representative ("RPR"), assistants, and other field staff to assist Engineer in observing progress and quality of the Work. 2. Through observations of Contractor's work in progress and field checks of materials and equipment by the RPR and assistants, Engineer shall endeavor to provide further protection for Owner against defects and deficiencies in the Work. 3. The duties and responsibilities of the RPR are limited to those of Engineer in this Agreement with the Owner and in the Contract Documents, and are further limited and described as follows: a. General: RPR is Engineer's agent at the Site, will act as directed by and under the supervision of Engineer, and will confer with Engineer regarding RPR's actions. RPR's dealings in matters pertaining to the Contractor's work in progress shall in general be with Engineer and Contractor, keeping Owner advised as necessary. RPR's dealings with subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with Owner with the knowledge of and under the direction of Engineer. b. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and schedule of values prepared by Contractor and consult with Engineer concerning acceptability. c. Conferences and Meetings: Attend meetings with Contractor, such as pre - construction conferences, progress meetings, job conferences and other project - related meetings, and prepare and circulate copies of minutes thereof. d. Liaison: A-8 1) Serve as Engineer's liaison with Contractor, working principally through Contractor's superintendent and assist in understanding the intent of the Contract Documents. 2) Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. e. 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. f: Shop Drawings and Samples. 1) Record date of receipt of Samples and approved Shop Drawings. 2) Receive Samples which are furnished at the Site by Contractor, and notify Engineer of availability of Samples for examination 3) Advise Engineer and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by Engineer. g. Modifications: Consider and evaluate Contractor's suggestions for modifications in Drawings or Specifications and report with RPR's recommendations to Engineer. Transmit to Contractor in writing decisions as issued by Engineer. h. Review of Work and Rejection of Defective Work: I) Conduct on -Site observations of Contractor's work in progress to assist Engineer in determining if the Work is in general proceeding in accordance with the Contract Documents. 2) Report to Engineer and Contractor whenever RPR believes that any part of Contractor's work in progress 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 that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. i. Inspections, Tests, and System Startups: I ) Consult with Engineer in advance of scheduled major inspections and tests of important phases of Work. 2) Verify that tests, equipment, and operating and maintenance training are conducted in the presence of appropriate Owner's personnel, and that Contractor maintains adequate records thereof. 3) Observe, record, and report to Engineer appropriate details relative to the test procedures and systems startups. 4) Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections, and report to Engineer. 5) Document locations of field verification tests and keep a record of the locations of each test. j. Records: A-9 1) Maintain at the Site or at Engineer's offices orderly files for correspondence, reports of job conferences, reproductions of original Contract Documents including all Change Orders, Field Orders, Work Change Directives, Addenda, additional Drawings issued subsequent to the execution of the Contract, Engineer's clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing and Sample submittals received from and delivered to Contractor, and other Project related documents. 2) Prepare a daily report or keep a diary or log book, recording Contractor's hours on the Site, weather conditions, data relative to questions of Change Orders, Field Orders, Work Change Directives, or changed conditions, Site visitors daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to Engineer. 3) Record names, addresses and telephone numbers of Contractors, subcontractors, and major suppliers of materials and equipment. 4) Maintain records for use in preparing Project documentation. 5) Upon completion of the Work, furnish original set of all RPR Project documentation to Engineer. k. Reports: 1) 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 Drawing and Sample submittals. 2) Draft and recommend to Engineer proposed Change Orders, Work Change Directives, and Field Orders. Obtain backup material from Contractor. 3) Furnish to Engineer and Owner copies of all inspection, test, and system startup reports. 4) Report immediately to Engineer the occurrence of any Site accidents, any hazardous environmental conditions, emergencies, or acts of God endangering the Work and property damaged by fire or other causes. 1. Payment Requests: Review Applications for Payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to Engineer, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the Site buy not incorporated in the Work. m. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Specifications to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered to Engineer for review and forwarding to Owner prior to payment for that part of the Work. n. Completion; 1) Before Engineer issues a Certificate of Substantial Completion, submit to Contractor a list of observed items requiring completion or correction. A-10 2) Observe whether Contractor has arranged for inspections required by Laws and Regulations, including but not limited to those to be performed by public agencies having jurisdiction over the Work. 3) Participate in a final inspection in the company of Engineer, Owner, and Contractor and prepare a final list of items to be completed or corrected. 4) Observe whether all items on final list have been completed or corrected and make recommendations to Engineer concerning acceptance and issuance of the Notice of Acceptability of the Work. o. Resident Project Representative shall not: 1) Authorize any deviation from the Contract Documents or substitution of materials or equipment (including "or -equal" items). 2) Exceed limitations of Engineer's authority as set forth in this Agreement or the Contract Documents. 3) Undertake any of the responsibilities of Contractor, subcontractors, suppliers, or Contractor's superintendent. 4) Advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor's work unless such advice or directions are specifically required by the Contract Documents. 5) Advise on, issue directions regarding, or assume control over safety precautions and programs in connection with the activities or operations of Owner or Contractor. 6) Participate in specialized field or laboratory tests or inspections conducted off -site by others except as specifically authorized by Engineer. 7) Accept Shop Drawing or Sample submittals from anyone other than Contractor. S) Authorize Owner to occupy the Project in whole or in part. D. Frequency of Construction Observation and Coordination 1. The frequency of construction observation and coordination is dependent on the Contractor's schedule, type of operation being performed, demonstrated quality of work, compliance with the plans and specifications, and site conditions. 2. The Engineer shall perform continuous or intermittent observation, as the Contractor's quality of work dictates, of the following typical construction activities expected for the Project: a. Laying of conduit b. Installing handholds c. Excavation and backfill. d. Placement of concrete for sidewalks & curbing e. Installing manholes. f. Placement of street flexible base and asphalt stabilized base g. Placement of hot -mix asphaltic -cement concrete pavement. A-11 h. Placement of Portland cement concrete paving, curb and gutter, driveways, wheelchair ramps, and sidewalk. i. Traffic control device placement E. Post -Construction Period Services 1. Record Drawings. Prepare record drawings from information and drawing markups supplied by Contractor. F. Deliverables 1. One reproducible set of record drawings delivered to Owner. 2. One non -reproducible set of record drawings delivered to Owner. 3. Compact discs containing the electronic files of the record drawings delivered to Owner. 4. One set of RPR inspection logs delivered to Owner. 5. Owner copies of Contractor submittals. 6. Owner copies of test results. 7. Original wage rate logs (certified payroll) from Contractor. G. Supplemental Construction Period Services None, H. Limitation of Responsibilities. Engineer shall not be responsible for the acts or omissions of any Contractor, or of any of their subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work on behalf of the Contractor. Engineer shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. I11. ADDITIONAL SERVICES A. At the request of the Owner, the Engineer will provide Additional Services as included herein or upon agreement between Owner and the Engineer defining the extent of such Additional Services and the amount and manner in which Engineer will be compensated for such Additional Services. B. Additional Services may include, but are not limited to: 1. Providing construction, property or other special field surveys. 2. Construction materials testing services beyond spot checking of the work. 3. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. 4. Excessive presence on the project. A-12 C. Any work requested by the Owner that is not included in one of the items listed in any other place will be classified as Additional Services. D. Additional services may be authorized by a notice -to -proceed in writing from the City Engineer and addressed to the Engineer, A-13 Resolution No. 2012—R0037 ATTACHMENT B TO AGREEMENT FOR CONSTRUCTION PERIOD ENGINEERING SERVICES Owner: Project # COMPENSATION BASIC SERVICES For these services covered by this Agreement, the Owner agrees to pay the Engineer as follows; A. GENERAL 1. The Engineer will be paid on an hourly rate basis shown in Table B-i and subcontract personnel services will be billed at cost. Engineer and subcontractor reimbursable expenses will be billed at cost plus 15 percent surcharge, Reimbursable expenses are shown in Table B-1. 2. The Engineer agrees to use its best efforts to perform services as defined herein within the billing limits stated below. 3. It is understood and agreed that the maximum billings of each of the items listed below are based on the start of Services being authorized no later than 01 /15/2012 and are also contingent on the construction Contractor's diligent prosecution of the Work. If start of Basic Services is not authorized by date given, it is understood and agreed that the upper billing limit will be adjusted accordingly by a supplement to this Agreement. 4. Monthly payments shall be made to the Engineer by the Owner based on Engineer's statement. The statement shall be itemized to indicate the amount of work performed and the associated reimbursable expenses and subcontract costs. 5. The uncontested amount of each statement shall be due and payable upon receipt by the Owner. Carrying charges of 1-1/2 percent per month from the billing date shall be due for accounts that are not paid within 45 days after the billing date. 6. The Engineer shall keep records on the basis of generally accepted accounting practices of costs and expenses and which records shall be available for inspection by Owner during normal business hours. 7. The Engineer shall provide adequate resources to complete the services described herein within the schedule established in Contract #10280, provided the construction Contractor completes the project within the same period of time starting with a notice -to -proceed to the Contractor. The attached schedule can be adjusted based on the actual date of the Owner's notice -to -proceed and subsequent time extensions given to Contractor. 6-1 B. BASIC CONSTRUCTION PERIOD ENGINEERING SERVICES 1. The maximum billed for Basic Construction Period Engineering Services including personnel services and reimbursable expenses for the Engineer and Subcontractors is shown as follows: TOTAL BASIC CONSTRUCTION PERIOD SERVICES NOT TO EXCEED $176,720 WITHOUT AUTHORIZATION 2, The Engineer shall start the performance of the Basic Construction Period Services within ten (10) days of receipt of notice to proceed and will complete the Basic Construction Period Services within the schedule established by the Owner, contingent on the construction Contractor's prosecution of the work. C. ADDITIONAL SERVICES Additional services must be authorized in writing by the Owner. 1. The maximum billed for Additional Services will be determined by mutual consent before the Additional Services are authorized by the Owner. 2. The Engineer shall start the performance of the authorized Additional Services within ten (10) days of the receipt of notice -to -proceed and will complete the Additional Services within the time period determined by mutual consent before the Additional Services are authorized by the Owner. Resolution No. 2012--R0037 Table B-1 2012 STANDARD BILLING RATES 01/01/2012 BILLING CLASSIFICATION 2012 RATE EMPLOYEE Partner 5 160 Steve Partner 4 152 Mike, Greg, Donny, Travis, Lonnie, Monte Partner 3 144 Partner 2 136 Partner 1 128 Senior Professional Engineer 5 160 Senior Professional Engineer 4 152 Les Senior Professional Engineer 3 144 Senior Professional Engineer 2 136 Senior Professional Engineer 1 128 Associate Professional Engineer 5 133 Associate Professional Engineer 4 126 Marty Associate Professional Engineer 3 119 Associate Professional Engineer 2 112 Associate Professional Engineer 1 105 Graduate Engineer 5 105 Michael Graduate Engineer 4 99 Graduate Engineer 3 93 Graduate Engineer 2 87 Jerrod, Joseph Graduate Engineer 1 81 Mark, Chris W., Cody, Travis K. Senior Staff 7 129 Gene Senior Staff 6 123 Catt Senior Staff 5 117 Senior Staff 4 111 Senior Staff 105 Senior Staff 2 99 Senior Staff 1 93 Chris P. Construction Services 5 90 Galen, Gene Construction Services 4 86 George, Lee, David Construction Services 3 82 Gale Construction Services 2 78 Construction Services 1 74 Senior Technician 5 89 Randy, Luis, Pete, Heath Senior Technician 4 85 Senior Technician 3 81 Johnnie Senior Technician 2 77 B-3 Senior Technician 1 73 Lead Technician 5 73 Lead Technician 4 70 Celeste Lead Technician 3 67 Joe, Sammy Lead Technician 2 64 Lead Technician 1 61 Associate Technician 5 63 Holly Associate Technician 4 60 Michele Associate Technician 3 57 Associate Technician 2 54 Associate Technician 1 51 Administrative Assistant 5 62 Administrative Assistant 4 59 An ie Administrative Assistant 3 56 Kristen Administrative Assistant 2 53 Cindy Administrative Assistant 1 50 B-4 2012 STANDARD RATE SHEET ATTACHMENT SPECIAL CHARGES AND ADDERS (1 / 1 /2012 through 12/31 /2012) Overtime Billing rate times 1.5 multiplier Per Diem $125.00 per day Expenses Actual out-of-pocket Mileage On Road IRS allowable Off Road IRS allowable plus $0.04 4-Wheeler $75.00 per day GPS (Survey Quality) $350.00 per day Ranger $250.00 per day Relay Test Equipment $500.00 per day $1,800.00 per Substation checkout (Omicron) NOTE: Billing of specialty charges may include a 10% administration fee. NOTE: Specialty rates may be applicable for Forensic, Wind, and System Protection services as determined by SGS Engineering on a project basis. These rates are available upon request B-5 RPR Budget Labor Managing Partner Partner Senior PE Graduate Engineer Resident Project Representative Senior Technician (including survey) Lead Technician Associate Technician Administrative Assistant Reimbursable Expenses Vehicle Expense Miscellaneous Labor Total Reimbursable Total Total Budget Rate Hours Estimated Costs $160 $152 $152 $105 $ 86 $ 89 $ 70 $ 63 $ 59 40 40 40 80 1400 120 40 40 40 $6,400 $6,080 $6,080 $8,400 $120,400 $10,680 $2,800 $2,520 $2,360 $165,720 $3,500 $7,500 $1 1,000 $176,720 Resolution No. 2012—R0037 ATTACHMENT C TO AGREEMENT FOR ENGINEERING SERVICES Owner: City of Lubbock, Texas Project: OWNER'S RESPONSIBILITIES The Owner will furnish, as required by the work and not at the expense of the Engineer, the following items: 1. Access to all maps, drawings, reports, records, audits, annual reports and other data that are available in the files of the Owner and which may be useful in the work involved under this Contract. 2. Secure permission to enter upon public and private property when required in performance of the Engineer's services Access to existing property, boundary, easement, right-of-way, utility surveys and property descriptions. 4. Full disclosure of facts and circumstances regarding the Project actually known by Owner. 5. A Project Manager fully acquainted with the Project who has authority to approve changes in the Project within the delegated authority of the Project Manager, render decisions promptly, and furnish information in a reasonable time frame. It is recognized that certain changes or decisions will require City Manager and/or City Council approval. 6. Pay all costs for advertising and reproduction incident to advertising public meetings except for those public meetings advertisements which the Engineer is obligated to perform on Basic authorized Supplemental Services. 7. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by Engineer, obtain advice of an attorney, insurance counselor and other consultants as Owner deems appropriate for such examination, and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of Engineer. 8. Provide such legal accounting, independent cost estimating and insurance counseling services as may be required for the Project and such auditing services as Owner may require to ascertain how or for what purpose any contractor has used the monies paid to him under the construction contract. C-1 9. Give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of any defect in the Project 10. Cooperate with Engineer in securing preliminary approvals and consensus from the governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. 11. Give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of a hazardous environmental condition or of any other development that affects the scope or time of performance of Engineer's services, or any defect or nonconformance in Engineer's services or in the work of any Contractor. 12. if Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to represent Owner at the Site, define the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of Engineer. 13. Bear all costs incident to compliance with the requirements of this attachment C. C-2 Resolution No. 2012—R0037 ATTACHMENT D ENGINEER'S RESPONSIBILITIES 1. The Engineer's responsibilities under this agreement are shown in Attachment A for Basic Construction Period Services. D-1