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HomeMy WebLinkAbout490561 CH2M HILL ENGINEERS INC - CONTRACT - RFP - 7390 CONSTRUCTION MANAGER FOR MAX BRT PROJECT (2)PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and CH2M Hill, hereinafter referred to as "Professional'. WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Professional agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of six (6) pages, and incorporated herein by this reference. 2. Contract Period. This Agreement shall commence upon signing and shall continue in full force and effect until June 30, 2013, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed two (2) additional one year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties. The Denver Boulder Greeley CPIU published by the Colorado State Planning and Budget Office will be used as a guide. Written notice of renewal shall be provided to the Professional and mailed no later than ninety (90) days prior to contract end. 3. Early Termination by City. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 1 of 39 P.PPRO61�FORM: AssistaM Ci q Attorney ATTE T: CorpSecretary THE CITY OF FORT COLLINS, COLORADO By: Darin Atteberry, Ci anager DATE: * lI-i k� FNIGP �k Management CH2M Hill, /M(_ By: I Title: CORPORATE PRESIDENT OR VICE PRESIDENT Date: -� l L� I uz- (Corporate Seal) Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 10 of 39 EXHIBIT A SCOPE OF WORK Understanding The City of Fort Collins is pursuing construction of a Bus Rapid Transit project along the Mason Corridor from south of Harmony Road to Cherry Street in Fort Collins, Colorado. The project is funded through multiple local sources with primary funding coming from the Federal Transit Administration Small Starts Program. The project includes a new guideway, multiple bridge structures, stations, retaining walls, earthwork, paving, freight rail reconstruction and site restoration. The project also includes a new bus maintenance facility, transit center and pedestrian crossing structures. The project has been designed by multiple consultants working for the City including Michael Baker Inc., Aller Lingle Massey, and other subconsultants. Various parts of the project including the main BRT guideway have been bid and are in various stages of review and award. For the various construction parts, the City is anticipating approximately $40 million in construction value with an overall project budget of $87 million. As the project proceeds to the construction phase, the City desires to supplement its existing workforce with specific expertise to assist in the project construction management, contractor oversight, quality assurance and quality control testing for the project. Specifically, this contract covers the MAX BRT, South Transit Center and Bus Maintenance Facility construction management. Construction Scope of Work The MAX Bus Rapid Transit (BRT) project is a proposed north -south BRT system in the central core of the City of Fort Collins, Colorado. The MAX BRT is located just west of and parallel to College Avenue (US 287), one of the busiest arterials within the City and the entire North Front Range region. The project corridor extends from Cherry Street on the north, to approximately'/4 mile south of Harmony Road, with a total length of five miles. The project contains three main components that include: the Mason Corridor, the South Transit Center and the Maintenance Facility Expansion. The Mason Corridor is proposed within an exclusive guideway for 2.8 miles, with the remaining 2.2 miles intermixed with street traffic on portions of McClelland Drive and Mason Street. Additionally, there are two bridge structures and multiple retaining walls along the MAX BRT route as part of this project. Components also included in the Mason Corridor portion of the project are: signing and striping, intersection improvements, various utility improvements, thirteen stations and stop locations, landscaping, irrigation, traffic control, and guardrail installation. The South Transit Center comprises of a 4,300 square foot transit center, complete with related site work, landscaping, parking and driveways. The Maintenance Facility Expansion includes construction of a 16,240 square foot addition to the existing building, an approximately 65,620 square foot concrete driver training area, and a 680 square foot addition to the Chassis Wash Facility, plus minor interior and exterior renovations. Along the entire length of the corridor, the BRT runs parallel to existing Burlington Northern and Santa Fe (BNSF) Railway tracks. At varying locations, the BRT system is proposed within a combination of properties owned by the BNSF, the City of Fort Collins, Colorado State University (CSU), and private land owners which will require extensive coordination efforts. It is anticipated that the MAX BRT service will begin operation in the first quarter of 2014. The BRT Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 11 of 39 project includes the Mason Corridor construction plans provided by Michael Baker Jr, Inc. and the South Transit Center and Maintenance Facility Expansion plans provided by Alter Lingle Massey Architects P.C. Reference to the MAX BRT incorporates the Mason Corridor South Transit Center and the Maintenance Facility Expansion. Primary Scone of Work Goals for Project Construction Manager Services Oversee, assist, and advise the City of Fort Collins in all parts, as it relates to construction management of the MAX BRT project, ensuring delivery of the project on time and on budget in accordance with local, state and federal requirements. Evaluation and selection of contractor bids if not already awarded and pending bid phase development. • Horizontal and vertical construction inspection services that coincide with construction delivery schedules developed by multiple general contractors. Quality Control--Geotechnical engineering and construction material testing services for horizontal and vertical construction (by CTL Thompson). Environmental oversight for hazardous material removal and mitigation. Financial oversight and budget management. Project reporting to various governmental agencies as it relates to construction including the City of Fort Collins, Federal Transit Administration, and the Colorado Department of Transportation. Coordination and collaboration with local businesses/property owners, community stakeholders, local organizations and authorities including Colorado State University, the Downtown Development Authority, and the Burlington Northern Santa Fe Railway Company (BNSF). Oversight of completion of punch list items, project close-out activities, start-up, testing, commissioning and initial phases of operation. Scope of Work Professional will provide overall project construction management support services in conjunction with the City of Fort Collins team. Professional will integrate its services with those provided by the City to form a cohesive management team. The services summary will include: Preconstruction Phase Participation in a formal partnering session with project team members such as the City, contractor and third party agencies. Potential constructability review of existing or proposed plans for various parts of the project. Document management organization including preparation of a SharePoint site accessible by all team members. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 12 of 39 Participation in value engineering sessions as applicable to various project parts. Coordination, management and attendance for preconstruction meetings for various project parts. Construction Phase Financial and budget management providing monthly billing reports and periodic reports as required by the City of Fort Collins, the FTA, and CDOT. Professional will develop, analyze, and prepare monthly cash flow reports and forecasts for the project; advising of variances between actual and budgeted or estimated costs. Professional will prepare, at least monthly, contractor earned value reports; monitor contractor payroll compliance; and track, verify and document compliance with the Davis Bacon Act, DBE requirements and DBE goals. • Contract document compliance including construction material quality assurance, control and inspection services. Provide review and approval of contractor supplied pay applications, project schedules and close out documentation. Management of construction progress meetings; specialized individual meetings to coordinate third party work and other professional services. Provide meeting minutes for each through City or consultant supplied personnel. Detailed construction inspection to supplement City personnel including maintaining photographic logs, written daily construction reports, record drawings documenting as - built plan changes. Construction inspection efforts are expected to include structural foundation, wall, bridge substructure and superstructure, vertical building, structural steel, reinforcing steel, masonry, earthwork, paving (concrete and asphalt), flatwork and adherence to approved TCPs/MHTs. Quantity take -offs and unit pay item verification; prepare independent cost estimates for cost analysis to contract changes. Analysis of the project schedule and budget with advice on necessary changes or modifications to each, at monthly intervals or more frequently. Communication liaison to the public, various boards, commissions, City Council and contractor's construction group in a partnership role with the City and contractor's PIO. Management of the submittal review process including maintenance of submittal review logs (for each project part), submittal review responses, contractor clarifications on comments, routing of responses, review and document management of process. Management request for information (RFI) process including addressing comments, routing to appropriate design lead and ensuring responses are received by the contractor in a timely fashion to facilitate construction delivery. Construction material testing services including soils, concrete, asphalt, specialty tests, masonry and others as may be required. All tests will be in accordance with current Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 13 of 39 COOT and City of Fort Collins testing standards. Specific reference is made to the current version of the CDOT Field Materials Manual and LCUASS. Assistance in the coordination and communication with local agencies, third parties, utility companies and other stakeholders to ensure their work or interests are addressed within the project schedule and job delivery. • Management of contract changes including review, analysis, recommendations; preparation of change orders and document management. • Record drawing management including tracking jobsite changes, construction details and notes to be used in preparation of as -built plans. Coordination of contractor record drawings for inclusion in one set of final as built drawings for the job. Review final record drawings for accuracy and completeness. Performing special tests, investigations, or monitoring to fulfill the intent of the FTA, COOT and the City of Fort Collins inspection program. Providing special inspections and certify: (i) all construction work performed substantially conforms to approved construction contract documents, the contract drawings and has been performed in accordance designated federal, state and City rules and regulations; and (ii) for progress and final inspections, that all construction work substantially conforms to the approved construction documents and has been performed in accordance with applicable provisions of the construction contract documents and other designated rules and regulations. Performing initial, follow-up, and final inspections of work in progress including interim and final measurements for payment. Monitoring compliance and initiating action preserving safety on the project for all workers and the traveling public. Monitoring jobsite for compliance with approved safety and security plans during construction, testing and pre -operations phases. Preparation and delivery, not less than once each month a report addressing progress, problems, issues, and concerns with respect to the status of the services and the status of any additional services for this contract. Management of the permitting process ensuring any necessary contractor obtained permits are identified and procured according to the delivery schedule. Coordinating and assisting with securing City building permits pertaining to the bus stop shelters. Providing environmental oversight and monitoring as it relates the removal of the PSCO building, and BNSF materials removal and disposal. Oversight, creation and management of construction punch lists including completion of all items to achieve milestone dates in contract. Coordinating and management of delivery, installation, and commissioning of equipment, commissioning processes and procedures, and the initial start-up and testing of all systems to confirm compliance with specifications. Preparation and transmittal of updates to construction activities to the City of Fort Collins Public Information Office. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 14 of 39 Updates to existing FTA required plans (PMP, SSC, etc) as necessary throughout construction delivery for the Construction Management sections. Post Construction Phase Collection and verification of necessary lien waivers, certificates of payment and consents of surety to release final payment. Management of advertisement and retainage release process coordinated with City personnel. • Compilation and verification of all job documentation including record drawings for transmittal to City personnel. Participation and management of final safety, testing, commissioning and operator training process to ensure a safe, functional BRT system including ITS integration. Participation in pre -revenue service operation providing support to City personnel as needed. Oversight, management and coordination of delivery of keys, manuals, plans and specifications, as -built drawings and operation and maintenance manuals to ensure a complete project. Deliverables Deliverable Due Date Progress Reports Monthly Procurement Procedures/ Plan As Required Shop Drawing Submittals Weekly Schedule Tracking Monthly Construction Contract Change Order Log Monthly Earned Value Report Monthly DBE/MBE/WBE & M/W Workforce Utilization Reports Monthly Contract week look ahead Weekly Professional will provide status reports, progress reports, and other deliverables as required. Professional will provide and maintain electronic and paper filing documentation for all reports and deliverables using the City of Fort Collins documentation procedures on a bi-weekly basis. Professional will maintain a web based document management site (SharePoint) for all construction documentation providing access to all team members including City of Fort Collins personnel. Examples of deliverables include: Progress Reports • Shop Drawing Submittals/Status/Logs • Schedule Tracking Reports/Updates Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 15 of 39 • Budget Status Reports • Earned Value Reports DBE/MBE/WBE & MAN Workforce Utilization Reports • Material Test Reports (concrete, asphalt, etc.) Daily Construction Reports • Construction Photographic Logs Updates to Established Plans (PMP, etc) • Pay Applications, Change Orders, Independent Estimates • Job Schedules (overall, look ahead, special) Certified Payroll Reports Schedule The anticipated schedule for the Mason MAX BRT Project is as follows: Pre -Construction: Construction: Startup/Commissioning: June —July 2012 July 2012 — December 2013 January — April 2014 Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 16 of 39 EXHIBIT B COMPENSATION Proposed Fee: Estimated labor: $ 2,585,480 Estimated Material testing (QC) $ 678,000 Consultant expenses: $ 328,014 Fixed Fee CH2114 HILL $ 243,875 Total: $ 3,835,369 A detailed task breakdown is included on the following pages. The fee shown above is assumed as a cost plus fixed fee contract type. All reimbursable "consultant expenses' will be billed at cost no mark up. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 17 of 39 COST SUMMARY Prime risk HOURS IABORCOST FEE CH2M HILL EXPENSES TOTAL FEE on Subs TOTAL. PERCECTAGE „. 14'YcS4ijji ContraU COST CH2M HILL, Inc. 10,022 $ 1,380,164 $ 165,620 $ 254,951 $ 1,800,735 $ ,$ 1,800,735 58% Ditesco 5,820 $ 960,300. $ $ 8,503. 5 868,903. '$ 34,756 $ 903,659' 28% LS Gallegos 4,320 $ 345,016 $ - $ 64,460 $ 409,476 ,$-16,379. $-425,855 '13.3%DBE percentage subtotal 20,162 $ 2,585,480: $ 165,620' $ 328,014 $ 3,079,114' $ 51,135 $ :3,130,249 DBE target 11% CIA Testing $ $ -$ CTL.Thompson lab and testing costs i8,252 $. - $. - $, 678,000 :$ '679,000 ;$ .27,120, $ 705,120 total cost 29,414 $' 2,585,480. $ 165,620 $ 1,006;014..$ 3;757;114 :$ 28,255x3,835369; $ 3,757,114' 4.41% project cost $ 87,000,000 '$z 243;87% Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 18 of 39 u 32 ss/vss .y9„9 J/9/99 9/yu 'eNvs/9/v y4v >Mv eMv fMv- OIM bA M ie 1➢.e N.6 N,3 9t 1. lat Na hex 1N.9 U.] 164 ]Y.] tq3 109 Ie� 10JU I UIIJIIUUUUII IVIGIIdyy l IUI IVI/ DR I rIUJCUI rayIV UI Ju Professional: City: With Copy to: CH2M Hill City of Fort Collins City of Fort Collins, Purchasing Attn: Dan Heilig Attn: Erika Keeton PO Box 580 PO Box 22508 PO Box 580 Fort Collins, CO 80522 Denver, CO 80222 Fort Collins, CO 80522 In the event of any such early termination by the City, the Professional shall be paid for services rendered prior to the date of termination, subject only to the satisfactory performance of the Professional's obligations under this Agreement. Such payment shall be the Professional's sole right and remedy for such termination. 4. Design, Project Indemnity and Insurance Responsibility. The Professional shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services rendered by the Professional, including but not limited to designs, plans, reports, specifications, and drawings and shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencies. The Professional shall indemnify, save and hold harmless the City, its officers and employees in accordance with Colorado law, from all damages whatsoever claimed by third parties against the City; and for the City's costs and reasonable attorneys fees, arising directly or indirectly out of the Professional's negligent performance of any of the services furnished under this Agreement. The Professional shall maintain commercial general liability insurance in the amount of $500,000 combined single limits and errors and omissions insurance in the amount of $1,000,000. 5. Compensation. In consideration of the services to be performed pursuant to this Agreement, the City agrees to pay Professional a fixed fee in accordance with Exhibit B, consisting of nine (9) pages attached to and incorporated herein, in the amount of Two Million Five Hundred Eighty -Five Thousand Four Hundred Eighty Dollars ($2,585,480) plus reimbursable direct costs. All such fees and costs shall not exceed Three Million Eight Hundred Thirty -Five Thousand Three Hundred Sixty -Nine Dollars ($3,835,369). Monthly partial payments based upon the Professional's billings and itemized statements are permissible. The Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 2 of 39 aNL 1V)/a :it/)/u- )ryu ]ryrya )y1a �aa/)a . !Ma '.lana/)/u.: invyy!)�. tool Mi�NYu- allei/yl) bin ao.. oic�SN .ea}Ar �... 109 t ➢0).r.».T t5 i i A tma 1981 zB 9A !!] .903 H 7 P,)<} 3 !.B ♦! ll alb] .:kie o:wa ((S k.+��j EM 7390 Construction Manager for MAX BRT Project S ]3n.93 S :151m $9;A1 S. 39e S u4.1 S- 6U i S 1;W S ;tea 1 @].WI $ ".. 5 64aa]..$ 8N3 S 14am T � ma S $3,m0 S 6<6] Page 21 of 39 DITESCO EXPENSES cell 'phone ' laser, distance ,measurer or other appropriate measuring device digdal.camera laptop/desktop computer computer, software vehicle hazzard lights. vehicles office,space computers . $- 8603. Most dfour,expenses are uiiour rates Fwepusually estimated% of,i a.4"t ` 'i1�irupn 4g- -v' t r to M ourtotalicostas other:ODCs },,x Dann for thisjob it would be $12,600 Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 22 of 39 ft CTL THOMPSON EXPENSES 7/l/2012 6/1/2012 9/1/2012 10/l/2012 11/1/2012 12/l/2012 I/l/2013 2/1/2013 3/1/2013 4/1/2013 5/1/2013 6 1/1013 NITT 1 Jeff Odell) 120 240 240 240 240 240 240 240 24C 240 240 240 MR 2 (Jack Pappert 80 180 ISO It 180 180 180 .180 180 180 180 180 MIT 3 (Fred Braun) 0 so 80 80 80 80 80 80 80 80 80 80 CraigEllis 0 40 40 40 40 40 40 40 40 40 40 40 Chip Leadbetter 20 4 4 4 4 4 4 4 4 4 4 4 Heather Grubb 20 20 20 20 20 .20 - 20 20 20 20 20 20 Environmental (Melissa Chalona) 40 40 20 20 20 20 7/l/2013 6/l/2013 9/1/2013 10/1/2013 11/1/2013 12/1/2013 1/1/2014 Totals Cost Per hour: total cost. MTT I.(leff Odell) 24C 240 240 240 160 '160. 160 4200 $336,000 MTT 2(Jack. Pappert) 180 ISO 120 120 0 -0 0 2660t &rl,r,4jyj,°;$6 ':$159,600 MTT -3,(Fred Braun) 80 g0 80 0 0 0' 0 1120 ruxairi?$6 $67,200 CraigEIlls 40 40 40 40 0 0 0 we "i'.S1[ti:$B $48,000 Chip Leadbetler 4 4 4 4 4 -4 4 92 F'>1„$10 $9,200 Heather Grubb 20 -20 20 20 20 20 20 '380 ''-; `*'E$f00 $38,00 Environmental (Melissa Chalona) 20 .20 1200 a`J ?'1-$]0 : $20,000 9252 Total $078,000 iProctore '„ el , nr"'.je a y;4 ru $80i7everything in hourly rate; no charges for tests Soils Classification }fib '"I n. �, wv. $120j rAsphalt Theo Max Density 1r x�.,�-.�i`$801 Asphalt Gradation/ACCohtent ,, ', $a1501 { Concrete Testsy �y� �;,~���$170f Professional Services Agreement 7390 Construction Manager for MAX BRT Project :6 ten hourdays; allocated overhead via higher,rate 5 nine i hour days :2 weeks per month Page 23 of 39 LSG EXPENSES cell phone $ 1,755 laser distance measurer or other appropriate measuring device $ 130 digital camera $ 360 laptop/desktop computer $ i,800 computer software, - vehicle hazzard lights $ 75 vehicles $ -` office space =by contractor computers $ misc/saftey-equipment $ 1,000 1 person 12 mo mileage $2'6400; 1 person 15 mo mileage $ 33000It $ 64,460 Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 24 of 39 CH2M HILL EXPENSES cell phone see below aser a measureroro erapprowu indasuiirgtlevice n/a' digital camera 0/a laproWdeddop computer see below computer software( .see below vehicle hmard lights vehicles see below Office Spam by otters computers n/a un Raclincarr, Rng expenses in YAM 40% taxable income adder for 18 months with.Wck:... - - - .. $ 88,739 Join ncer living expendsin wan 40%taxable moonne adder for i8 months. wlthCOt b Xk $ . 76,365 othembelow $ 89,847 $ 254,951 Dan Ha lig Dan Hellig Dan Hellig Dan Heilig Dan Hellig Joe Bledenback, Wayne GAles, etc allowance While Frankiln contingency allowable see Tm bock up is 1��40p6i%(�31930f' . see below FED mileage miles rate days mileage 200 0555 59 $ U49 hotel 18 2' $ 1p0 $ 3.600 meals 18 3 50 $ 2,700 $ 12,849 m ileagc 200 0.S55 $ 50,000 $ 310 $ 500 $ 2,050 pertnp say 18-6 trips 18 $ 1,998 $ 25,000 $ 89,847 Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 25 of 39 EXHIBIT C CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the "City') pursuant to this Agreement (the "Agreement"), the Professional hereby acknowledges that it has been informed that the City has established policies and procedures with regard to the handling of confidential information and other sensitive materials. In consideration of access to certain information, data and material (hereinafter individually and collectively, regardless of nature, referred to as "information") that are the property of and/or relate to the City or its employees, customers or suppliers, which access is related to the performance of services that the Professional has agreed to perform, the Professional hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of services for the City may be confidential and/or proprietary. The Professional agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City , or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including but not limited to customers and suppliers of the City) . The Professional shall not disclose any such information to any person not having a legitimate need -to -know for purposes authorized by the City. Further, the Professional shall not use such information to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Professional understands that it shall have no obligation under this Agreement with respect to information and material that (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that'the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Professional shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Professional ceases to perform services for the City, or the City so requests for any reason, the Professional shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Professional understands and agrees that the City's remedies at law for a breach of the Professional's obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 26 of 39 EXHBIT D FEDERAL CONTRACT CLAUSES FEDERAL TRANSIT ADMINISTRATION TABLE OF CONTENTS Federally Required and Other Model Contract Clauses 1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES..................................................28 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS................................................................................................................................... 28 3. ACCESS TO RECORDS AND REPORTS..........................................................................28 4. FEDERAL CHANGES.........................................................................................................29 5. TERMINATION....................................................................................................................30 6. CIVIL RIGHTS REQUIREMENTS.......................................................................................31 7. DISADVANTAGED BUSINESS ENTERPRISE (DBE).......................................................32 8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS .............33 9. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) .......33 10. BUY AMERICA ...................................................................................................................34 11. BREACHES AND DISPUTE RESOLUTION.......................................................................35 12. LOBBYING..........................................................................................................................36 13. CLEAN AIR.........................................................................................................................38 14. CLEAN WATER REQUIREMENTS....................................................................................38 15. CARGO PREFERENCE REQUIREMENTS........................................................................38 16. FLY AMERICA REQUIREMENTS......................................................................................38 17. SEISMIC SAFETY REQUIREMENTS.................................................................................39 18. ENERGY CONSERVATION REQUIREMENTS..................................................................39 19. ADA Access....................................................................................................................... 39 Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 27 of 39 1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a parry to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS Program Fraud and False or Fraudulent Statements or Related Acts. (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, 'Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 3. ACCESS TO RECORDS AND REPORTS Access to Records - The following access to records requirements apply to this Contract: A. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 28 of 39 United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. C. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). D. FTA does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contract Characteristics ` '..•:. Opetatlonal t �Servlce Contract 'ter. gTurnkey' . fi r ,. .':f.-,.. �° Construcpon " + ,. , . ry .,.... ,Architecturalro' #Engiiieenng.� :.�< r ''6Acgwsition �,1 t Professional+Services`°" { ,of+Rolling,;{ .' �' 4 u j..•. ; ti; Stock _'-, . a" 7.�,: I State Grantees - `' None Those None None None -: None a. Contracts below SAT ` imposed on ($100,000) state pass. i= None thru to Yes, if non- None unless None unless None unless non- b. Contracts above ` unless Contractor competitive non- non- -. competitive award $100,000/Capital ". non- award or if '.. competitive competitive Projects ' competitive funded thru' award award award 5307/530915 '.. 311 '.. II Non State Grantees Those a. Contracts below SAT `^ Yes imposed on Yes Yes Yes Yes ($100,000) non -state b. Contracts above ;< Yes3 - Grantee pass Yes Yes Yes Yes $100,000/Capital _ thru to Projects ri Contractor Sources of Authority: 149 USC 5325 (a) ' 49 CFR 633A7 ' 18 CFR 18.36 (i) 4. FEDERAL CHANGES Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 29 of 39 amounts of all such partial payments shall be based upon the Professional's City -verified progress in completing the services to be performed pursuant hereto and upon the City's approval of the Professional's actual reimbursable expenses. The parties acknowledge that the sub -contractors are not parties to this agreement. However, the rates listed for services to be provided by these subcontractors shall be the rate paid by the City to the Professional for these services. If the amount charged by these subcontractors exceeds the rates listed in Exhibit "B" the excess amount shall not be paid or owed by the City. The limitation on increases in prices set forth in section 4 herein shall apply to all rates listed in Exhibit "C" including subcontractor rates. Final payment shall be made following acceptance of the work by the City. Upon final payment, all designs, plans, reports, specifications, drawings, and other services rendered by the Professional shall become the sole property of the City. 6. City Representative. The City will designate, prior to commencement of work, its project representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the project. All requests for contract interpretations, change orders, and other clarification or instruction shall be directed to the City Representative. 7. Project Drawings. Upon conclusion of the project and before final payment, the Professional shall provide the City with reproducible drawings of the project containing accurate information on the project as constructed. Drawings shall be of archival, prepared on stable Mylar base material using a non -fading process to provide for long storage and high quality reproduction. "CD" disc of the as -built drawings shall also be submitted to the City in an AutoCAD version no older then the established city standard. 8. Monthly Report. Commencing thirty (30) days after the date of execution of this Agreement and every thirty (30) days thereafter, Professional is required to provide the City Representative with a written report of the status of the work with respect to the Scope of Services, Work Schedule, and other material information. Failure to provide any required monthly report may, at the option of the City, suspend the processing of any partial payment Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 3 of 39 promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 5. a. Termination for Convenience (General Provision) The City may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City to be paid the Contractor. If the Contractor has any property in its possession belonging to the City, the Contractor will account for the same, and dispose of it in the manner the City directs. b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the City that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. c. Opportunity to Cure (General Provision) The City in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions If Contractor fails to remedy to the City's satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written notice from the City setting forth the nature of said breach or default, the City shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude the City from also pursuing all available remedies against Contractor and its sureties for said breach or default. d. Waiver of Remedies for any Breach In the event that the City elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by the City shall not limit the City's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract. e. Termination for Convenience or Default (Architect and Engineering) The City may terminate this contract in whole or in part, for the Recipient's convenience or because of the failure of the Contractor to fulfill the contract obligations. The City shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 30 of 39 information and materials accumulated in performing this contract, whether completed or in process. If the termination is for the convenience of the Recipient, the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the Recipient. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. 6. CIVIL RIGHTS REQUIREMENTS Civil Rights - The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race. Color, Creed, National Origin, Sex - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et sec., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Acme - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 31 of 39 employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 7. DISADVANTAGED BUSINESS ENTERPRISE (DBE) a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE participation is 9.9%. A separate contract goal of 11% DBE participation has been established for this procurement. b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT -assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as City of Fort Collins deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). c. (if a separate contract goal has been established, use the following} Bidders/offerors are required to document sufficient DBE participation to meet these goals or, alternatively, document adequate good faith efforts to do so, as provided for in 49 CFR 26.53. Award of this contract is conditioned on submission of the following concurrent with and accompanying an initial proposal: 1. The names and addresses of DBE firms that will participate in this contract, 2. A description of the work each DBE will perform, 3. The dollar amount of the participation of each DBE firm participating, 4. Written documentation of the bidder/offeror's commitment to use a DBE subcontractor whose participation it submits to meet the contract goal, 5. Written confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and 6. If the contract goal is not met, evidence of good faith efforts to do so. [Offerors] must present the information required above with initial proposals (see 49 CFR 26.53(3)). Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 32 of 39 8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. 9. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) Background and Applicability In conjunction with the Office of Management and Budget and other affected Federal agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This government -wide regulation implements Executive Order 12549, Debarment and Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103- 355, 108 Stat. 3327). The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to equal or exceed $25,000 as well as any contract or subcontract (at any level) for Federally required auditing services. 49 CFR 29.220(b). This represents a change from prior practice in that the dollar threshold for application of these rules has been lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in the regulation as "covered transactions." Grantees, contractors, and subcontractors (at any level) that enter into covered transactions are required to verify that the entity (as well as its principals and affiliates) they propose to contract or subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that person, or (c) Adding a clause or condition to the contract or subcontract. This represents a change from prior practice in that certification is still acceptable but is no longer required. 49 CFR 29.300. Grantees, contractors, and subcontractors who enter into covered transactions also must require the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts at all levels). Clause Language The following clause language is suggested, not mandatory. It incorporates the optional method of verifying that contractors are not excluded or disqualified by certification. Suspension and Debarment This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 33 of 39 By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by {insert agency name). If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to {insert agency name), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 10. BUY AMERICA The contractor agrees to comply with 49 U.S.C. 53230) and 49 C.F.R. Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, and microcomputer equipment and software. Separate requirements for rolling stock are set out at 49 U.S.C. 53230)(2)(C) and 49 C.F.R. 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content. A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification (below) with all bids or offers on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors. Certification requirement for procurement of steel, iron, or manufactured products Certificate of Compliance with 49 U.S.C. 53230)(1) The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 53230)(1) and the applicable regulations in 49 C.F.R. Part 661.5. Date Signature Company Name Title Certificate of Non -Compliance with 49 U.S.C. 5323Q)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 53230)(1) and 49 C.F.R. 661.5, but it may qualify for an exception pursuant to 49 U.S.C. 53230)(2)(A), 53230)(2)(B), or 53230)(2)(D), and 49 C.F.R. 661.7. Date Signature Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 34 of 39 Company Name Title Certification requirement for procurement of buses, other rolling stock and associated equipment Certificate of Compliance with 49 U.S.C. 53236)(2)(C). The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j)(2)(C) and the regulations at 49 C.F.R. Part 661.11. Date Signature Company Name Title Certificate of Non -Compliance with 49 U.S.C. 53236)(2)(C) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 53230)(2)(C) and 49 C.F.R. 661.11, but may qualify for an exception pursuant to 49 U.S.C. 53230)(2)(A), 53230)(2)(B), or 53230)(2)(D), and 49 CFR 661.7. Date Signature Company Name Title 11. BREACHES AND DISPUTE RESOLUTION Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City's [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by City, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 35 of 39 Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City, (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 12. LOBBYING Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d) - Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. - Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti -Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." 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, officer or employee 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 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100, 000) Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 36 of 39 The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1119/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)] (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] The Contractor, , certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this certification and disclosure, if any. Signature of Contractor's Authorized Official Name and Title of Contractor's Authorized Official Date Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 37 of 39 Certification Regarding Lobbying Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, at seq .)] (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C.❑ 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 U.S.C. 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] The Contractor, CH2M HILL, Inc., certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this certification and disclosure, if any. Signature of Contractor's Authorized Official Thomas K. Ragland, Vice President Name and Title of Contractor's Authorized Official July 11, 2012 Date 13. CLEAN AIR Clean Air — (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 at seg. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 14. CLEAN WATER REQUIREMENTS Clean Water— (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seg. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 15. CARGO PREFERENCE REQUIREMENTS Cargo Preference - Use of United States -Flag Vessels - The contractor agrees: a. to use privately owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States -Flag commercial vessels, b. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on -board" commercial ocean bill -of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor's bill -of -lading.) c. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment material, or commodities by ocean vessel. 16. FLY AMERICA REQUIREMENTS The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government -financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 38 of 39 request. 9. Independent Contractor. The services to be performed by Professional are those of an independent contractor and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose. 10. Personal Services. It is understood that the City enters into this Agreement based on the special abilities of the Professional and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Professional shall neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City. 11. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications, reports, and incidental work or materials furnished hereunder shall not in any way relieve the Professional of responsibility for the quality or technical accuracy of the work. The City's approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement. 12. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default. 13. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance, or (c) avail himself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 4 of 39 explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. 17. SEISMIC SAFETY REQUIREMENTS Seismic Safety - The contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation. The contractor also agrees to ensure that all work performed under this contract including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. 18. ENERGY CONSERVATION REQUIREMENTS Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 19. ADA Access Accessibility. Facilities to be used in public transportation service must comply with 42 U.S.C. Sections 12101 et seq. and DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 CFR Part 37; and Joint ATBCB/DOT regulations, "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT incorporated by reference the ATBCB's "Americans with Disabilities Act Accessibility Guidelines' (ADAAG), revised July 2004, which include accessibility guidelines for buildings and facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added specific provisions to Appendix A modifying the ADAAG, with the result that buildings and facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49 CFR Part 37. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 39 of 39 A� �® CERTIFICATE OF LIABILITY INSURANCE DATE,Mrno°"""' m/osrz912 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endomement(s). PRODUCER MARSH USA, INC. 122517TH STREET, SUITE 2100 CONTACT NAME: FAX PHONE INC,Not, EMAIL ADDRESS: DENVER, CO 80202-5534 INSURERS AFFORDING COVERAGE NAICN INSURER A : Greenwich Insurance Company 22322 15114-00124-GAWO-12/13 SCO DE INSURED CH2M HILL, INC. INSURER B : XL Specially Insurance CO, 37885 INSURER C : 6 HUTTON CENTRE DRIVE, SUITE 700 INSURER D : SANTA ANA, CA 92707 INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: SEA-002331213-01 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WTH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR R TYPE OF INSURANCE ADDL SUER POLICY NUMBER Y MMIDD/YYYY MMIDDIYYYY LIMITS GENERAL LIABILITY X EACH OCCURRENCE 8 1,500,000 A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE MOCCUR RGE500025501 05/01/2012 05101/2013 DAMAGE TO RENTED PREMISES Ea occumence $ 1,500,000 MEDEXP(Any oneperson) S PERSONAL B ADV INJURY $ 1,500,000 X $500,000SIR GENERAL AGGREGATE $ 5,000,000 GEN'L AGGREGATE LIMIT APPLIES PER. PRODUCTS - COMP/OP AGO $ 5,000,000 POLICY PRO- LOC JECT $ AUTOMOBILE LIABILITY X COMBINED SINGLE LIMIT Ea accident 2,000,000 X BODILY INJURY (Per person) $ A ANY AUTO RAD500025401(ADS) 05101/2012 05/01/2013 A ALL OWNED SCHEDULED AUTOS AUTOS RAD500025601 INA) 05A7/2012 05,01/2013 BODILY INJURY (Per aoddent) $ PROPERTY DAMAGE Per accident S NONLWNET) HIREDAIJ AUTOS S UMBRELLA LIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAR CLAIMS -MADE DEO I I RETENTION$ $ WORKERS COMPENSATION X VJC STATLIABILITYB B AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE YIN (FFICEoryln NH) Ia N OFFICER/MEMBER Mandatory NIA RWD500025201(AOS) RWR500025301 W ( ) W01/2012 05101/2012 05/01/2013 05/01/2013 E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE -EA EMPLOYE $ 1,000,000 If yes. it ScAhe under DE SCRIPTION OF OPERATIONS belae E. L. DISEASE -POLICY LIMIT S 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule. If more space is required) RE: 7390 CONSTRUCTION MANAGER FOR MAX BET PROJECT. THE CERTIFICATE HOLDER IS INCLUDED AS AN ADDITIONAL INSURED ON THE GENERAL LIABILITY AND AUTOMOBILE LIABILITY POLICIES AS REQUIRED BY WRITTEN CONTRACT OR AGREEMENT. CITY OF FORT COLLINS PURCHASING DEPT. PO BOX 280 FT. COLLINS, CO 80522 Pf_U L" 9 X!41 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Sharon A. Hammer (211117u--r, a-W� ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD AC"R o® CERTIFICATE OF LIABILITY INSURANCE DATEYY) 2012 07/0912012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER MARSH USA, INC. 122517TH STREET, SUITE 2100 CONTACT NAME' PHONE FAX No: EJMAIL ADDRESS: DENVER, CO 80202-5534 INSURERS AFFORDING COVERAGE NAIC N INSURER A: Zurich American Insurance Cc 16535 15114-00006-PLDEU, 2113 SOO DE INSURED CH2M HILL, INC. INSURER B 6 HUTTON CENTRE DRIVE, SUITE 700 INSURER C : INSURER D : SANTA ANA, CA 92707 INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: SEA-002331215-01 REVISION NUMBER:2 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR rypE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MM/DDM/YY LIMITS GENERAL LIABILITY EACH OCCURRENCE S DAMAGE TO RENTED COMMERCIAL GENERAL LIABILITY PREMISES Ea occurtence 5 CLAIMS -MADE 71 OCCUR MED EXP(Any me person) S PERSONAL &ADV INJURY S GENERAL AGGREGATE S GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OPAGG S S POLICY PRO- LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident S BODILY INJURY (Per person) S ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per awden0 S PROPERTY DAMAGE Per acrid S . NON-0WNEO HIREDAUTOS AUTOS & UMBRELLA LIAB OCCUR EACH OCCURRENCE S AGGREGATE S EXCESS LIAB CLAIMS -MADE DED RETENTIONS S WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERIMEMBER E%CLUDE09 NIA E.L. EACH ACC I DENT S E.L. DISEASE - EA EMPLOYEE S (Mandatory In NHl If yes, describe Under DESCRIPTION OF OPERATIONS below EL.DISEASE - POLICY LIMIT S A PROFESSIONAL LIABILITY' EOC3829621-10 05/0112012 05/01/2013 Each Claim & Total For $2,000,000 All Claims. Retention: $750,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Amen ACORD 101, Additional Remarks Schedule, If more space is required) RE: 7390 CONSTRUCTION MANAGER FOR MAX BRT PROJECT. 'FOR PROFESSIONAL LIABILITY COVERAGE, THE AGGREGATE LIMIT IS THE TOTAL INSURANCE AVAILABLE FOR CLAIMS PRESENTED WITHIN THE POLICY PERIOD FOR ALL OPERATIONS OF THE INSURED. THE LIMIT WILL BE REDUCED BY PAYMENTS OF INDEMNITY AND EXPENSE. CITY OF FORT COLLINS PURCHASING DEPT. PO BOX 280 FT. COLLINS, CO 80522 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Sharon A. Hammer e ✓/?� cz-d✓ rE-� All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD 14. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 15. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 16. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Professional represents and agrees that: a. As of the date of this Agreement: 1. Professional does not knowingly employ or contract with an illegal alien who will perform work under this Agreement, and 2. Professional will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program') or the Department Program (the "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Professional shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. C. Professional is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 5 of 39 d. If Professional obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Professional shall: i 1. Notify such subcontractor and the City within three days that Professional has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Professional shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. f. If Professional violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Professional shall be liable for actual and consequential damages to the City arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Professional violates this provision of this Agreement and the City terminates the Agreement for such breach. 17. Standard of Care. The standard of care applicable to Professional's services will be the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services at the time said services are performed. Professional will re -perform any services not meeting this standard without additional compensation. 18. No Third -Party Beneficiaries. This Agreement gives no rights or benefits to anyone other than City and Professional and has no third -party beneficiaries. 19. Professional's Personnel at Construction Site. The presence or duties of Professional's personnel at a construction site, whether as onsite representatives or otherwise, Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 6 of 39 do not make Professional or Professional's personnel in any way responsible for those duties that belong to City and/or the construction contractors or other entities, and do not relieve the construction contractors or any other entity of 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 construction Contract Documents and any health or safety precautions required by such construction work. Professional and Professional's 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 or safety precautions and have no duty for inspecting, noting, observing, correcting, or reporting on health or safety deficiencies of the construction contractor(s) or other entity or any other persons at the site except Professional's own personnel. The presence of Professional's personnel at a construction site is for the purpose of providing to City a greater degree of confidence that the completed construction work will conform generally to the construction documents and that the integrity of the design concept as reflected in the construction documents has been implemented and preserved by the construction contractor(s). Professional neither guarantees the performance of the construction contractor(s) nor assumes responsibility for construction contractor's failure to perform work in accordance with the construction documents. For this Agreement only, construction sites include places of manufacture for materials incorporated into the construction work, and construction contractors include manufacturers of materials incorporated into the construction work. 20. Opinions of Cost, Financial Considerations. and Schedules. In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the project, Professional has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 7 of 39 competitive bidding procedures and market conditions, time or quality of performance by operating personnel or third parties; and other economic and operational factors that may materially affect the ultimate project cost or schedule. Therefore, Professional makes no warranty that City's actual project costs, financial aspects, economic feasibility, or schedules will not vary from Professional's opinions, analyses, projections, or estimates. 21. Construction Progress Payments. Recommendations by Professional to City for periodic construction progress payments to the construction contractor(s) will be based on Professional's knowledge, information, and belief from selective sampling that the work has progressed to the point indicated. Such recommendations do not represent that continuous or detailed examinations have been made by Professional to ascertain that the construction contractor(s) have completed the work in exact accordance with the construction documents; that the final work will be acceptable in all respects; that Professional has made an examination to ascertain how or for what purpose the construction contractor(s) have used the moneys paid; that title to any of the work, materials, or equipment has passed to City free and clear of liens, claims, security interests, or encumbrances; or that there are not other matters at issue between City and the construction contractors that affect the amount that should be paid. 22. Waiver of Consequential Damages. In no event shall either Party to this Agreement, or their affiliated corporations, officers, employees, or any of their subcontractors, be liable to the other for any incidental, indirect, special, punitive, economic or consequential damages, including but not limited to loss of revenue or profits, suffered or incurred by a Party or any of its agents, including other contractors engaged at the project site, as a result of this Agreement or a Party's performance or non-performance of services pursuant to this Agreement. Limitations of liability provided in this paragraph apply whether the liability is claimed to arise in contract, tort (including negligence), strict liability, or otherwise. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 8 of 39 23. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit C - Confidentiality, consisting of one (1) page, and Exhibit D — Federal Contract Requirements, consisting of thirteen (13) pages, attached hereto and incorporated herein by this reference. Professional Services Agreement 7390 Construction Manager for MAX BRT Project Page 9 of 39