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HomeMy WebLinkAboutResolution - 2017-R0032 - Freese And Nichols, Inc. - 01/26/2017Resolution No. 2017-R0032 Item No. 6.18 January 26, 2017 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 for and on behalf of the City of Lubbock, an Agreement for a Professional Service Contract for Construction Phase Services for the Northwest Lubbock Drainage Improvement Project, Phase 2, by and between the City of Lubbock and Freese and Nichols, Inc., and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on _ Januaa 26, 2017 DANIEL M. P PE, MAYOR ATTEST: I Q-Ae.'4�' k Re cca Garza, City Secr tary VED AS; J) CONTENT: lin, P.E., Director of Public Works J nnifer vidson, P.E., Stormwater Engineer APPROVED AS TO FORM: lli Leisu-A�� re, Assistant City Attorney RES. PS -Contract -Freese and Nichols, Inc. 1.10.17 Resolution No. 2017-R0032 PROFESSIONAL SERVICES CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract, (the "Contract' or "Agreement'), effective as of the -26t0ay of janual�l , 2017 (the "Effective Date"), is by and between the City of Lubbock, (the "CITY"), a Texas home rule municipal corporation, and Freese and Nichols, Inc., ("CONSTRUCTION REPRESENTATIVE") a Texas professional corporation authorized to conduct business in Texas. WITNESSETH WHEREAS, the City desires to obtain construction phase professional engineering services related to the Construction Representation of the Northwest Lubbock Drainage Improvements Phase 2 Project (the "Activities"); WHEREAS, CONSTRUCTION REPRESENTATIVE has a professional staff experienced and is qualified to provide professional engineering services related to the Activities, and will provide the Services, as defined below, for the price provided herein, said price stipulated by CITY and CONSTRUCTION REPRESENTATIVE to be a fair and reasonable price; and WHEREAS, the CITY desires to contract with CONSTRUCTION REPRESENTATIVE to provide professional engineering services related to the Activities and CONSTRUCTION REPRESENTATIVE desires to provide the Services related to same. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Contract, the CITY and CONSTRUCTION REPRESENTATIVE hereby agree as follows: ARTICLE I. TERM The term of this Contract commences on the Effective Date and continues without interruption for a term of 36 months. If the CONSTRUCTION REPRESENTATIVE determines that additional time is required to complete the Services, the CITY Engineer, may in his discretion, but is not obligated to, execute an agreement to grant up to an additional six (6) months of time to complete the Services so long as the amount of the monetary consideration does not increase. An amendment to this Agreement resulting in an increase in the amount of the monetary consideration must be approved by the CITY acting through its governing body. Page 1 of 21 ARTICLE II. SERVICES AND COMPENSATION A. CONSTRUCTION REPRESENTATIVE shall conduct all activities and within such timeframes as set forth on Exhibit "A," attached hereto (the "Services"). B. CONSTRUCTION REPRESENTATIVE shall receive as consideration to be paid for the performance of the Services set forth in the Basic Services, and if directed by CITY, the Additional Services and/or Special Services, based on hourly rates, not to exceed $1,797,124.00 per Exhibit "A," Exhibit "B," and Exhibit "C." ARTICLE III. TERMINATION A. General. CITY may terminate this Contract, for any reason or convenience, upon thirty (30) days written notice to CONSTRUCTION REPRESENTATIVE. In the event this Agreement is so terminated, the CITY shall only pay CONSTRUCTION REPRESENTATIVE for services actually performed by CONSTRUCTION REPRESENTATIVE up to the date CONSTRUCTION REPRESENTATIVE is deemed to have received notice of termination as provided herein. B. Termination and Remedies. In the event CONSTRUCTION REPRESENTATIVE breaches any term and/or provision of this Contract, the CITY shall be entitled to exercise any right or remedy available to it by this Contract, at law, equity, or otherwise, including without limitation, termination of this Contract 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 document, this provision shall control. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. CONSTRUCTION REPRESENTATIVE 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. Page 2 of 21 B. Corporate Power. CONSTRUCTION REPRESENTATIVE has the corporate power to enter into and perform this Contract and all other activities contemplated hereby. C. Authorization. Execution, delivery, and performance of this Contract and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of CONSTRUCTION REPRESENTATIVE. This Contract constitutes legal, valid, and binding obligations of the CONSTRUCTION REPRESENTATIVE and is enforceable in accordance with the terms thereof. D. Construction Representative. CONSTRUCTION REPRESENTATIVE maintains a professional staff and employs, as needed, other qualified specialists experienced in providing the Services, and are familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the Activities contemplated hereby. E. Performance. CONSTRUCTION REPRESENTATIVE will and shall conduct all activities contemplated by this Contract in accordance with the standard of care, skill and diligence normally provided by a professional person in performance of similar professional engineering services, and comply with all applicable laws, rules, and regulations, both state and federal, relating to professional engineering services, as contemplated hereby. F. Use of Copyrighted Material. CONSTRUCTION REPRESENTATIVE warrants that any materials provided by CONSTRUCTION REPRESENTATIVE for use by CITY pursuant to this Contract 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. CONSTRUCTION REPRESENTATIVE shall be solely responsible for ensuring that any materials provided by CONSTRUCTION REPRESENTATIVE pursuant to this Contract satisfy this requirement and CONSTRUCTION REPRESENTATIVE agrees to indemnify and hold CITY harmless from all liability or loss caused to CITY or to which CITY is exposed on account of CONSTRUCTION REPRESENTATIVE's failure to perform this duty. ARTICLE VI. SCOPE OF SERVICES CONSTRUCTION REPRESENTATIVE shall accomplish the following: Professional Construction Phase Engineering Services related to the Construction Management and Inspection of the Northwest Lubbock Drainage Improvements Project, Phase 2 as defined and provided in Exhibit 'A" "Scope of Services." Page 3 of 21 ARTICLE VII. INDEPENDENT CONTRACTOR STATUS CONSTRUCTION REPRESENTATIVE and CITY agree that CONSTRUCTION REPRESENTATIVE shall perform the duties under this Contract as an independent contractor and shall be considered as independent contractor under this Agreement and/or in its activities hereunder for all purposes. CONSTRUCTION REPRESENTATIVE 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, CONSTRUCTION REPRESENTATIVE and CONSTRUCTION REPRESENTATIVE'S employees and/or subconsultants, 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. ARTICLE VIII. INSURANCE CONSTRUCTION REPRESENTATIVE 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 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. CONSTRUCTION REPRESENTATIVE shall obtain and maintain in full force and effect during the term of this Agreement, and shall cause each approved subcontractor or subconsultant of CONSTRUCTION REPRESENTATIVE 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. All policies will be written on per 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: $1,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Page 4 of 21 CONSTRUCTION REPRESENTATIVE shall further cause any approved subcontractor or subconsultant to procure and carry, during the term of this Agreement, insurance coverage, as specified above for CONSTRUCTION REPRESENTATIVE, including without limitation protecting CITY against direct losses caused by the professional negligence of the approved subcontractor or subconsultant. 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. CONSTRUCTION REPRESENTATIVE 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 will be included in the Certificate. CONSTRUCTION REPRESENTATIVE shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, CONSTRUCTION REPRESENTATIVE 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 CONSTRUCTION REPRESENTATIVE maintains said coverage. The CONSTRUCTION REPRESENTATIVE 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, CONSTRUCTION REPRESENTATIVE fails to maintain the required insurance in full force and effect, CONSTRUCTION REPRESENTATIVE 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 CONSTRUCTION REPRESENTATIVE's sole cost and expense. The retroactive date shall be no later than the commencement of the performance of this Contract and the discovery period (possibly through tail coverage) shall be no less than ten (10) years after the completion of work specified in this Contract. The provisions of this Article VIII shall survive the termination or expiration of this Agreement. ARTICLE IX. EMPLOYMENT OF AGENTS/RETAINING OF CONSULTANTS CONSTRUCTION REPRESENTATIVE may employ or retain consultants, contractors, or third parties (any of which are referred to herein as "Subconsultant"), to perform certain duties of CONSTRUCTION REPRESENTATIVE, as set forth on Exhibit "A," attached hereto, under this Contract, provided that the CITY approves the retaining of Subconsultants. CONSTRUCTION REPRESENTATIVE is at all times responsible to CITY to perform the Services as provided in this Agreement and CONSTRUCTION REPRESENTATIVE is in no event relieved of any obligation under this Contract upon retainage of any approved Subconsultant. Any agent and/or Subconsultant retained and/or employed by CONSTRUCTION REPRESENTATIVE shall be required by CONSTRUCTION REPRESENTATIVE to Page 5 of 21 carry, for the protection and benefit of the CITY and CONSTRUCTION REPRESENTATIVE and naming said third parties as additional insureds, insurance as required of CONSTRUCTION REPRESENTATIVE, as described above in this Contract. CONSTRUCTION REPRESENTATIVE 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 CONSTRUCTION REPRESENTATIVE 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 CONSTRUCTION REPRESENTATIVE 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, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S 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 CONSTRUCTION REPRESENTATIVE, ITS AGENTS, EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS CONTRACT AND/OR THE USE OF 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 CONSTRUCTION REPRESENTATIVE 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 Contract, and any amendments thereto. ARTICLE XIII. NOTICE A. General. Whenever notice from CONSTRUCTION REPRESENTATIVE to CITY or CITY to CONSTRUCTION REPRESENTATIVE is required or permitted by this Contract 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, Page 6 of 21 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. CONSTRUCTION REPRESENTATIVE's Address. CONSTRUCTION REPRESENTATIVE's address and numbers for the purposes of notice are: Freese and Nichols, Inc. Attn: Heather Keister, P.E. 2732 82nd Street, Suite A Lubbock, TX 79423 Telephone:(806) 686-2700 Facsimile: (806) 686-2701 C. CITY's Address. The CITY's address and numbers for the purposes of notice are: City of Lubbock Attn: Jennifer Davidson, P.E. P. O. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775 — 2337 Facsimile: (806) 775 — 3074 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 Contract, 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 CITY shall furnish CONSTRUCTION REPRESENTATIVE non -confidential studies, reports, and other available data in the possession of the CITY pertinent to CONSTRUCTION REPRESENTATIVE'S Services, so long as CITY is entitled to rely on such studies, reports, and other data for the performance of CONSTRUCTION REPRESENTATIVE's Services under this Contract (the "Provided Data"). CONSTRUCTION REPRESENTATIVE shall be entitled to use and rely, so long as such reliance is reasonable, upon all such Provided Data. Page 7 of 21 ARTICLE XV. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Contract are inserted in this Contract strictly for the parties' convenience in identifying the provisions to this Contract and shall not be given any effect in construing this Contract. B. Audit. CONSTRUCTION REPRESENTATIVE shall provide access to its corporate books and records to the CITY. The CITY may audit, at its expense and during normal business hours, CONSTRUCTION REPRESENTATIVE's books and records with respect to this Contract between CONSTRUCTION REPRESENTATIVE and CITY. C. Records. CONSTRUCTION REPRESENTATIVE shall maintain records that are necessary to substantiate the Services provided by CONSTRUCTION REPRESENTATIVE. D. Assignability. CONSTRUCTION REPRESENTATIVE may not assign this Contract without the prior written approval of the CITY. E. Successor and Assigns. This Contract binds and inures to the benefit of the CITY and CONSTRUCTION REPRESENTATIVE, and in the case of CITY, its respective successors, legal representatives, and assigns, and in the case of CONSTRUCTION REPRESENTATIVE, its permitted successors and assigns. F. Construction and Venue. THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS CONTRACT 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 JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Contract is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstances, the remainder of this Contract 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 Contract shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Contract, and duly authorized and executed by CONSTRUCTION REPRESENTATIVE and CITY. Page 8 of 21 Entire Agreement. This Contract, including Exhibits "A," "B,", and "C," attached hereto, contains the entire agreement between the CITY and CONSTRUCTION REPRESENTATIVE, 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 CONSTRUCTION REPRESENTATIVE and the CITY. K. Documents Owned by CITY. Any and all documents, drawings and specifications prepared by CONSTRUCTION REPRESENTATIVE as part of the Services hereunder, shall become the property of the CITY when CONSTRUCTION REPRESENTATIVE has been compensated as set forth in Article II, above. The CONSTRUCTION REPRESENTATIVE shall make copies of any and all work products for its files. L. Notice of Waiver. A waiver by either CITY or CONSTRUCTION REPRESENTATIVE 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 CITY and CONSTRUCTION REPRESENTATIVE. N. Appropriation. All funds for payment by the CITY under this contract 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 goods or services provided under this Contract, the CITY will terminate the Contract, 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 Contract is spent, whichever event occurs first (the "Non -Appropriation Date"). If at any time funds are not appropriated for the continuance of this Contract, cancellation shall be accepted by the Seller on 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 Contract beyond the Non -Appropriation Date. Page 9 of 21 EXECUTED as of the Effective Date hereof. r_A611*11; Reb cca Garza, City Se APPROVED AS TO CONTENT: Michael G. Keenum, P.E., City Engineer ennifer Navidson, P.E., Storm Water Engineer APPROVED AS TO FORM: Kelli Leisure, Assistant City Attorney Page 10 of 21 CITY OF LUBBOCK Daniel M. Pope, ayor FREESE AND NICHOLS, INC. By: P' - Name: Lawrence P. Eckersley, Title: Principal FREESE AND NICHOLS, INC. EXHIBIT A This Exhibit A is part of the Agreement between Freese and Nichols, Inc. (FNI) (the "CONSTRUCTION REPRESENTATIVE") and the City of Lubbock (the "CITY") for a project generally described as: Northwest Lubbock Drainage Improvements Project, Phase 2 CONSTRUCTION PHASE SERVICES The purpose of this Agreement is to furnish services that are unique to the Construction Representative so that, in cooperation with the City's Engineer -Of -Record, complete construction phase services are provided. The professional services of the ENGINEER OF RECORD shall supplement the duties of the CONSTRUCTION REPRESENTATIVE contained in this agreement. The CITY shall procure these services by a separate CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT (herein called the "ENGINEER OF RECORD CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT") that provides primarily a limited number of site visits; attendance at progress and other meetings via teleconference; review of submittals, RFIs and proposed contract changes; and preparation of Record Drawings to the CITY. Said ENGINEER OF RECORD and the City shall execute the CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT independent of this contract. Upon said execution, the City shall provide a copy of the ENGINEER OF RECORD CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT to the Construction Representative. SCOPE OF SERVICES The Construction Representative agrees to furnish the City with the following services. 1. Construction Representative 1.1. The CONSTRUCTION REPRESENTATIVE for this project shall be Freese and Nichols, Inc. 2. Construction Phase Services Conditions 2.1. The CONSTRUCTION REPRESENTATIVE's responsibility to provide Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the end of the construction period for the project including startup, testing, and project closeout. Page 11 of 21 2.2. Construction Phase duties, responsibilities, and limitations of the CONSTRUCTION REPRESENTATIVE shall not be restricted, modified, or extended without agreement of the CITY and CONSTRUCTION REPRESENTATIVE in writing. 2.3. The CONSTRUCTION REPRESENTATIVE shall be a representative of and shall advise and consult the CITY during construction. The CONSTRUCTION REPRESENTATIVE shall have the authority to act on behalf of the CITY only to the extent provided in this Agreement unless otherwise modified by written instrument. 2.4. CONSTRUCTION REPRESENTATIVE's Personnel at Construction Site 2.4.1.The presence and duties of CONSTRUCTION REPRESENTATIVE's personnel at a construction site, whether as onsite representative or otherwise, do not make the CONSTRUCTION REPRESENTATIVE or its personnel in any way responsible for those duties that belong to the CITY per the CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT and/or construction contractors or other entities, and do not relieve the construction contractors or any other entity from their obligations, duties, and responsibilities, including, but not limited to, all construction methods, means, techniques, sequences, and procedures necessary for coordinating and completing all portions of the construction work in accordance with the contract documents and any health and/or safety precautions by such construction work. 2.4.2.The CONSTRUCTION REPRESENTATIVE and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health and/or safety precautions related to such work and have no duty for inspecting, noting, observing, correcting, or reporting on health and/or safety deficiencies of the construction contractors or other persons at the site except CONSTRUCTION REPRESENTATIVE's own personnel. 2.4.3. The limited presence of the CONSTRUCTION REPRESENTATIVE's personnel at a construction site is for the purpose of providing the CONSTRUCTION REPRESENTATIVE and the CITY a greater degree of confidence that the completed work will conform generally to the contract documents and that the integrity of the design concept, as reflected in the contract documents, has been implemented and preserved. The CONSTRUCTION REPRESENTATIVE neither guarantees the performance of any construction contractor nor assumes responsibility for contractor's failure to perform the work in accordance with the contract documents. 3. Engineer of Record Cooperation 3.1. The CONSTRUCTION REPRESENTATIVE will interface with CITY's selected ENGINEER OF RECORD per the CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT. Page 12 of 21 3.2. The CONSTRUCTION REPRESENTATIVE will communicate and coordinate with the ENGINEER OF RECORD per the CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT to accomplish the Construction Phase Services tasks identified in this scope of services which are supplemental to those included in the ENGINEER OF RECORD'S CONSTRUCTION PHASE PROFESSIONAL SERIVCES CONTRACT with the CITY. 3.3. The CONSTRUCTION REPRESENTATIVE shall receive data from the ENGINEER for entry into the online project management system. 3.4. The CONSTRUCTION REPRESENTATIVE shall supply project documentation to the ENGINEER OF RECORD for review and approval as the Engineer of Record per the CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT. 3.5. The CONSTRUCTION REPRESENTATIVE shall receive from the ENGINEER OF RECORD the timely response and necessary approvals to submittals, Requests for Information (RFI), Change Orders (CO), Contract Modification Requests (CMR), and all other project actions coordinated by the CONSTRUCTION REPRESENTATIVE. 3.6. The CONSTRUCTION REPRESENTATIVE shall administer the construction contract and manage communication, documentation, and correspondence while communicating and coordinating with the ENGEINEER per the CONSTRUCTION PHASE PROFESSIONAL 4. Specific Construction Representative Tasks 4.1. Provide construction management and administration tasks separate from and supplemental to those tasks being performed by the ENGINEER OF RECORD, in conjunction with the requirements of construction contract documents. 4.2. Communication - Establish communication procedures with the CITY, ENGINEER OF RECORD, and Contractor. Submit monthly reports of construction progress to CITY describing construction progress in general terms and summarize project costs, schedule, contract modifications, and major outstanding issues. 4.3. Schedule Management - Review baseline and monthly construction progress schedules prepared by the Contractor. Monitor progress of actual work completed relative to planned progress and address any identified schedule slippage or other anomalies with Contractor. 4.4. Cost Management - Review proposed schedule of values and payment request format prepared by Contractor. Establish procedure for review of monthly quantities of work in place and payment requests. Based on observations of ongoing construction during site visits, review payment requests and supporting documentation submitted by Contractor and determine the amount that is recommended Contractor be paid. Page 13 of 21 4.5. Document Management — Process Contractor submittals and provide for filing and retrieval of project documentation, including Texas Water Development Board monthly reports. Produce monthly reports indicating the status of submittals in the review process and monthly TWDB certifications. Perform initial cursory reviews of submittals when appropriate, and transmit submittals to ENGINEER OF RECORD and/or CITY for the detailed review and response. Monitor the progress of the Contractor in sending and processing submittals and of the ENGINEER OF RECORD in reviewing and responding to submittals, to verify that documentation is being processed properly and in a timely manner. 4.6. Issues Management — Provide initial interpretation of the drawings and specifications and coordinate with the ENGINEER OF RECORD to develop official interpretation for CITY and Contractor. Receive and evaluate notices of Contractor claims and make recommendations to the CITY on the merit and value of the claim on the basis of the information submitted by the Contractor. Endeavor to negotiate a settlement value with the Contractor on behalf of the CITY if appropriate. Mediation, arbitration, litigation and/or other related subsequent claims review assistance is not included in this scope of services. 4.7. Change Management - Establish procedures for administering constructive changes to the construction contract. Coordinate with the ENGINEER OF RECORD to get its technical review and approval of any design modifications. Process contract modifications and negotiate with the Contractor on behalf of the CITY to determine the cost and time impacts of these changes. Prepare change order documentation for approved changes for execution by the CITY. Prepare field orders where cost to OWNER or time is not impacted. 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 CITY are not included in this scope of services. 4.8. Quality Assurance — CONSTRUCTION REPRESENTATIVE 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, endeavor to protect the CITY against defects and deficiencies in the work of Contractor, and prepare a Daily Construction Report documenting daily activities including any observed deficiencies. Notify Contractor of non -conforming work observed, review quality related documents provided by the Contractor such as test reports, equipment installation reports or other documentation required by the construction contract documents. Coordinate the work of the materials testing laboratory required for the testing or inspection of materials. 4.9. Site Visits 4.9.1.The CONSTRUCTION REPRESENTATIVE for the Northwest Lubbock Drainage Improvements Phase 2 shall provide full time on-site construction representation for an Page 14 of 21 average of 40 hours per week for the first 4 weeks and last 4 weeks and 60 hours per week for 96 weeks during construction of the project for a total of 104 weeks observing construction progress and quality, and to verify in general if the work is proceeding in accordance with the construction contract documents. A second full time on-site construction representative will be provided 60 hours per week for 6 months during the course of construction, to observe construction progress and quality during periods where additional construction crews are present. 4.9.2.The CONSTRUCTION REPRESENTATIVE will communicate with the City's Project Manager and the ENGINEER OF RECORD when it is determined, and approved by the CITY, that the ENGINEER OF RECORD will visit the site, and will coordinate the visit with appropriate parties. 4.9.3.The CONSTRUCTION REPRESENTATIVE will coordinate with the City's Project Manager and the ENGINEER OF RECORD to schedule and conduct a visit by the ENGINEER OF RECORD to the site to perform a substantial completion observation for determining if the project was constructed in accordance with the plans and specifications. This visit will be scheduled after the facilities have been placed into service. The CONSTRUCTION REPRESENTATIVE will compile a list of items of work to be completed by contractor based on the observations performed by the CITY, the ENGINEER OF RECORD, and the CONSTRUCTION REPRESENTATIVE. 4.10.Meetings and Phone Conferences 4.10.1.Progress Meetings —The CONSTRUCTION REPRESENTATIVE will schedule and conduct 24 monthly progress meetings and conference calls. 4.10.2.Additional Phone Conferences — The CONSTRUCTION REPRESENTATIVE will schedule and conduct additional phone conferences as needed and directed by the CITY's Project Manager. 4.11.Record Drawings 4.11.1.Record drawings are defined as the set of drawings produced by the ENGINEER OF RECORD that incorporate modifications from the original design drawings made during the construction. Record Drawings shall reflect constructed facilities "as -built" based on the information provided by the Contractor and the CITY's CONSTRUCTION REPRESENTATIVE per the CONSTRUCTION PHASE PROFESSIONAL SERVICES CONTRACT. The CONSTRUCTION REPRESENTATIVE will review the contractor's as -built drawings on a regular basis to confirm that they are being updated promptly and Page 15 of 21 adequately. When construction is complete, the CONSTRUCTION REPRESENTATIVE will receive and review the as -built drawings from the contractor, and will then furnish these drawings, field notes, and other documents as needed to the ENGINEER OF RECORD for preparation of the Record Drawings that will reflect changes to the project made during construction. 5. Conservation of Funding 5.1. Budgeted fees calculated in each of the task categories listed above which go unused may be carried over into other task categories, but not applied to tasks outside the scope of this agreement. 5.2. All transfer for fees for services that go unused must be communicated in writing to the CITY's Project Manager. 5.3. All unused fees that are not transferred to other tasks are expected to be reflected on invoices as unspent budget. 6. Internet Based Construction Management 6.1. The CONSTRUCTION REPRESENTATIVE will provide, for use by the CITY, the ENGINEER OF RECORD and selected Contractor, an internet-based construction management system. This system will be FNi Manager, eBuilder, ProjectMates or approved equal. 6.2. The CONSTRUCTION REPRESENTATIVE will establish and maintain the project construction management system consistent with the requirements of the construction contract documents. The CONSTRUCTION REPRESENTATIVE will monitor the processing of contractor's submittals and provide for distribution, filing and retrieval of project documents, and provide monthly reports indicating the status of all submittals in the review process. 6.3. The CONSTRUCTION REPRESENTATIVE will monitor the progress of the Contractor in sending and processing submittals to see that documentation is being processed in accordance with schedules. 6.4. The CONSTRUCTION REPRESENTATIVE will provide password protected access to the system for CITY, ENGINEER OF RECORD, Contractor, and other parties as needed. 7. Additional Services 7.1. Additional services may be performed by the CONSTRUCTION REPRESENTATIVE, if authorized by the CITY, and include any services not specifically included in the proposed scope of services in this contract. Page 16 of 21 7.2. Additional services, which may be required by the CITY, shall be based on the actual hours and costs in accordance with Exhibit C. No work will be undertaken with this item without specific written authorization from the CITY. 8. Other Provisions 8.1. The CONSTRUCTION REPRESENTATIVE's compensation is based on immediate authorization to proceed and timely completion of the project. If the project timing deviates from the assumed schedule for causes beyond the CONSTRUCTION REPRESENTATIVE's control, the CONSTRUCTION REPRESENTATIVE reserves the right to request renegotiation of the rates for those portions affected by the time change according to the hourly rates listed in Exhibit C. Page 17 of 21 FREESE AND NICHOLS, INC. EXHIBIT B This Exhibit B is part of the Agreement between Freese and Nichols, Inc. (the "CONSTRUCTION REPRESENTATIVE") and the City of Lubbock (the "CITY") for a Project here in so called generally described as: Northwest Lubbock Drainage Improvements Project, Phase 2 1. Budget Amount by Scope Item for Basic Construction Representation Services: Item Task Name Hours Fee 1 Construction Contract Administration 368 $ 78,724 2 Site Visits 9,600 $1,261,920 3 Project Management 1,280 $ 250,880 4 Reimbursable Expenses $ 205,600 TOTAL $1,797,124 2. Terms of Payment Payments to the CONSTRUCTION REPRESENTATIVE will be made as follows: A. The CONSTRUCTION REPRESENTATIVE shall provide the CITY sufficient documentation to reasonably substantiate the invoices. B. The CONSTRUCTION REPRESENTATIVE will issue monthly invoices for all work performed under this Agreement. Invoices are due and payment within 30 days of approved receipt. C. In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. D. If the CITY fails to make payment in full to the CONSTRUCTION REPRESENTATIVE for billings contested in good faith within 60 days of the amount due, the CONSTRUCTION REPRESENTATIVE may, after giving seven (7) days' written notice to CITY, suspend services under this Agreement until paid in full, including interest. In the event of suspension of services, the CONSTRUCTION REPRESENTATIVE shall have no liability to the CITY for delays or damages caused the CITY because of such suspension of services. Page 18 of 21 Direct Expenses (Reimbursable) A. The CONSTRUCTION REPRESENTATIVE's Reimbursable Expenses, when part of the basis of compensation, are those costs incurred on or directly for the CITY's project, including, but not limited to: necessary transportation costs, including CONSTRUCTION REPRESENTATIVE's current rates for CONSTRUCTION REPRESENTATIVE's vehicles; meals and lodging; laboratory test and analyses; computer services; word processing services, telephone, printing, binding, and reproduction charges; all reimbursable costs associated with outside consultants, subconsultants, subcontractors, and other outside services and facilities; and other similar costs. Reimbursement for Reimbursable Expenses will be on the basis of actual charges when furnished by commercial sources and on the basis of current rates when furnished by the CONSTRUCTION REPRESENTATIVE. Reimbursable Expenses will be billed at cost plus a 10 percent (10%) surcharge. B. The CONSTRUCTION REPRESENTATIVE will be paid on an hourly basis rate, as shown in Exhibit C, and any subcontractor personnel services will be billed at invoice cost plus a 5 percent (5%) surcharge. C. The CONSTRUCTION REPRESENTATIVE shall keep records on the basis of generally accepted accounting practices of costs and expenses and such records shall be available for inspection by the CITY during normal business hours. Not to Exceed Compensation The CONSTRUCTION REPRESENTATIVE will perform the Services described in Exhibit A at a "Not to Exceed" total compensation amount of $1,797,124.00, unless this Agreement is amended otherwise by the City Council. The final compensation for the major tasks can be over or under the estimated budget amount per task, as shown in this Exhibit B, as long as the total "Not to Exceed" amount is not surpassed. Page 19 of 21 FREESE AND NICHOLS, INC. EXHIBIT C This Exhibit C is part of the Agreement between Freese and Nichols, Inc. (the "CONSTRUCTION REPRESENTATIVE") and the City of Lubbock (the "CITY') for a project generally described as: Northwest Lubbock Drainage Improvements Phase 2 Page 20 of 21 Hourly Fee Schedule (2015): Not to Exceed: Compensation to FNI for Basic Services in Exhibit A shall be computed on the basis of the Schedule of Charges, but shall not exceed One Million Seven Hundred Ninety -Seven Thousand One Hundred Twenty -Four Dollars ($1,797,124.00). If FNI sees the Scope of Services changing so that Additional Services are needed, including but not limited to those services described as Additional Services in Exhibit A, FNI will notify CITY for CITY's approval before proceeding. Additional Services shall be computed based on the Schedule of Charges. Schedule of Charges: Position Rate Position Rate PRINCIPAL 389 3D VISUALIZATION COORDINATOR 190 GROUP MANAGER 272 ENVIRONMENTAL SCIENTIST VII 243 ENGINEERVIII 295 ENVIRONMENTAL SCIENTIST VI 212 ENGINEER VII 289 ENVIRONMENTAL SCIENTISTV 179 ENGINEERVI 251 ENVIRONMENTAL SCIENTIST N 156 ENGINEER 196 ENVIRONMENTAL SCIENTIST III 134 ENGINEER IV 179 ENVIRONMENTAL SCIENTIST II 94 ENGINEER III 159 ENVIRONMENTAL SCIENTIST I 93 ENGINEER II 150 ARCHTTECTVI 214 ENGINEER 124 ARCHITECT 194 ELECTRICAL ENGINEER VI 238 ARCHITECT IV 156 ELECTRICAL ENGINEER V 192 ARCHITECT III 150 ELECTRICAL ENGINEER N 158 ARCHITECT II 121 ELECTRICAL ENGINEER III 145 ARCHITECT I 104 ELECTRICAL ENGINEER II 140 PLANNER VI 226 ELECTRICAL ENGINEER 1 133 PLANNER V 174 MECHANICAL ENGINEER VI 228 PLANNER IV 137 MECHANICAL ENGINEER V 202 PLANNER III 125 MECHANICAL ENGINEER IV 177 PLANNER I 103 MECHANICAL ENGINEER III 156 HYDROLOGIST V 196 PROGRAM MANAGER II 233 HYDROLOGIST IV 154 CONSTRUCTION CONTRACT ADMIN III (Manager) 195 HYDROLOGIST III 142 CONSTRUCTION CONTRACT ADMIN III (Spec. Insp) 160 HYDROLOGIST II 130 CONSTRUCTION CONTRACT ADMIN III (CM) 145 SENIOR GEOLOGIST 152 CONSTRUCTION CONTRACT ADMIN III (RPR) 111 GEOTECHNICAL ENGINEER VI 251 CONSTRUCTION CONTRACT ADMIN II ( RPR) 126 PUBLIC INVOLVEMENT COORDINATOR 143 CONSTRUCTION CONTRACT ADMIN I (DCS 11) 118 WEB SERVICES ADMINISTRATOR 167 CONSTRUCTION CONTRACT ADMIN I (DCS) 106 WORD PROCESSING/SECRETARIAL 86 DOCUMENT CONTROL CLERK 110 OPERATIONS ANALYST 155 SR DESIGNER 197 CONTRACT ADMINISTRATOR 98 DESIGNER II 168 INFORMATION SERVICES ADMINISTRATOR 85 DESIGNER I 141 INFORMATION SERVICES CLERK III 67 CADD DESIGNER 168 INFORMATION SERVICES CLERK II 63 TECHNICIAN IV 145 INFORMATION SERVICES CLERK 1 62 TECHNICIAN III 115 CO-OP 75 TECHNICIAN II 96 STORMWATER ENGINEER VII 215 TECHNICIAN 1 74 STORMWATER ENGINEER VI 198 GIS COORDINATOR 148 STORMWATER ENGINEER V 175 GIS ANALYST N 138 STORMWATER ENGINEER N 150 GIS ANALYST 111 114 STORMWATER ENGINEER III 131 GIS ANALYST 11 97 STORMWATER ENGINEER 11 113 GIS ANALYST 1 75 STORMWATER ENGINEER 1 106 Rates for In -House Services Technology Charge Bulk Printing and Reproduction $8.50 per hour Black and White $0.10 per copy Color $0.25 per copy Travel Piot - Bond $2.50 per plot Standard IRS Rates Plot - Color $5.75 per plot Plot - Other $5.00 per plot Binding $0.25 per binding 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 aooroximates the cost to FNI if an FNI emDlovee was Derformino the same or similar services. These ranges and rates will be adjusted annually in February. Lua16 Page 21 of 21 Hourly Fee Schedule (2015): Not to Exceed: Compensation to FNI for Basic Services in Exhibit A shall be computed on the basis of the Schedule of Charges, but shall not exceed One Mllion Seven Hundred Ninety -Seven Thousand One Hundred Twenty -Four Dollars ($1,797,124.00). If FNI sees the Scope of Services changing so that Additional Services are needed, including but not limited to those services described as Additional Services in Exhibit A, FNI Will notify CITY for CITY's approval before proceeding. Additional Services shall be computed based on the Schedule of Charges. Schedule of Charaes: Position Rate Position Rate PRINCIPAL 389 3D VISUALG'ATION COORDINATOR 190 GROUP MANAGER 272 ENVIRONMENTAL SCIENTIST VII 243 ENGINEER VIII 295 ENVIRONMENTAL SCIENTIST VI 212 ENGINEER VII 289 ENVIRONMENTAL SCIENTIST V 179 ENGINEER VI 251 ENVIRONMENTAL SCIENTIST N 156 ENGINEER V 196 ENVIRONMENTAL SCIENTIST 111 134 ENGINEER IV 179 ENVIRONMENTAL SCIENTIST II 94 ENGINEER III 159 ENVIRONMENTAL SCIENTIST 1 93 ENGINEER II 150 ARCHITECTVI 214 ENGINEER 1 124 ARCHITECT V 194 ELECTRICAL ENGINEER VI 238 ARCHITECT IV 158 ELECTRICAL ENGINEER V 192 ARCHITECT III 150 ELECTRICAL ENGINEER N 158 ARCHITECT II 121 ELECTRICAL ENGINEER III 145 ARCHITECT 1 104 ELECTRICAL ENGINEER II 140 PLANNER VI 226 ELECTRICAL ENGINEER 1 133 PLANNER V 174 MECHANICAL ENGINEER VI 228 PLANNER N 137 MECHANICAL ENGINEER V 202 PLANNER III 125 MECHANICAL ENGINEER IV 177 PLANNER] 103 MECHANICAL ENGINEER III 156 HYDROLOGIST V 196 PROGRAM MANAGER II 233 HYDROLOGIST IV 154 CONSTRUCTION CONTRACT ADMIN III (Manager) 195 HYDROLOGIST III 142 CONSTRUCTION CONTRACT ADMIN III (Spec. Insp) 160 HYDROLOGIST II 130 CONSTRUCTION CONTRACT ADMIN III (CM) 145 SENIOR GEOLOGIST 152 CONSTRUCTION CONTRACTADMIN III (RPR) 111 GEOTECHNICAL ENGINEER VI 251 CONSTRUCTION CONTRACT ADMIN II ( RPR) 126 PUBLIC INVOLVEMENT COORDINATOR 143 CONSTRUCTION CONTRACT ADMIN I (DCS 11) 118 WEB SERVICES ADMINISTRATOR 167 CONSTRUCTION CONTRACTADMIN I (DCS) 106 WORD PROCESSING/SECRETARIAL 86 DOCUMENT CONTROL CLERK 110 OPERATIONS ANALYST 155 SR DESIGNER 197 CONTRACT ADMINISTRATOR 98 DESIGNER II 168 INFORMATION SERVICES ADMINISTRATOR 85 DESIGNER 1 141 INFORMATION SERVICES CLERK III 67 CADD DESIGNER 168 INFORMATION SERVICES CLERK II 63 TECHNICIAN IV 145 INFORMATION SERVICES CLERK 1 62 TECHNICIAN III 115 CO-OP 75 TECHNICIAN 11 96 STORMWATER ENGINEER VII 215 TECHNICIAN 1 74 STORMWATER ENGINEER VI 198 GIS COORDINATOR 148 STDRMWATER ENGINEER V 175 GIS ANALYST IV 138 STORMWATER ENGINEER IV 150 GIS ANALYST III 114 STORMWATER ENGINEER III 131 GIS ANALYST 11 97 STORMWATER ENGINEER II 113 GIS ANALYST 1 75 STORMWATER ENGINEER 1 106 Rates for In -House Services Technology Charge Bulk Printing and Reproduction $8.50 per hour Black and White $0.10 per copy Color $0.25 per copy Travel Plot - Bond $2.50 per plot Standard IRS Rates Plot - Color $5.75 per plot Plot - Other $5.00 per plot Binding $0.25 per binding OTHER DIRECT EXPENSES: Other direct expenses are reimbursed at actual cost times a muttipfier 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 multipfier of 2.0. This markup approximates the cost to FNI if an FNI employee was performing the same or similar services. Subcontractor personnel services Will be billed at invoice cost times a multipler of 1.05. Page 21 of 21