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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dated August 2, 1983, to the contract with Horner and Shifrin for services on the Cole Junction sewer project is hereby repealed.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 -1- 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. -2- 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. -3- 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. -4- 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 -5- 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 -6- `