HomeMy WebLinkAboutResolution - 2007-R0536 - Amendment To Agreement - Parkhill, Smith & Cooper Inc. - 11/20/2007Resolution No. 2007-80536
November 20, 2007
Item No. 5.21
RESOLUTION
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
rected to execute for and on behalf of the City of Lubbock, a First Amendment of
,ofessional Services Agreement between the City of Lubbock and Parkhill, Smith &
ooper, Inc. Said First Amendment of Professional Services Agreement is attached
,reto and incorporated in this Resolution as if fully set forth herein and shall be included
the minutes of the Council.
assed by the City Council this
TTEST:
City Secretary
APPROVED AS TO CONTENT:
20th day of November
Toin ams, Deputy City Manager
APPROVED AS TO FORM:
2007.
DAVID A. MILLER, MAYOR
,ssionalServs
Resolution No. 2007-RO536
FIRST AMENDMENT
OF
PROFESSIONAL SERVICES AGREEMENT
This First Amendment of Professional Services Agreement ("First Amendment")
is entered into this 20th day of November , 2007, by and between the City
of Lubbock (the "City"), a Texas home rule municipal corporation, and Parkhill, Smith &
Cooper, Inc. (the "Engineer"), a professional engineering corporation.
WITNESSETH
WHEREAS, pursuant to that certain Professional Services Agreement ("Original
Agreement"), dated on or about August 24, 2006, Resolution No. 2006-R0412, the City
and Engineer entered into an agreement regarding professional engineering services
related to the development of the Lake Alan Henry Water Transmission Pipeline, Pump
Stations, Water Treatment Facility and Related Projects as outlined in RFQ# 06 -712 -BM
(the "Activities");
WHEREAS, a portion of the funds utilized to compensate Engineer for the
services set forth in the Original Agreement are grant funds obtained by the City from the
Environmental Protection Agency of the United States ("EPA");
WHEREAS, due to the receipt and funding of such grant funds, the EPA has
required that certain contractual provisions be added as an addendum to the Original
Agreement;
WHEREAS, due to such requirement of the EPA, the Engineer is amenable to the
addition of such contractual obligations.
NOW, THEREFORE, for and in consideration of the mutual provisions,
covenants and agreements by City and Engineer, the receipt and sufficiency of which
being herein acknowledged, Engineer and City now desire to amend the Original
Agreement as follows:
1. Addendum "A", attached hereto, is made a part of the Original Agreement
the same as if such Addendum had been made a part of the Original
Agreement as of August 24, 2006.
2. Except as amended hereby, the Original Agreement shall remain valid and
subsisting as originally provided.
Parkhill, Smith & Cooper, Inc.
By:
N : John S. Kelley, P.E.
Title: Firm Principal/Project Manager
CITY OF LUBBOCK
ATTEST:
ebecca rza, City Secretary
APPROVED AS TO CONTENT:
r
(�LThoma�sAdams, Deputy City Manager
APPROVED AS TO FORM:
Richard K. Casner,
First Assistant City Attorney
Cityatt/Richard/ProfessionalSmicesAgreement-PSC Inc-LAHAAAmend
October 31, 2007
Resolution No. 2007-RO536
Addendum "A"
For the purpose of this Addendum "A", the term "recipient" shall have the same meaning
as "City", and the term "contractor" shall have the same meaning as "Engineer", as set
forth in the Original Agreement.
1. SUPERSESSION
The recipient and the contractor agree that this and other appropriate clauses in 40 CFR
31.36(1) apply to that work eligible for EPA assistance to be performed under this
contract and that these clauses supersede any conflicting provisions of this contract.
2. PRIVITY OF CONTRACT
This contract is expected to be funded in part with funds from the U.S. Environmental
Protection Agency. Neither the United States nor any of its departments, agencies or
employees is, or will be, a party to this contract or any lower tier contract. This contract
is subject to the applicable EPA procurement regulations in effect on the date of the
assistance award for this project.
3. CHANGES
(a) The following clause applies only to contracts for construction.
(1) The recipient may at any time, without notice to any surety, by written order,
make any change in the work within the general scope of the contract, including
but not limited to changes:
(i) In the specifications (including drawings and designs);
(ii) In the time, method or manner of performance of the work;
the recipient is responsible, the equitable adjustment shall include any
increased cost the contractor reasonably incurred in attempting to
comply with those defective specifications.
(5) If the contractor intends to assert a claim for an equitable adjustment under this
clause, the contractor must, within 30 days after receipt of a written change order under
paragraph (a)(1) or the furnishing of a written notice under paragraph (a)(2), submit a
written statement to the recipient setting forth the general nature and monetary extent of
such claim. The recipient may extend the 30 -day period. The contractor may include the
statement of claim in the notice under paragraph (2) of this changes clause.
(6) No claim by the contractor for an equitable adjustment shall be allowed if made after
final payment under this contract.
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(b) The following clause applies only to contracts for services.
(1) The recipient may at any time, by written order and without notice to the sureties,
make changes within the general scope of this contract in the services or work to be
performed. If such changes cause an increase or decrease in the contractor's cost or time
required to perform any services under this contract, whether or not changed by any
order, the recipient shall make an equitable adjustment and modify this contract in
writing. The contractor must assert any claim for adjustment under this clause in writing
within 30 days from the date it receives the recipient's notification of change, unless the
recipient grants additional time before the date of final payment.
(2) No claim by the contractor for an equitable adjustment shall be allowed if made after
final payment under this contract.
(3) No services for which the contractor will charge an additional compensation shall be
furnished without the written authorization of the recipient.
(c) the following clause applies only to contracts for supplies.
(1) The recipient may at any time, by written order and without notice to the sureties,
make changes within the general scope of this contract in any one or more of the
following:
(i) Drawings, designs or specifications where the supplies to be furnished are
specifically manufactured for the recipient;
(ii) Method of shipment or packing; and
(iii) Place of delivery.
(2) If any changes cause an increase or decrease in the cost or time required to perform
any part of the work under this contract, whether or not changed by such order, the
recipient shall make an equitable adjustment in the contract price or delivery schedule, or
both, and modify the contract in writing. The contractor must assert any claim for
adjustment under this clause within 30 days from the date the contractor receives the
recipient's notification of change. If the recipient decides that the facts justify such
action, the recipient may receive and act upon any such claim asserted at any time before
final payment under this contract. where the cost of property made obsolete or excess as
a result of a change is included in the contractor's claim for adjustment, the recipient has
the right to prescribe the manner of disposition of such property.
Nothing in this clause shall excuse the contractor from proceeding with the contract as
changed.
(3) No claim by the contractor for an equitable adjustment shall be allowed if made after
final payment under this contract.
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4. DIFFERING SITE CONDITIONS
The following clause applies only to construction contracts.
The contractor shall promptly, and before such conditions are disturbed, notify the
recipient in writing of:
Subsurface or latent physical conditions at the site differing materially from those
indicated in this contract, or
Unknown physical conditions at the site, of an unusual nature, differing materially
from those ordinarily encountered and generally recognized as inhering in work of the
character provided for in this contract.
The recipient shall promptly investigate the conditions. If it finds that conditions
materially differ and will cause an increase or decrease in the contractor's cost or the time
required to perform any part of the work under this contract, whether or not changed as a
result of such conditions, the recipient shall make an equitable adjustment and modify the
contract in writing.
No claim of the contractor under this clause shall be allowed unless the contractor
has given the notice required in paragraph (a) of this clause. However, the recipient may
extend the time prescribed in paragraph (a).
No claim by the contractor for an equitable adjustment shall be allowed if asserted
after final payment under this contract.
5. SUSPENSION OF WORK
The following clause applies only to construction contracts.
(a) The recipient may order the contractor in writing to suspend, delay or interrupt all or
any part of the work for such period of time as the recipient may determine to be
appropriate for the convenience of the recipient.
(b) If the performance of all or any part of the work is suspended, delayed or interrupted
for an unreasonable period of time by an act of the recipient in administration of this
contract, or by the recipient's failure to act within the time specified in this contract (or if
no time is specified, within a reasonable time), the recipient shall make an adjustment for
any increase in the cost of performance of this contract (excluding profit) necessarily
caused by such unreasonable suspension, delay or interruption and modify the
subagreement in writing. However, no adjustment shall be made under this clause for any
suspension, delay or interruption to the extent (1) that performance would have been so
suspended, delayed or interrupted by any other cause, including the fault or negligence of
the contractor, or (2) for which an equitable adjustment is provided for or excluded under
any other provision of this contract.
(c) No claim under this clause shall be allowed (1) for any costs incurred more than 20
days before the contractor notified the recipient in writing of the act, or failure to act,
involved (this requirement does not apply to a claim resulting from a suspension order),
and (2) unless the amount claimed is asserted in writing as soon as practicable after the
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termination of such suspension, delay or interruption, but not later than the date of final
payment under the contract.
6, TERMINATION
The followine clause applies only to contracts over $10,000.
(a) This contract may be terminated in whole or in part in writing by either party in the
event of substantial failure by the other party to fulfill its obligations under this contract
through no fault of the terminating party, provided that no termination may be effected
unless the other party is given (1) not less than ten (10) calendar days' written notice
(delivered by certified mail, return receipt requested) of intent to terminate, and (2) an
opportunity for consultation with the terminating party prior to termination.
(b) This contract may be terminated in whole or in part in writing by the recipient for its
convenience, provided that the contractor is given (1) not less than ten (10) calendar days'
written notice (delivered by certified mail, return receipt requested) of intent to terminate,
and (2) an opportunity for consultation with the terminating party prior to termination.
(c) If termination for default is effected by the recipient, an equitable adjustment in the
price provided for in this contract shall be made, but (1) no amount shall be allowed for
anticipated profit on unperformed services or other work, and (2) any payment due to the
contractor at the time of termination may be adjusted to cover any additional costs to the
recipient because of the contractor's default. If termination for default is effected by the
contractor, or if termination for convenience is effected by the recipient, the equitable
adjustment shall include a reasonable profit for services or other work performed. The
equitable adjustment for any termination shall provide for payment to the contractor for
services rendered and expenses incurred prior to the termination, in addition to
termination settlement costs reasonably incurred by the contractor relating to
commitments which had become firm prior to the termination.
(d) Upon receipt of a termination action under paragraphs (a) or (b) above, the contractor
shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and
(2) deliver or otherwise make available to the recipient all data, drawings, specifications,
reports, estimates, summaries and such other information and materials as may have been
accumulated by the contractor in performing this contract, whether completed or in
process.
(e) Upon termination under paragraphs (a) or (b) above, the recipient may take over the
work and may award another party a contract to complete the work under this contract.
(f) If, after termination for failure of the contractor to fulfill contractual obligations, it is
determined that the contractor had not failed to fulfill contractual obligations, the
termination shall be deemed to have been for the convenience of the recipient. In such
event, adjustment of the subagreement price shall be made as provided in paragraph (c)
of this clause.
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7. REMEDIES
This clause applies only to contracts over $25,000.
Unless otherwise provided in this contract, all claims, counter -claims, disputes and other
matters in question between the recipient and the contractor arising out of, or relating to,
this contract or the breach of it will be decided, if the parties mutually agree, by
arbitration, mediation, or other alternative dispute resolution mechanism; or in a court of
competent jurisdiction within the State in which the recipient is located.
$. PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA
NOTE - The following clause applies to (1) any contract negotiated between the
recipient and its contractor in excess of $100,000; (2) negotiated contract amendments
or change orders in excess of $100,000 affecting the price of a formally advertised,
competitively awarded, fixed price contract -or (3) any lower tier contract or purchase
order in excess o $100,000 under a contract other than a formally advertised
competitively awarded, fixed price contract. This clause does not apply to contracts
awarded on the basis of effective price competition.
The contractor and subcontractor, where appropriate, assure that the cost and
pricing data submitted for evaluation with respect to negotiation of prices for negotiated
contracts, lower tier contracts and change orders is based on current, accurate and
complete data supported by their books and records. If the recipient or EPA determines
that any price (including profit) negotiated in connection with this contract, lower tier
contract or amendment thereunder was increased by any significant sums because the
data provided was incomplete, inaccurate or not current at the time of submission, then
such price or cost or profit shall be reduced accordingly and the recipient shall modify the
contract in writing to reflect such action.
Failure to agree on a reduction shall be subject to the remedies clause of this
contract.
NOTE - Since the contract is subject to reduction under this clause by reason_ of
defective cost or pricing data submitted in connection with lower tier contracts, th
contractor may wish to include a clause in each lower tier contract requiring the lower
tier contractor to appropriately indemnify the contractor. It is expected that any lower
tier contractor subiect to such indemnification will generally require substantially
similar indemnification for defective cost and pricing data submitted by lower tier
rn"trartnre
9. AUDIT; ACCESS TO RECORDS
(a) The contractor shall maintain books, records, documents and other evidence directly
pertinent to performance on EPA funded work under this contract in accordance with
generally accepted accounting principles and practices consistently applied, and the
applicable EPA regulations in effect on the date of execution of this contract. The
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contractor shall also maintain the financial information and data used in the preparation
or support of any cost submission required under applicable regulations for negotiated
contracts or change orders and a copy of the cost summary submitted to the recipient. The
United States Environmental Protection Agency, the Comptroller General of the United
States, the United States Department of Labor, the recipient, and [the State] or any of
their authorized representatives shall have access to all such books, records, documents
and other evidence for the purpose of inspection, audit and copying during normal
business hours. The contractor will provide proper facilities for such access and
inspection.
(b) If this is a fixed price contract awarded through sealed bidding or otherwise on the
basis of effective price competition, the contractor agrees to make paragraphs (a) through
(g) of this clause applicable to all negotiated change orders and contract amendments
affecting the contract price. In the case of all other types of prime contracts, the
contractor agrees to make paragraphs (a) through (g) applicable to all contract awards in
excess of $10,000, at any tier, and to make paragraphs (a) through (g) of this clause
applicable to all change orders directly related to project performance.
(c) Audits conducted under this provision shall be in accordance with generally accepted
auditing standards and with established procedures and guidelines of the reviewing or
audit agency(ies).
(d) The contractor agrees to disclose all information and reports resulting from access to
records under paragraphs (a) and (b) of this clause to any of the agencies referred to in
paragraph (a).
(e) Records under paragraphs (a) and (b) above shall be maintained by the contractor
during performance on EPA assisted work under this contract and for the time periods
specified in 40 CFR part 31. In addition, those records which relate to any controversy
arising under an EPA assistance agreement, litigation, the settlement of claims arising out
of such performance or to costs or items to which an audit exception has been taken shall
be maintained by the contractor for the time periods specified in 40 CFR part 31.
(f) Access to records is not Iimited to the required retention periods. The authorized
representatives designated in paragraph (a) of this clause shall have access to records at
any reasonable time for as long as the records are maintained.
(g) This right of access clause applies to financial records pertaining to all contracts
(except for fixed price contracts awarded through sealed bidding or otherwise on the
basis of effective price competition) and all contract change orders regardless of the type
of contract, and all contract amendments regardless of the type of contract. In addition
this right of access applies to all records pertaining to all contracts, contract change
orders and contract amendments:
(1) To the extent the records pertain directly to contract performance
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(2) If there is any indication that fraud, gross abuse or corrupt practices may be
involved; or
(3) If the subagreement is terminated for default or for convenience.
10. COVENANT AGAINST CONTINGENT FEES
The contractor assures that no person or selling agency has been employed or
retained to solicit or secure this contract upon an agreement or understanding for a
commission, percentage, brokerage or contingent fee excepting bona fide employees or
bona fide established commercial or selling agencies maintained by the contractor for the
purpose of securing business. For breach or violation of this assurance, the recipient shall
have the right to annul this agreement without liability or, at its discretion, to deduct from
the contract price or consideration, or otherwise recover the full amount of such
commission, percentage, brokerage or contingent fee.
11. GRATUITIES
If the recipient finds after a notice and hearing that the contractor or any of the
contractor's agents or representatives offered or gave gratuities (in the form of
entertainment, gifts or otherwise) to any official, employee or agent of the recipient, the
State or EPA in an attempt to secure a contract or favorable treatment in awarding,
amending or making any determinations related to the performance of this contract, the
recipient may, by written notice to the contractor, terminate this contract. The recipient
may also pursue other rights and remedies that the law or this contract provides.
In the event this contract is terminated as provided in paragraph (a), the recipient
may pursue the same remedies against the contractor as it could pursue in the event of a
breach of the contract by the contractor, and as a penalty, in addition to any other
damages to which it may be entitled by law, be entitled to exemplary damages in an
amount (as determined by the recipient) which shall be not less than three nor more than
ten times the costs the contractor incurs in providing any such gratuities to any such
officer or employee.
12. BUY AMERICAN
This clause applies only to construction contracts award under 40 CFR Part 35,
Subparts E and L
In accordance with Section 215 of the Clean Water Act (33 U.S.C. 1251 et. seq.)
and 40 CFR 31.36(c)(5), the contractor agrees that preference will be given to domestic
construction material by the contractor, subcontractors, materialmen and supplies in the
performance of this contract.
13. RESPONSIBILITY OF THE CONTRACTOR
(a) The following clause applies only to subagreeinents for services.
ILI
(1) The contractor is responsible for the professional quality, technical accuracy, timely
completion and coordination of all designs, drawings, specifications, reports and other
services furnished by the contractor under this contract. If the contract involves
environmental measurements or data generation, the contractor shall comply with EPA
quality assurance requirements in 40 CFR 31.45. The contractor shall, without additional
compensation, correct or revise any errors, omissions or other deficiencies in his designs,
drawings, specifications, reports and other services.
(2) The contractor shall perform the professional services necessary to accomplish the
work specified in this contract in accordance with this contract and applicable EPA
requirements in effect on the date of execution of the assistance agreement for this
project..
(3) The owner's or EPA's approval of drawings, designs, specifications, reports and
incidental work or materials furnished shall not in any way relieve the contractor of
responsibility for the technical adequacy of his work. Neither the owner's nor EPA's
review, approval, acceptance or payment for any of the services shall be construed as a
waiver of any rights under this agreement or of any cause for action arising out of the
performance of this contract.
(4) The contractor shall be, and shall remain, liable in accordance with applicable law for
all damages to the owner or EPA caused by the contractor's negligent performance of any
of the services furnished under this contract, except for errors, omissions or other
deficiencies to the extent attributable to the owner, owner -furnished data or any third
party. The contractor shall not be responsible for any time delays in the project caused by
circumstances beyond the contractor's control.
(5) The contractor's obligations under this clause are in addition to the contractor's other
express or implied assurances under this contract or State law and in no way diminish any
other rights that the owner may have against the contractor for faulty materials,
equipment or work.
(h) The following clause applies only to contracts for construction.
(1) The contractor agrees to perform all work under this contract in accordance with this
agreement's designs, drawings and specifications.
(2) The contractor guarantees for a period of at least one (1) year from the date of
substantial completion of the work that the completed work is free from all defects due to
faulty materials, equipment or workmanship and that he shall promptly make whatever
adjustments or corrections which may be necessary to cure any defects, including repairs
of any damage to other parts of the system resulting from such defects. The owner shall
promptly give notice to the contractor of observed defects. In the event that the contractor
fails to make adjustments, repairs, corrections or other work made necessary by such
defects, the owner may do so and charge the contractor the cost incurred. The
performance bond shall remain in full force and effect through the guarantee period.
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(3) The contractor's obligations under this clause are in addition to the contractor's other
express or implied assurances under this contract or State law and in no way diminish any
other rights that the owner may have against the contractor for faulty materials,
equipment or work.
14. FINAL PAYMENT
Upon satisfactory completion of the work performed under this contract, as a
condition before final payment under this contract or as a termination settlement under
this contract the contractor shall execute and deliver to the owner a release of all claims
against the owner arising under, or by virtue of, this contract, except claims which are
specifically exempted by the contractor to be set forth therein. Unless otherwise provided
in this contract, by State law or otherwise expressly agreed to by the parties to this
contract, final payment under this contract or settlement upon termination of this contract
shall not constitute a waiver of the owner's claims against the contractor or his sureties
under this contract or applicable performance and payment bonds.
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