HomeMy Public PortalAboutORD10095 BILL NO.
SPONSORED BY COUNCILMAN �oA/zK
® ORDINANCE NO.
AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI , REPEALING
AMENDMENT NO. 1 TO THE CONTRACT WITH HORNER AND SHIFRIN FOR
SERVICES ON THE COLE JUNCTION SEWER PROJECT, AND AUTHORIZING
THE MAYOR AND CLERK TO EXECUTE ANOTHER AMENDMENT THERETO.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF JEFFERSON,
MISSOURI, AS FOLLOWS:
Section 1. Amendment No. 1, dated August 2, 1983, to the
contract with Horner and Shifrin for services on the Cole Junction
sewer project is hereby repealed.
Section 2. The Mayor and Clerk are hereby authorized to
execute an amendment to the contract, dated June 22, 1982, with
Horner and Shifrin for services on the Cole Junction sewer project.
Section 3. The amendment shall be substantially the same in
form ana content as the amendment attached hereto as Exhibit A.
Section 4. This Ordinance shall be in full force from and after
the date of its passage and approval.
Passed //—'7- g3 Approved �/- 7- �3
residing Officer Mayor
ATTEST:
i
City !Clerk
AMENDMENT NO. 1
TO CONTRACT FOR PROFESSIONAL SERVICES
FOR SURVEILLANCE AND OTHER SERVICES
DURING THE CONSTRUCTION OF
COLE :JUNCTION SEWER PROJECT
JEFFERSON CITY, MISSOURI
Dated June 22, 1982
This Agreement, made this day of Lt� , 19831 by and
between Horner & Shifrin, Inc. Consulting* Engineers, and the City of
Jefferson, Missouri.
WITNESSETH:
Whereas, the requirements for professional service subagreements for 'U.S.
Environmental Protection Agency Grantees has been modified, and
Whereas, the Missouri Department of Natural Resources requires that
existing Grantee subagreements be revised to generally conform to the U.S.
Environmental Protection Agency requirements now in effect.
Now, Therefore, the parties agree to amend the existing Agreement dated
June 22, 1982 as follows:
ARTICLE I
A. The following provisions shall be added to Article I - General Conditions
of the Agreement:
1. Supersession. The Owner and the Engineer agree that this and the
following clauses numbered 1 through 10 apply to the EPA
grant-eligible work to be performed under this Agreement and that
these clauses supersede any conflicting provisions of this Agreement.
2. Privity of Agreement. This Agreement is expected to be funded in
part with funds from the U.S. Environmental Protection Agency.
Neither the United States nor any of its departments, agencies, or
employees is or will be a party to this Agreement or any lower tier
Subagreement. This Agreement is to be subject to regulations
contained in 40 CFR Part 33 in effect on the date of the assistance
award for this project.
3. Changes.
a. The Owner may, at any time, by written order, make changes
within the general scope of this Agreement in the services or
work to be performed. If such changes cause.an increase or
® decrease in the Engineer's cost or time required to perform any
service under this Agreement, whether or not changed by any
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order, an equitable adjustment shall be made and this Agreement
shall be modified in writing. The Engineer must assert any
claim for adjustment under this clause in writing within 30 days
from the date of receipt by the Engineer of the notification of
change unless the Owner grants additional time before the date
of final payment.
b. No services for which an additional compensation will be charged
by the Engineer shall be furnished without the written
authorization of the Owner.
4. Termination.
a. This Agreement may be terminated in whole or in part in writing
by either party in the event of substantial failure by the other
party to fulfill its obligations under this Agreement through no
fault of the terminating party, provided that no termination may
be effected unless the other party is given (1) not less than
ten (10) calendar days' written notice (delivered by certified
mail, return receipt requested) of intent to terminate; and
(2) an opportunity for consultation with the terminating party
prior to termination.
b. - This Agreement may be terminated in whole or in part in writing
by the Owner for its convenience provided that the Engineer is
given (1) not less than ten (10) calendar days' written notice
(delivered by certified mail, return receipt requested) of
intent to terminate; and (2) an opportunity for consultation
with the terminating party prior to termination.
C. If termination for default is effected by the Owner, an
equitable adjustment in the price provided for in this Agreement
shall be made, but (1) no amount shall be allowed for
anticipated profit on unperformed services or other work; and
(2) any payment due to the Engineer at the time of termination
may be adjusted to cover any additional costs to the Owner
because of the Engineer's default. If termination for default
is effected by the Engineer, or if termination for convenience
is effected by the Owner, the equitable adjustment shall include
a reasonable profit for services or other work performed. The
equitable adjustment for any termination shall provide for
payment to the Engineer for services rendered and expenses
incurred prior to the termination, in addition to termination
settlement costs reasonably incurred by the Engineer relating to
commitments which had become firm prior to the termination.
d. Upon receipt of a termination action pursuant to paragraphs a.
or b. above, the Engineer shall (1) promptly discontinue all
services affected (unless the notice directs otherwise); and
(2) deliver or otherwise make available to the Owner all data,
drawings, specifications, reports, estimates, summaries, and
such other information and materials as may have been
• accumulated by the Engineer in performing this Subagreement,
whether completed or in process.
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e. Upon termination under paragraphs a. or b. above, the Owner may
take over the work and may award another party of agreement to
complete the work under this Agreement. The Engineer shall have
no liability for the services not complete as of the time of
termination. '
f. If, after termination for failure of the Engineer to fulfill
contractual obligations, it is determined that the Engineer had
not failed to fulfill contractual obligations, the termination
shall be deemed to have been for the convenience of the Owner.
In such event, adjustment of the price provided for in this
Agreement shall be made as provided in paragraph c. of this
clause.
5. Remedies. Except as may be otherwise provided in this Agreement, all
c aims, counter-claims, disputes, and other matters in question
between the Owner and the Engineer arising out of or relating to this
Agreement or the breach thereof will be decided by arbitration if the
parties mutually agree, or in a court of competent jurisdiction
within the State in which the Owner is located.
6. Audit: Access to Records.
a. • The Engineer shall maintain books, records, documents, and other
evidence directly pertinent to performance on EPA grant work
under this Agreement in accordance with generally accepted
accounting principles and practices consistently applied, and 40
CFR Part 30, in effect on the date of execution of this
Agreement. The Contractor shall also maintain the financial
information and data used by the Engineer in the preparation or
support of the cost submission required under 40 CFR 33.290 for
any negotiated Subagreement or change order and a copy of the
cost summary submitted to the recipient. The United States
Environmental Protection Agency, the Comptroller General of the
United States, the United States Department of Labor, Owner, and
the Missouri Department of Natural Resources or any of their
authorized representatives shall have access to all such books,
records, documents, and other evidence for the purpose of
inspection, audit, and copying during normal business hours.
The Engineer will provide proper facilities for such access and
inspection.
b. The Engineer agrees to include paragraphs a. through f. of this
clause in all his Subagreements in excess of $10,000 and all
lower tier Subagreements in excess of $10,000 and to make
paragraphs a. through f. of this clause applicable to all change
orders directly related to project performance.
C. Audits conducted under this provision shall be in accordance
with generally accepted auditing standards and established
procedures and guidelines of the reviewing or audit agency(ies) .
d. The Engineer agrees to disclose all information and reports
® resulting from access to records under paragraphs a. and b. of
this clause, to any of the agencies referred to in paragraph a.
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e. Records under paragraphs a. and b. above, shall be maintained
and made available during performance on EPA assisted work under
this Contract and until three years from the date of final EPA
payment for the project. In addition, those records which
relate to any controversy arising under an EPA assistance
agreement, to litigation, to the settlement of claims arising
out of such performance, or to costs or items to which an audit
exception has been taken, shall be maintained and made available
until three years after the date of resolution of such appeal,
litigation, claim, or exception.
f. This right of access clause (with respect to financial records)
applies to:
(1) This contract.
(2) Subagreements or purchase orders under this Contract.
7. Covenant Against Contingent Fees. The Engineer warrants that no
person or selling agency has been employed or retained to solicit or
secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona
fide employees or bona fide established commercial or selling agencies
maintained by the Engineer for the purpose of securing business. For
breach or violation of this warranty, the Owner shall have the right
to annul this Agreement without liability or in its discretion to
deduct from the contract price or consideration, or otherwise recover,
AIML the full amount of such commission, percentage, brokerage, or
contingent fee.
8. Gratuities.
a. If the Owner finds after a notice and hearing that the Engineer,
or any of the Engineers agents or representatives, offered or
gave gratuities (in the form of entertainment, gifts, or
otherwise) , to any official, employee, or agent of the Owner,
the State, or EPA in an attempt to secure an agreement or
favorable treatment in awarding, amending, or making any
determinations related to the performance of this Agreement, the
recipient may, by written notice to the Engineer, terminate this
Agreement. The Owner may also pursue other rights and remedies
that the law or this Agreement provides. However, the existence
of the facts on which the Owner bases such findings shall be in
issue and may be reviewed in proceedings under the Remedies
clause of this Agreement.
b. In the event this Agreement is terminated as provided in
paragraph a. , the Owner may puruse the same remedies against the
Engineer as it could pursue in the event of a breach of the
Agreement by the Engineer; and (2) as a penalty, in addition to
any other damages to which it may be entitled by law, to
exemplary damages in an amount (as determined by the Owner)
which shall be not less than three nor more than ten times the
costs the Engineer incurs in providing any such gratuities to
any such officer or employee.
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9. Buy American. (This clause applies to subagreements awarded under
+0 CFR Part 35, Subparts E and I.)
In accordance with Section 215 of the Clean Water Act (3 USC 1251
et. seq.) and implementing EPA regulations and guidelines, the
Engineer agrees that preference will be given to domestic
construction material by the Engineer, subcontractors, materialmen,
and suppliers in the performance of this Agreement.
10. Responsibility of the Engineer.
a. The Engineer is responsible for the professional quality,
technical accuracy, timely completion, and the coordination of
all designs, drawings, specifications, reports, and other
services furnished by the Engineer under this Agreement. The
Engineer shall correct or revise any errors, omissions, or other
deficiencies in his designs, drawings, specifications, reports,
and other services without additional compensation than was
anticipated in this Agreement for providing such services.
b. The Engineer shall perform the professional services necessary
to accomplish the work required to be performed under this
Agreement, in accordance with this Agreement and applicable EPA
requirements in effect on the date of executioi of the
assistance agreement for this project.
C. The Owner's or EPA's approval of drawings, designs,
specifications, reports, and incidental work or materials
furnished hereunder shall not in any way relieve the Engineer of
responsibility for the technical adequacy of his work. Neither
the Owner's nor EPA's review, approval, acceptance, or payment
for any of the services shall be construed as a waiver of any
rights under this Agreement or of any cause of action arising
out of the performance of this Agreement.
d. The Engineer shall be and shall remain liable, in accordance
with applicable law, for all damages to the Owner or EPA caused
by the Engineer's negligent performance of any of the services
furnished under this Agreement, except for errors, omissions, or
other deficiencies to the extent attributable to the Owner,
Owner-furnished data, or any third party. The Engineer shall
not be responsibile for any time delays in the project caused by
circumstances beyond the Engineer's control.
e. The Engineer's obligations under this clause are in addition to
the Engineer's other express or implied warranties under this
Agreement or State law and in no way diminish any other rights
that the Owner may have against the Engineer for faulty
materials, equipment, or work.
11. Final Pa ment. Upon satisfactory completion of the work performed
under this Agreement, as a condition before final payment under this
® Agreement, or as a termination settlement under this Agreement, the
Engineer shall execute and deliver to the Owner a release of all
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claims against the Owner arising under or by virtue of this
® Agreement, except claims which are specifically exempted by the
Engineer to be set forth therein. Unless otherwise provided in this
Agreement or by State law or. otherwise expressly agreed to by the
parties to this Agreement, final payment under this Agreement or
settlement upon termination of this Agreement shall not constitute a
waiver of the Owner's claims against the Engineer.
B. The Engineer agrees to comply with the provisions of 40 CFR 33.1022
through 40 CFR 33.1024 current as of the date of this Agreement.
C. The following shall be added to Article II, Item C.
1110. Providing follow-up services for the Project in accordance with
40 CFR 35.2214 et al and Guidelines current as of the date of this
Agreement."
IN_KTNESS WHER , the parties hereto have affixed their hands and seals
this day of , 1983.
ATTEST:
(SEAL)
City of Jefferson, Missouri
BY -LP.��- BY
Title Title
ATTEST:
(SEAL)
Horner & Shifrin, Inc.
Design E eers/Archit:f.
By B G���'�i°�-�
��.
T i� e
F.E.I.N. 43-0861661
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