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HomeMy WebLinkAboutRES 11-218 RESOLUTION NO. 11-218 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a contract with Mark Whiteley and Associates, Inc. for engineering services for the South Park Relief Drainage Project. The contract is substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of August, 2011. - ayor Becky Ames - ENGINEERING SERVICES CONTRACT STATE OF TEXAS COUNTY OF JEFFERSON CITY OF BEAUMONT CONTRACTFOR SOUTH PARK NEIGHBORHOOD DRAINAGE IMPROVEMENTS PER CONTRACT NO DRS2110012 FOR CDBG DISASTER RECOVERY ENTITILEMENT GRANT PROGRAM SECTION I This Agreement made and entered into in Beaumont,Jefferson County,Texas between the City of Beaumont,a Municipal Corporation in the State of Texas,hereinafter termed "City", and Mark Whiteley and Associates,Inc. duly licensed,and practicing under the laws of the State of Texas, hereinafter termed "Engineer",said Agreement being executed by the City pursuant to the City Charter and Ordinances and Resolutions of the City Council, and by said Engineer for Engineering Services hereinafter set forth in connection with the above designated Project for the City of Beaumont. The City is awarding this contract in accordance with the State of Texas Government Code 2254, Professional and Consulting Services. I. General A. Detailed Project Description The City of Beaumont will reconstruct the drainage system of a portion of the South Park neighborhood as further defined in Attachment"A", Scope of Services. B. The Engineer shall not commence work on this proposed Project until he has been notified in writing to proceed. The Engineer,in consideration for the compensation herein provided,shall render all professional services necessary for the development of the Project to completion,as provided in this Agreement. 1 EXHIBIT"A" TI. Basic Services The Engineer shall perform the following basic services under this Contract in three (3) phases, namely, Preliminary Design Phase, Final Design Phase, and Bidding Phase as described in Attachment"A",Project Description and Scope of Work. A. The Engineer shall: 1. Meet with City officials to determine the City's requirements for the Project. 2. Verify field survey, field investigation and measurements provided by the City. 3. Performing geotechnical investigations to characterize local soil conditions at selected locations. 4. Develop and prepare detailed plans,specifications,and contract docmnents for the construction of said Project. Furnish a cost estimate based on the plans and supporting contract documents for the proposed construction. 5. Furnish the City with three(3)copies of final plans and supporting documents and one(1) set of reproducible originals. 6. Furnish any additional information as may be listed in the Project description (Attachment A). 7. Meet with City staff to discuss any proposed adjustments. IIT. Additional Services All work that will be performed by the Engineer at the request of the City that is described in this paragraph and not included in the paragraphs above shall constitute Additional Services. Additional Services shall include,but are not limited to the following: A. Services required by the City in any litigation or other controversy as an expert witness, including actual testimony time, stand-by waiting time, preparation of engineering data and reports or depositions and consulting with the City or its attorney. B. Preparation of any special reports, applications for permits or grants and appearances before any regulatory agencies or public hearings not included in Section II.A.6. C. Any revisions of previously approved work. 2 D. Any travel and subsistence to points other than Engineer's or City's Offices and Project site. E. Preparation of exhibits. F. Additional services due to significant changes in scope of the Project or its design including but not limited to changes in size, complexity, or character of construction as agreed to by both parties. G. Services required and approved by the City during the construction phase of the project. H. Providing services after issuance of Letter of Acceptance from the City. IV. Coordination A. The Engineer shall hold monthly conferences with the Director of Public Works or his representatives to the end that the Project as developed shall have the full benefit of the City's experience and knowledge of existing needs and facilities, and be consistent with its current policies and standards. To assist the Engineer in this coordination, the City shall make available for the Engineer's use in planning and designing the Project all existing plans,maps,field notes,statistics,computations,and other data in its possession relative to existing facilities and to this particular Project, at no cost to the Engineer. However, any and all such information shall remain the property of the City and shall be returned if instructed to do so by the Director of Public Works. B. The Director of Public Works will act on behalf ofthe City with respect to the work to be performed under this Agreement. He shall have complete authority to transmit instructions,receive information,interpret and define the City's policies and decisions with respect to materials, equipment, elements and systems pertinent to Engineer's services. C. The City will give prompt written notice to the Engineer whenever the City observes or otherwise becomes aware of any defect in the Engineer's services or any development that affects the scope or timing of Engineer's services. D. The City shall furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be determined to be necessary by the City for the completion of the Project. The Engineer will provide the City reasonable assistance in connection with such approvals and pen-nits such as furnishing of data compiled by the Engineer pursuant to other provisions of the contract,but shall not be obligated to develop additional data, prepare extensive reports or appear at hearings or the like unless compensated therefore under other provisions on this contract. E. The Engineer shall promptly report, in writing, to the City any development that would affect the scope or timing of the Project. 3 V. Fee Schedule A. General For and in consideration of the services to be rendered by the Engineer in this Agreement, the City shall pay and the Engineer shall receive the compensation hereinafter set forth for the Engineer's services described in Sections II,III,and IV. B. Engineering Services The basis of compensation for Engineering Services including Additional Services shall be a lump sum as noted in attachment `B". The basic fee shall not exceed $807,029. VI. City Payments A. Payments shall be made to the Engineer based on the several phases as described above and in accordance with the following: 1. Ninety-five percent(95%)of the amount due the Engineer for work performed in each phase shall be payable on a monthly basis. 2. The remaining five percent (5%) shall be paid at the completion of each phase. B. Payment shall be made within thirty (30) days after submittal of the request for payment for work performed. Payment shall be considered past due forty-five (45) days after submittal. C. A past due charge of 1.0 percent per month will be added to all statements past due for more than forty-five(45)days. D. The City reserves the right to make an audit of charges claimed for this contract for services. VII. Revisions to Drawings and Specifications The Engineer shall make without additional expense to the City over and above the basic fee, $'� P such revisions to the Final Phase as may be required to meet the needs of the City. After approval of the Final Phase by the City,any revisions,additions,or other modifications made at the City's request that involves extra services and expenses to the Engineer shall be subject to additional compensation to the Engineer for such extra services and expenses. VIII. Ownership of Documents All documents including the original drawings,estimates,specifications,field notes and data, will remain the property of the Engineer as instruments of service. However, it is to be 4 understood that the City shall have free access to all such information with the right to make and retain copies of drawings and all other documents including field notes and data. Any reuse without specific written verification or adaptation by Engineer will be at City's sole risk and without liability or legal exposure to Engineer. IX. Termination Either party to this Agreement may terminate the Agreement by giving the other thirty(3 0) days notice in writing and in accordance with the following procedure: A. Upon delivery of such notice by either party to the party, and upon expiration of the thirty day period, the Engineer shall discontinue all services in connection with the performance this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such others or contracts are chargeable to this Agreement. As soon as practicable after receipt of notice of termination,the Engineer shall submit a statement,showing in detail the services performed under this Agreement to the date of termination. The Owner shall then pay the Engineer promptly that proportion of the prescribed charges which the service actually performed under this Agreement that is applicable and useable of this Project, less such payments on account of the charges as have been previously made. Copies of specifications prepared under this Agreement shall be delivered to the City when and if this Agreement is terminated, but subject to the restrictions,as to their use,as set forth in Section VIII B. Failure by the Engineer to comply with the submittal of the statement,and documents as required above shall constitute a waiver by the Engineer of any and all rights or claims to collect any monies that the Engineer may rightfully be entitled to for services performed under this Agreement. X. Engineer's Warranty The Engineer warrants that he has not employed or retained any company or person other than a bona fide employee working solely for the Engineer to solicit or secure this Contract, and that he has not for the purpose of soliciting or securing this Contract paid or agreed to pay any company or person,other than a bona fide employee working solely for the Engineer,any fee,commission,percentage,brokerage fee,gift,or any other consideration,contingent upon or resulting from the award or making of this contract. XI. Equal Employment Opportunity ty The Engineer agrees to follow the City's Minority Business Enterprise Policy. XII. Assignment or Transfer of Interest The Engineer shall not assign or transfer its interest in the Contract without the written consent of the City. 5 XIII. INDEMNIFICATION/LIABILITY THE ENGINEER SHALL SAVE HARMLESS THE CITY FROM ALL CLAIMS AND LIABILITY DUE TO ACTIVITIES OF HIMSELF, HIS AGENTS, OR EMPLOYEES, PERFORMED UNDER THIS CONTRACT AND WHICH RESULT FROM AN ERROR, OMISSION, OR NEGLIGENT ACT OF THE ENGINEER OR OF ANY PERSON EMPLOYED BY THE ENGINEER. THE ENGINEER SHALL ALSO SAVE HARMLESS THE CITY FROM ANY AND ALL EXPENSES,INCLUDING ATTORNEY FEES WHICH MIGHT BE INCURRED BY THE CITY IN LITIGATION OR OTHERWISE RESISTING SAID CLAIM OR LIABILITIES WHICH MIGHT BE IMPOSED ON THE CITY AS RESULT OF SUCH ACTIVITIES BY THE ENGINEER,HIS AGENTS,OR EMPLOYEES. The Engineer shall,within one week after signing the contract and before any work shall start, furnish the City with certificates of insurance naming the City as additional insured satisfactory to the City indicating the existence of Statutory Workmen's Compensation Insurance,and comprehensive General Liability Insurance and Professional Liability. Such insurance shall be at the Engineer's expense. The limits shall be as follows: Comprehensive General Liability and Auto Liability Insurance shall not be less than $250,000.00 per incident/$500,000.00 per occurrence. These certificates shall contain a provision that the City shall be notified thirty (30) days before cancellation of the insurance. The Engineer shall maintain such insurance in force during the life of the contract and no modification or change of insurance carriage and provision shall be made without thirty(30)days written advance notice to the City. XIV. Estimates of Cost Since the Engineer has no control over the cost of labor,materials or equipment or over the contractor's methods of determining prices,or over competitive bidding or market conditions, Cost o r Construction Cost provided for herein are to be made probable Project C p his opinions of proba � on the basis of this experience and qualifications and represent his best judgment as a design professional familiar with the construction industry but the Engineer cannot and does not guarantee that proposals,bids or the construction cost will not vary from opinions of probable cost prepared by him. XV. Interest in City Contracts Prohibited No officer or employee of the City shall have a financial interest, direct or indirect, in any Contract with the City,or shall be financially interested,directly or indirectly,in the sale to the City of any land,materials,supplies or service,except on behalf of the City as an officer or employee. XVI. Federal Requirements A. Agency Concurrence. Signature of a duly authorized representative of Agency in the space provided on the signature page hereof does not constitute a commitment to 6 provide financial assistance or payments hereunder but does signify that this Agreement conforms to Agency's applicable requirements. B. Audit and Access to Records. For all negotiated contracts and negotiated modifications (except those of$10,000 or less), Owner, Agency, the Comptroller General, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the Engineer which are pertinent to the Agreement, for the purpose of making audits, examinations, excerpts, and transcriptions. Engineer shall maintain all required records for three years after final payment is made and all other pending matters are closed. C. Restrictions on Lobbying. Engineer and each Consultant shall comply with Restrictions on Lobbying (Public Law 101-121, Section 319) as supplemented by applicable Agency regulations. This Law applies to the recipients of contracts and subcontracts that exceed $1 00,000 at any tier under a Federal loan that exceeds $150,000 or a Federal grant that exceeds $100,000. If applicable, Engineer must complete a certification form on lobbying activities related to a specific Federal loan or grant that is a funding source for the Agreement. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract,grant,or any other award covered by 31 USC 1352. Each tier shall disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Certification and disclosures are forwarded from tier to tier up to the Owner. Necessary certification and disclosure forms shall be provided by Owner. D. Suspension and Debarment. Engineer certifies, by signing this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Engineer will not contract with any Consultant for this project if it or its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Necessary certification forms shall be provided by the Owner. XVII. Entire Agreement This Agreement represents the entire and integrated Agreement between the City and Engineer and supersedes all prior negotiation,representatives,or agreements,either oral or written. This Agreement may be amended only by written instrument signed by both the City and Engineer. 7 SECTI I 22 IN WITNESS WHEREOF,the City of Beaumont has lawfully caused these presents to be executed by the hand of the City Manager of said City, and the corporate seal of said City to be hereunto affixed and this instrument to be attested by the City Clerk,and the said Engineer,acting by the hand of Mark Whitely, P.E. thereunto authorized President, does now sign, execute and deliver this document. Done at Beaumont,Texas, on this day of , A.D. 2011. Attest: Mark Whitely and Associates,Inc. By Title Attest: CITY OF BEAUMONT By City Manager ATTACHMENT A SCOPE OF SERVICES The South Park drainage area is located in the Southeast portion of the City of Beaumont and is composed of three major sub areas: Moore Street, South Park,and Threadneedle watersheds. The project will install additional storm sewer boxes and pipes and connect them to the existing system. These interconnects will allow for the re-direction of flow to the Neches River and relieve the current outfall, and allow for the interconnect of the three main sub areas. The existing asphalt roads and ditches will be reconstructed to a concrete road with curb and gutter, including a new storm sewer system. The existing roadway,approximately twenty feet(20') wide, will be widened to approximately twenty-seven feet(27'). The City shall install a new storm sewer system, including concrete box culverts at major road crossings,headwalls,storm sewer pipe,manholes, inlets, adjust manholes and inlets, cement stabilized backfill, and perform excavation. Roadway items include dense graded hot mix asphalt for roadway transitions, concrete paving six inches in depth with curb and gutter, cement stabilized backfill, driveways (repair), sidewalks,removing stabilized base and asphalt, signing, and pavement markings. Other miscellaneous items include preparing right of way,removing concrete and concrete structures,sodding for erosion control,excavation for structures,railroad crossing repair, and performing site work associated with construction. Construction shall take place in southeast Beaumont(South Park Drainage Area),including the following roadway corridors: ROAD: FROM: TO: Kenneth Avenue Threadneedle Street Brockman Street Brockman Street Kenneth Avenue Reed Street Reed Street East Threadneedle Street East Lavaca Street Grandberry Street East Lavaca Street East Woodrow Street Adams Street Reed Street MLK Parkway MLK Parkwa Villiva Lane East Lavaca Street East Lavaca Street MLK Parkway Neches River East Woodrow Street Sullivan Street Maddox Street Maddox Street East Woodrow Street East Virginia Street East Virginia Street Highland Avenue University Drive_ d Construction of the culvert crossing will take place at Spur 380(MLK Parkway)north of Lavaca Street, and at the railroad crossing. The engineer shall perform the following basic services under this contract in three (3)phases, namely,Preliminary Design Phase, Final Design Phase and Bidding Phase,as described below. Preliminary Design Phase During the Preliminary Design Phase of the project the Engineer shall: • Participate in a kickoff meeting with the City to verify City's requirements for the project, review available data, and establish the design criteria. • Perform geotechnical and survey work as required. • Review information gathered during the survey including topographic data,elevations and locations of structures and utilities and other features relevant to the final plan sheets. • If requested by the City,prepare and present the planned improvements at a City sponsored public meeting. Final Design Phase After written authorization to proceed with the Final Design Phase, the Engineer shall: • Prepare detailed Plans and Specifications for construction of the improvements as outlined in the approved Preliminary Design Documents. • Prepare Contract Documents incorporating City of Beaumont Standard Specifications. Contract Documents will include contract agreement forms,General Conditions and Supplementary Conditions, invitations to bid and instructions to bidders, and itemized bid proposal forms. Any additive and/or alternate bid items for construction will be incorporated in the bid proposal forms, if applicable. • Furnish the City a revised opinion of probable construction costs based on the Plans and specifications. • Provide Plans and Specifications and Contract Documents to City and review in person with City staff. Bidding Phase After written authorization to proceed with the Bidding Phase, the Engineer shall: • Assist the City in advertising for and obtaining bids for construction. The cost of newspaper notices will be paid for by the City. • Conduct a pre-bid conference with prospective bidders. • Issue addenda as appropriate to interpret, clarify, or expand the bidding documents. • Consult with the City to determine the acceptability of substitute materials and equipment proposed by Contractor(s) when substitution prior to the award of contracts is allowed by the bidding documents. • Attend the bid opening, assist the City in reviewing the bids received,prepare bid table, and make a recommendation to the City. ATTACHMENT B Attachment B to the agreement between Mark Whiteley and Associates, Inc. ("ENGINEER"), and City of Beaumont("CITY"),for a project generally described as: SOUTHPARK NEIGHBORHOOD DRAINAGE IMPROVEMENTS CDBG DISASTER RECOVERY ENTITILEMENT GRANT PROGRAM CONTRACT NO.DRS210012 The cost ceiluig for each phase shall be as indicated below and shall not be exceeded without prior written authorization by the CITY. Preliminary Design Phase Total $242,109 Final Design Phase Total $484,217 Bidding Phase Total 80,703 ENGINEERING SERVICES FEE This attachment B supersedes all prior written or oral understandings of the Compensation and may only be changed by a written amendment executed by both parties. ENGINEERING SERVICES CONTRACT STATE OF TEXAS COUNTY OF JEFFERSON CITY OF BEAUMONT CONTRACT FOR SOUTH PARK NEIGHBORHOOD DRAINAGE IMPROVEMENTS PER CONTRACT NO DRS210012 FOR CDBG DISASTER RECOVERY ENTITILEMENT GRANT PROGRAM SECTION I This Agreement made and entered into in Beaumont,Jefferson County,Texas between the City of Beaumont, a Municipal Corporation in the State of Texas, hereinafter termed "City", and Mark Whiteley and Associates,Inc. duly licensed, and practicing under the laws of the State of Texas, hereinafter termed "Engineer", said Agreement being executed by the City pursuant to the City Charter and Ordinances and Resolutions of the City Council, and by said Engineer for Engineering Services hereinafter set forth in connection with the above designated Project for the City of Beaumont. The City is awarding this contract in accordance with the State of Texas Government Code 2254,Professional and Consulting Services. I. General A. Detailed Project Description The City of Beaumont will reconstruct the drainage system of a portion of the South Park neighborhood as further defined in Attachment"A", Scope of Services. B. The Engineer shall not commence work on this proposed Project until he has been notified in writing to proceed. The Engineer,in consideration for the compensation herein provided,shall render all professional services necessary for the development of the Project to completion,as provided in this Agreement. 1 � �I II. Basic Services The Engineer shall perform the following basic services under this Contract in three (3) phases, namely, Preliminary Design Phase, Final Design Phase, and Bidding Phase as described in Attachment"A", Project Description and Scope of Work. A. The Engineer shall: 1. Meet with City officials to determine the City's requirements for the Project. 2. Verify field survey, field investigation and measurements provided by the City. 3. Performing geotechnical investigations to characterize local soil conditions at selected locations. 4. Develop and prepare detailed plans,specifications,and contract documents for the construction of said Project. Furnish a cost estimate based on the plans and supporting contract documents for the proposed construction. 5. Furnish the City with three(3)copies of final plans and supporting documents and one (1) set of reproducible originals. 6. Furnish any additional information as may be listed in the Project description (Attachment A). 7. Meet with City staff to discuss any proposed adjustments. III. Additional Services All work that will be performed by the Engineer at the request of the City that is described in this paragraph and not included in the paragraphs above shall constitute Additional Services. Additional Services shall include, but are not limited to the following: A. Services required by the City in any litigation or other controversy as an expert witness, including actual testimony time, stand-by waiting time, preparation of engineering data and reports or depositions and consulting with the City or its attorney. B. Preparation of any special reports, applications for permits or grants and appearances before any regulatory agencies or public hearings not included in Section II.A.6. C. Any revisions of previously approved work. 2 i i D. Any travel and subsistence to points other than Engineer's or City's Offices and Project site. E. Preparation of exhibits. F. Additional services due to significant changes in scope of the Project or its design including but not limited to changes in size, complexity, or character of construction as agreed to by both parties. G. Services required and approved by the City during the construction phase of the project. H. Providing services after issuance of Letter of Acceptance from the City. IV. Coordination A. The Engineer shall hold monthly conferences with the Director of Public Works or his representatives to the end that the Project as developed shall have the full benefit of the City's experience and knowledge of existing needs and facilities, and be consistent with its current policies and standards. To assist the Engineer in this coordination, the City shall make available for the Engineer's use in planning and designing the Project all existing plans,maps,field notes,statistics,computations,and other data in its possession relative to existing facilities and to this particular Project, at no cost to the Engineer. However, any and all such information shall remain the property of the City and shall be returned if instructed to do so by the Director of Public Works. B. The Director of Public Works will act on behalf of the City with respect to the work to be performed under this Agreement. He shall have complete authority to transmit instructions,receive information,interpret and define the City's policies and decisions with respect to materials, equipment, elements and systems pertinent to Engineer's services. C. The City will give prompt written notice to the Engineer whenever the City observes or otherwise becomes aware of any defect in the Engineer's services or any development that affects the scope or timing of Engineer's services. D. The City shall furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be determined to be necessary by the City for the completion of the Project. The Engineer will provide the City reasonable assistance in connection with such approvals and permits such as furnishing of data compiled by the Engineer pursuant to other provisions of the contract,but shall not be obligated to develop additional data, prepare extensive reports or appear at hearings or the like unless compensated therefore under other provisions on this contract. E. The Engineer shall promptly report, in writing, to the City any development that would affect the scope or timing of the Project. 3 V. Fee Schedule A. General For and in consideration of the services to be rendered by the Engineer in this Agreement, the City shall pay and the Engineer shall receive the compensation hereinafter set forth for the Engineer's services described in Sections H, III, and IV. B. Engineering Services The basis of compensation for Engineering Services including Additional Services shall be a lump sum as noted in attachment `B". The basic fee shall not exceed $807,029. VI. City Payments A. Payments shall be made to the Engineer based on the several phases as described above and in accordance with the following: 1. Ninety-five percent(95%)of the amount due the Engineer for work performed in each phase shall be payable on a monthly basis. 2. The remaining five percent (5%) shall be paid at the completion of each phase. B. Payment shall be made within thirty (30) days after submittal of the request for payment for work performed. Payment shall be considered past due forty-five (45) days after submittal. C. A past due charge of 1.0 percent per month will be added to all statements past due for more than forty-five(45) days. D. The City reserves the right to make an audit of charges claimed for this contract for services. VII. Revisions to Drawings and Specifications The Engineer shall make,without additional expense to the City over and above the basic fee, such revisions to the Final Phase as may be required to meet the needs of the City. After approval of the Final Phase by the City,any revisions,additions,or other modifications made at the City's request that involves extra services and expenses to the Engineer shall be subject to additional compensation to the Engineer for such extra services and expenses. VIII. Ownership of Documents All documents including the original drawings, estimates,specifications, field notes and data, will remain the property of the Engineer as instruments of service. However, it is to be 4 understood that the City shall have free access to all such information with the right to make and retain copies of drawings and all other documents including held notes and data. Any reuse without specific written verification or adaptation by Engineer will be at City's sole risk and without liability or legal exposure to Engineer. IX. Termination Either party to this Agreement may terminate the Agreement by giving the other thirty(30) days notice in writing and in accordance with the following procedure: A. Upon delivery of such notice by either party to the party, and upon expiration of the thirty day period, the Engineer shall discontinue all services in connection with the performance this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such others or contracts are chargeable to this Agreement. As soon as practicable after receipt of notice of termination,the Engineer shall submit a statement,showing in detail the services performed under this Agreement to the date of termination. The Owner shall then pay the Engineer promptly that proportion of the prescribed charges which the service actually performed under this Agreement that is applicable and useable of this Project, less such payments on account of the charges as have been previously made. Copies of specifications prepared under this Agreement shall be delivered to the City when and if this Agreement is terminated, but subject to the restrictions, as to their use, as set forth in Section VIII. B. Failure by the Engineer to comply with the submittal of the statement,and documents as required above shall constitute a waiver by the Engineer of any and all rights or claims to collect any monies that the Engineer may rightfully be entitled to for services performed under this Agreement. X. Engineer's Warranty The Engineer warrants that he has not employed or retained any company or person other than a bona fide employee working solely for the Engineer to solicit or secure this Contract, and that he has not for the purpose of soliciting or securing this Contract paid or agreed to pay any company or person,other than a bona fide employee working solely for the Engineer,any fee,commission,percentage,brokerage fee,gift,or any other consideration, contingent upon or resulting from the award or making of this contract. XI. Equal Employment Opportunity The Engineer agrees to follow the City's Minority Business Enterprise Policy. XII. Assignment or Transfer of Interest The Engineer shall not assign or transfer its interest in the Contract without the written consent of the City. 5 XIII. INDEMNIFICATION/LIABILITY THE ENGINEER SHALL SAVE HARMLESS THE CITY FROM ALL CLAIMS AND LIABILITY DUE TO ACTIVITIES OF HIMSELF, HIS AGENTS, OR EMPLOYEES, PERFORMED UNDER THIS CONTRACT AND WHICH RESULT FROM AN ERROR, OMISSION, OR NEGLIGENT ACT OF THE ENGINEER OR OF ANY PERSON EMPLOYED BY THE ENGINEER. THE ENGINEER SHALL ALSO SAVE HARMLESS THE CITY FROM ANY AND ALL EXPENSES,INCLUDING ATTORNEY FEES WHICH MIGHT BE INCURRED BY THE CITY IN LITIGATION OR OTHERWISE RESISTING SAID CLAIM OR LIABILITIES WHICH MIGHT BE IMPOSED ON THE CITY AS RESULT OF SUCH ACTIVITIES BY THE ENGINEER,HIS AGENTS,OR EMPLOYEES. The Engineer shall,within one week after signing the contract and before any work shall start, furnish the City with certificates of insurance naming the City as additional insured satisfactory to the City indicating the existence of Statutory Workmen's Compensation Insurance,and comprehensive General Liability Insurance and Professional Liability. Such insurance shall be at the Engineer's expense. The limits shall be as follows: Comprehensive General Liability and Auto Liability Insurance shall not be less than $250,000.00 per incident/$500,000.00 per occurrence. These certificates shall contain a provision that the City shall be notified thirty (30) days before cancellation of the insurance. The Engineer shall maintain such insurance in force during the life of the contract and no modification or change of insurance carriage and provision shall be made without thirty(30) days written advance notice to the City. XIV. Estimates of Cost Since the Engineer has no control over the cost of labor,materials or equipment or over the contractor's methods of determining prices,or over competitive bidding or market conditions, his opinions of probable Project Cost or Construction Cost provided for herein are to be made on the basis of this experience and qualifications and represent his best judgment as a design professional familiar with the construction industry but the Engineer cannot and does not guarantee that proposals,bids or the construction cost will not vary from opinions of probable cost prepared by him. XV. Interest in City Contracts Prohibited No officer or employee of the City shall have a financial interest, direct or indirect, in any Contract with the City, or shall be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies or service, except on behalf of the City as an officer or employee. XVI. Federal Requirements A. Agency Concurrence. Signature of a duly authorized representative of Agency in the space provided on the signature page hereof does not constitute a commitment to 6 provide financial assistance or payments hereunder but does signify that this Agreement conforms to Agency's applicable requirements. B. Audit and Access to Records. For all negotiated contracts and negotiated modifications (except those of$10,000 or less), Owner, Agency, the Comptroller General, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the Engineer which are pertinent to the Agreement, for the purpose of making audits, examinations, excerpts, and transcriptions. Engineer shall maintain all required records for three years after final payment is made and all other pending matters are closed. C. Restrictions on Lobbying. Engineer and each Consultant shall comply with Restrictions on Lobbying (Public Law 101-121, Section 319) as supplemented by applicable Agency regulations. This Law applies to the recipients of contracts and subcontracts that exceed $100,000 at any tier under a Federal loan that exceeds $150,000 or a Federal grant that exceeds $100,000. If applicable, Engineer must complete a certification form on lobbying activities related to a specific Federal loan or grant that is a funding source for the Agreement. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract,grant,or any other award covered by 31 USC 1352. Each tier shall disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Certification and disclosures are forwarded from tier to tier up to the Owner. Necessary certification and disclosure forms shall be provided by Owner. D. Suspension and Debarment. Engineer certifies, by signing this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Engineer will not contract with any Consultant for this project if it or its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Necessary certification forms shall be provided by the Owner. XVII. Entire Agreement This Agreement represents the entire and integrated Agreement between the City and Engineer and supersedes all prior negotiation,representatives, or agreements, either oral or written. This Agreement may be amended only by written instrument signed by both the City and Engineer. 7 SECTION 2 IN WITNESS WHEREOF,the City of Beaumont has lawfully caused these presents to be executed by the hand of the City Manager of said City, and the corporate seal of said City to be hereunto affixed and this instrument to be attested by the City Clerk,and the said Engineer,acting by the hand of Mark Whitely, P.E. thereunto authorized President, does now sign, execute and deliver this document. Done at Beaumont, Texas, on this day of , A.D. 2011. Attest: Mark Whiteley and Associates,Inc. By � 1 Title Attest: , CITY OF BEAUMONT V By City Manager ATTACHMENT A SCOPE OF SERVICES The South Park drainage area is located in the Southeast portion of the City of Beaumont and is composed of three major sub areas: Moore Street, South Park, and Threadneedle watersheds. The project will install additional storm sewer boxes and pipes and connect them to the existing system. These interconnects will allow for the re-direction of flow to the Neches River and relieve the current outfall, and allow for the interconnect of the three main sub areas. The existing asphalt roads and ditches will be reconstructed to a concrete road with curb and gutter, including a new storm sewer system. The existing roadway, approximately twenty feet (20') wide, will be widened to approximately twenty-seven feet(27'). The City shall install a new storm sewer system, including concrete box culverts at major road crossings, headwalls, storm sewer pipe, manholes, inlets, adjust manholes and inlets, cement stabilized backfill, and perform excavation. Roadway items include dense graded hot mix asphalt for roadway transitions, concrete paving six inches in depth with curb and gutter, cement stabilized backfill, driveways (repair), sidewalks,removing stabilized base and asphalt, signing, and pavement markings. Other miscellaneous items include preparing right of way, removing concrete and concrete structures, sodding for erosion control, excavation for structures,railroad crossing repair, and performing site work associated with construction. Construction shall take place in southeast Beaumont (South Park Drainage Area), including the following roadway corridors: ROAD: FROM: TO: Kenneth Avenue Threadneedle Street Brockman Street Brockman Street Kenneth Avenue Reed Street Reed Street East Threadneedle Street East Lavaca Street Grandberry Street East Lavaca Street East Woodrow Street Adams Street Reed Street MLK Parkway MLK Parkway Villiva Lane East Lavaca Street East Lavaca Street MLK Parkway Neches River East Woodrow Street Sullivan Street Maddox Street Maddox Street East Woodrow Street East Virginia Street East Virginia Street Hi hland Avenue University Drive Construction of the culvert crossing will take place at Spur 380 (MLK Parkway) north of Lavaca Street, and at the railroad crossing. The engineer shall perform the following basic services under this contract in three (3)phases, namely, Preliminary Design Phase, Final Design Phase and Bidding Phase, as described below. Preliminary Design Phase During the Preliminary Design Phase of the project the Engineer shall: • Participate in a kickoff meeting with the City to verify City's requirements for the project, review available data, and establish the design criteria. Perform geotechnical and survey work as required. • Review information gathered during the survey including topographic data, elevations and locations of structures and utilities and other features relevant to the final plan sheets. • If requested by the City,prepare and present the planned improvements at a City sponsored public meeting. Final Design Phase After written authorization to proceed with the Final Design Phase,the Engineer shall: • Prepare detailed Plans and Specifications for construction of the improvements as outlined in the approved Preliminary Design Documents. • Prepare Contract Documents incorporating City of Beaumont Standard Specifications. Contract Documents will include contract agreement forms, General Conditions and Supplementary Conditions, invitations to bid and instructions to bidders, and itemized bid proposal forms. Any additive and/or alternate bid items for construction will be incorporated in the bid proposal forms, if applicable. • Furnish the City a revised opinion of probable construction costs based on the Plans and specifications. • Provide Plans and Specifications and Contract Documents to City and review in person with City staff. Bidding Phase After written authorization to proceed with the Bidding Phase, the Engineer shall: Assist the City in advertising for and obtaining bids for construction. The cost of newspaper notices will be paid for by the City. • Conduct a pre-bid conference with prospective bidders. • Issue addenda as appropriate to interpret, clarify, or expand the bidding documents. • Consult with the City to determine the acceptability of substitute materials and equipment proposed by Contractor(s) when substitution prior to the award of contracts is allowed by the bidding documents. • Attend the bid opening, assist the City in reviewing the bids received, prepare bid table, and make a recommendation to the City. ATTACHMENT B Attachment B to the agreement between Mark Whiteley and Associates,Inc. ("ENGINEER"), and City of Beaumont("CITY"), for a project generally described as: SOUTHPARK NEIGHBORHOOD DRAINAGE IMPROVEMENTS CDBG DISASTER RECOVERY ENTITILEMENT GRANT PROGRAM CONTRACT NO. DRS210012 The cost ceiling for each phase shall be as indicated below and shall not be exceeded without prior written authorization by the CITY. Preliminary Design Phase Total $242,109 Final Design Phase Total $484,217 Bidding Phase Total 80,703 ENGINEERING SERVICES FEE This attachment B supersedes all prior written or oral understandings of the Compensation and may only be changed by a written amendment executed by both parties.