HomeMy WebLinkAbout13254 ORD - 06/23/1976'kh; 6- 23 -76; 1st
TEXAS:
AN ORDINANCE
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDMENT
TO THE CONTRACT WITH McCAUGHAN & ETHERIDGE, CONSULTING
ENGINEERS, FOR ENGINEERING SERVICES IN CONNECTION WITH
PROPOSED IMPROVEMENTS TO THE WESTSIDE WASTEWATER SYSTEM,
WHICH AMENDMENT PROVIDES FOR A SCOPE OF SERVICES T0-
CORRESPOND WITH THE CITY'S STEP 2 GRANT APPLICATION FOR*
PREPARATION-OF CONSTRUCTION DRAWINGS AND SPECIFICATIONS,
SPECIFIES A FIXED PRICE'FEE'AND COMPLIES WITH CURRENT
FEDERAL GUIDELINES WITH REGARD TO THE PROCUREMENT OF
ENGINEERING SERVICES; APPROPRIATING $41,800 OUT OF THE
NO. 250 SANITARY SEWER BOND FUND FOR SAID ENGINEERING
SERVICES APPLICABLE TO PROJECT NO. 250- 72 -11, BOTH THE
AUTHORITY TO EXECUTE THE AMENDMENT AND THE APPROPRIATION
OF FUNDS BEING SUBJECT TO CONCURRENCE IN AND APPROVAL
BY THE TEXAS WATER QUALITY BOARD AND THE ENVIRONMENTAL
PROTECTION AGENCY IN THE CITY'S STEP 2 GRANT APPLICATION
FOR IMPROVEMENTS TO THE WESTSIDE WASTEWATER SYSTEM, EPA
PROJECT NO. C -48- 1217 -02; AND DECLARING AN EMERGENCY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY,OF CORPUS CHRISTI,
SECTION 1. That the City Manager be and he is hereby authorized to
execute an amendment to the contract with McCaughan & Etheridge, Consulting
Engineers, for engineering services in connection with proposed improvements
to the Westside Wastewater System, which amendment provides for a scope of
services to correspond with the City's Step 2 Grant Application for prepara-
tion of construction drawings and specifications, specifies a fixed price
fee and complies with current federal guidelines with regard to the procure-
ment of engineering services.
SECTION 2. That there is hereby.appropriated out of the No. 250
Sanitary Sewer Bond Fund the sum of $41,800 for said engineering services
applicable to Project No. 250- 72 -11, both the authority to execute the
amendment and the appropriation of funds being subject to concurrence in
and approval by the Texas Water Qualtiy Board and the Environmental Protection
Agency in the City's Step 2 Grant Application for improvements to the
Westside Wastewater System, EPA Project No. C -48- 1217 -02.
SECTION 3. The necessity to authorize execution of the amendment
to the contract with McCaughan & Etheridge and to appropriate the necessary
sums as hereinabove set forth creates a public emergency and an imperative
public necessity requiring the suspension of the Charter rule that no ordi-
nance or resolution shall be passed finally on the date of its introduction
MICROFILM%
13251 JUN 171980
but that such ordinance or resolution shall be read at three several meetings
of the City Council, and the Mayor having declared such emergency-and necessity
exist, and having requested the suspension of the Charter rule and that this
ordinance be passed finally on the date of its introduction and take effect
and be in full force and effect from and after its passage, IT IS ACCORDINGLY
SO ORDAINED, this the A3 day of June, 1976.
ATTEST:
i01�1 cr etary =� MAYOR
THE CITY OF CORPUS CHRISTI, TEXAS
dC AY OF JUNE, 1976:
J. BRUCE AYCOCK, CITY ATTORNEY
By,
fil ;ss44`saRt City 0 ttorney
t
AMENDMENT TO CONTRACT FOR ENGINyRING SERVICES
THE STATE OF TEXAS Q
COUNTY OF NUECES
The City of Corpus Christi, hereinafter called "City ", and McCaughan and
Etheridge, a partnership composed of F. A. McCaughan, Obie L. Etheridge, and
Rendell C. Webb, Jr., Registered Professional Engineers in the State of Texas
hereinafter called "Engineer" and "Engineers ", whether one or more, agree to the
following amendment of the contract for Engineering Services approved by Ordi-
nance No. 11424, and executed April 30, 1973, as amended by Ordinance No. 12498,
and executed February 26, 1975;
WHEREAS, said contract included as Item I -A the provision of preliminary,
design, and construction phase engineering services for various improvements to
the sewer systems of the City, with compensation to be based on a percentage of
construction cost, and
W=AS, after work was commenced by the Engineers under said Item I -A, the
City determined that it desired to add to the work improvements at its Westside
Treatment Plant, and to seek Federal grant assistance under the Federal Water
Pollution Control Act Amendments of 1972, Public Law 92 -500 and the rules and
regulations thereto as administered by the Environmental Protection Agency (EPA),
the City and the Engineers on the 26th day of February, 1975, executed an Amend-
ment to said Contract, including improvements to the Westside Treatment Plant in
the contract and further changing the Scope of Services to include an infiltration/
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Inflow Analysis, preparation of a Facility Plan, Environmental Assessment, and
other work required under "Step 1" of the grant regulations, and such services
were performed and are represented in the "Facility Plan for Westside Wastewater
System Improvements ", dated May, 1976, prepared by the Engineers, and
WHEREAS, the City now desires to apply for similar Federal grant assistance
for "Step 2 ", generally including the detailed design and preparation of plans
and specifications, and it is required by the current grant regulations to comply
with certain guidelines for the procurement of and method of payment for engineering
services, and to negotiate sub - agreements for engineering services which include
compliance with current criteria, guidelines, and regulations, many of which were
not contemplated in the contract of April 30, 1973, or the amendment of February 26,
1975, and
WHEREAS, the City has been satisfied with the performance of the Engineers in
connection with Step 1 and desires that the Engineers continue for the remainder
of the project, and
WHEREAS, the City and the Engineers have acquainted themselves with said
Federal regulations on procurement of professional services, and the Engineers
have presented their cost data to the City and have identified personnel and
facilities required, special technical services required, the extent of sub-
contracting contemplated, required time of completion, and estimated costs for
performing the "Step 2" services, and after discussion and negotiation the City
and the Engineers have agreed on the scope of services to be performed and a
fair and reasonable fee therefor, and have agreed to enter into this Contract
Amendment for Engineering Services for the "Step 2" or "Design" Phase of the
Westside Wastewater System Improvements, yet leaving in force and effect all
those other provisions of the said Contract of April 30, 1973, and the said
Amendment of February 26, 1975, which do not apply hereto;
NOW THEREFORE, the City and Engineer agree as follows:
SECTION A. GENERAL PROVISIONS OF AGREEMENT
An appendix will be added to said contract and identified as Appendix A,
EPA - General Provisions which is from 40 CFR Part 35.965, Appendix C -1,
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a copy of which is attached hereto and made a part hereof. The provisions
of this appendix shall supersede any section of the agreement in conflict
therewith.
SECTION B. SERVICES TO BE PERFORMED
In consideration of the premises and the fees to be paid as hereinafter
described, the Engineers agree to render professional engineerirg services
to include the preparation of the construction drawings and specifications,
proposal forms and design summary for the proposed improvements to the
Westside Wastewater System as defined in the "Facility Plan" as prepared
by the Engineer and consistent with EPA guidelines for "Step 2" Work as in
effect as of the date of this agreement. The engineer's services will
include the following:
1. Assist the City in preparing documents necessary for a
"Step 2" Grant Application.
2. Make field surveys as necessary for design, and for general
description of easements or property required. This does
not include land surveys for legal purposes or for estab-
lishing location of disputed boundaries.
3. Prepare descriptions of easements or property required.
4. Establish the scope of, and provide, such soil investigations,
borings, and laboratory testing as are necessary for the
design of the project, utilizing the services of an established
commercial testing laboratory.
$. Furnish engineering data as is necessary for permits required
by local, State and Federal authorities and assist the City
in the application for such permits, as well as, acting as
the City's representative in obtaining said required permits.
6. Design the various units and items of improvement in accordance
with recognized engineering practice and the applicable criteria
of local, State, and Federal authorities. The Engineer is not
required to include detailed design for alternate bids (alternative
processes or structures or equipment).
7. Confer with representatives of the City, other local authorities,
representatives of the Texas water Quality Board and the Environ-
mental Protection Agency and other State and Federal agencies,
as necessary for satisfactory completion of the "Step 2" work
for the project.
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8. Review the contract phases proposed in the Facility Plan to
reaffirm their desirability or make modifications as might
be appropriate or desirable to the City for the phasing of
construction.
9. Prepare detailed construction plans, specifications, proposal
forms and design summary for construction, and provide to
the City eight copies thereof for official review and approval
for each of the recommended construction contracts.
10. Prepare detailed cost estimates of authorized construction
for each separate construction contract. The Engineers are
not required to guarantee that the work as finally designed
will be within the preliminary estimates shown in the Facility
Plan, nor that the construction bids will be within the final
detailed cost estimates.
11. Prepare, in outline form, five copies of preliminary operation
and maintenance manuals.
12. Provide engineering data and other assistance as needed to
aid the City in making application for grant assistance for
"Step 3 ", construction.
13. Travel in Corpus Christi and its environs and to State and
Federal offices within the State of Texas, as necessary for
design and for conferences reasonably required for project
reviews and advancement.
14. Perform such other services as are required of the Engineer
for "Step 2" under Federal regulations in effect as of the
date of this agreement.
SECTION C. COMPENSATION
1. The City shall compensate the Engineer for services rendered
in compliance with current EPA guidelines as defined in the
Federal Register, Vol. 40, No. 243, Wednesday, December 17,
1975. Payments will be based on the "Fixed Price" method
with the fee to be Forty -One Thousand Eight Hundred Dollars
(41,800).
2- Payment shall be made as follows:
a. After commencing the work, the Engineers may invoice the
City on a monthly basis for partial completion as provided
in Appendix A., EPA General Provisions attached hereto.
b. Payments shall not exceed 90% of the value of the work
actually complete as estimated by the Engineers and
approved by the City.
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c. Request for payment shall be supported by personnel time
summaries, invoices, and other supportive documentation.
d. No payment will be made to the Engineer unless work progress
has been approved by the City.
e. Statements as invoiced will be paid by the City within 30
days, if not questioned as to correctness.
f. Payments to the Engineer by the City are not to be construed
as a partial release or acceptance of the overall perfor-
manced of the work called for under this amendment.
g. Upon satisfactory completion of the work by the Engineer and
submission of the "Step 2" work to the Texas Water Quality
Board and EPA for review a maximum payment of gars of the
contract price will be paid by the City to the Engineer.
h. Final payment will be made to the Engineer by the City
upon written approval of the "Step 2" work by EPA.
SECTION D. MODIFICATION OF THE PROJECT WORK
1. All modifications of the project scope or scope of engineering
services shall be done in accordance with Appendix A. - EPA
General Provisions attached hereto.
2. All modifications shall be authorized in writing.
3. Such modifications shall take into consideration increased
or decreased cost for performance.
4. It is understood and agreed that the Engineer may make minor
variation from the preliminary details suggested in the
Facility Plan, provided the completed design is satisfactory
to the City and EPA.
SECTION E. COOPERATIVE SERVICES
1. Where the Engineers determine, and the City concurs, that pilot
plant studies are needed, such facilities shall be designed
by the City and the City will provide for construction, instal-
lation, and operation with its own forces under the supervision
of the Engineers.
2. Where wastewater sampling and testing is requested by the Engineer
to assist in the design, the City will provide the necessary
laboratory services.
3. Where the Engineers request temporary modifications of plant
operational procedure to assist in the design, the City will
cooperate to the fullest practical extent.
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4. The City will provide to the Engineer copies or prints of
plans, specifications, and other existing information on
existing facilities as may be requested and reasonably
related to the design.
5. The City and the Engineers will provide prompt review and
respondence to requests and submissions made by each to
the other.
6. The Engineers will cooperate with the City's staff and
other consultants, where mutual coordination of planning
activities are required for inter - related problems.
SECTION F. AUTHORIZATION TO PROCEED
After execution of this contract the City will within a reasonable time
issue to the Engineers full authorization to proceed with the work as described
herein. It is understood that this Agreement is subject to approval by the
Environmental Protection Agency. Should the Engineer elect to proceed previous
to receiving such authorization, such shall not in any way invalidate his rights
to compensation should the authorization be subsequently issued. Should this
agreement and /or the "Step 2" grant be not approved by EPA, this amended contract
shall be null and void, but the Engineer shall be compensated equitably for his
assistance in making the application.
SECTION G. TIME OF COMPLETION
The Engineers shall complete the above described "Step 2" work in accordance
with the Project Time Schedule as adopted by Ordinance No, dated June 231
1976. Any major requirement to alter the time for performance will be considered
under Section D, Modification of Project Work as described above.
SECTION H. ACTS OF GOD, ETC.
Neither party shall hold the other responsible for damages or delay in
performance caused by acts of God, strikes, lockouts, accidents, or other
events beyond the control of the other or the other's employees and agents.
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SECTION I. ASSIGNABILITY
The Engineer shall not assign, transfer or delegate any of his obligations
or duties in this contract to any other person without the prior written consent
of the City, except for routine duties delegated to personnel on the Engineer's
staff or to outside subcontractors or to professional associates (and their
employees) working under the Engineer's direction. In the event of the termi-
nation of the Engineers' partnership, this contract shall inure to the indivi-
dual benefit of such partner or partners as the City may designate. No part of
the Engineer's fee may be assigned in advance of receipt of the Engineer with-
out written consent of the City.
SECTION J. REMEDIES
1. Venue for any action under this Agreement shall lie in Nueces
County, Texas.
2. The provisions for arbitration in Par. 6 of Appendix C -1 shall
be applied only by mutual consent of the parties. Lacking
such mutual consent, disputes not reconcilable by negotiation
shall be settled according to law.
SECTION K. APPLICABILITY
This Contract Amendment shall apply to, and only to, the Design Phase
of "Step 2" services for the Broadway Wastewater System, and all other pro-
visions of the said Contract of April 30, 1973, and its Amendment of February
26, 1975, and shall remain in full force and effect unless otherwise amended.
The City and the Engineer recognize and agree that an additional amendment will
be necessary at such time as the City applies for a "Step 3" Grant under
P.L. 92 -500. The services to be performed and the payment for such services
will be negotiated at the appropriate future date.
SECTION L. ATTACHMENT
The attached supplemental memorandum of June 22, 1976 is made a part of
this contract.
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EXECUTED IN DUPLICATE, each of which shall be considered an original,
this the day of , 1976.
ATTEST THE CITY OF CORPUS CHRISTI
City Secretary
By
R. Marvin Townsend, City Manager
APPROVED AS TO LEGAL FORM THIS
day of , 1976 McCAUGHAN & ETHERIDGE
City Attorney Partner
Director of Finance
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APPENDIX A
E.P.A. GENERAL PROVISIONS
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UNITED STATE ENVIRONMENTAL PROTECTION AGENCY
APPENDIX C -1
REQUIRED PROVISIONS
CONSULTING ENGINEERING AGREEMENTS
1. General
2. Responsibility of the Engineer
3. Scope of Work
4. Changes
5. Termination
6. Remedies
7. Payment
8. Project Design
9. Audit; Access to Records
10. Price Reduction for Defective Cost or Pricing Data
11. Subcontracts
12. Labor Standards
13. Equal Employment Opportunity
14. Utilization of Small or Minority Business
15. Covenant Against Contingent Fees
16. Gratuities
17. Patents
18. Copyrights and Rights in Data
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1. GENERAL
(a) The Owner and the Engineer agree that the following provisions shall
apply to the work to be performed under this agreement and that such provisions
shall supersede and govern any conflicting provisions of this agreement.
(b) This agreement is funded in part by a grant from the U. S. Environ-
mental Protection Agency. Neither the United States nor the U. S. Environmental
Protection Agency (hereinafter, "EPA ") is a party to this agreement. This agree-
ment is subject to regulations contained in 40 CFR 35.936, 35.937, and 35.939.
2. RESPONSIBILITY OF THE ENGINEER
(a) The Engineer shall be 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, without additional compensation,
correct or revise any errors or deficiencies in his designs, drawings, specifica-
tions, reports and other services.
(b) The Engineer shall perform such professional services as may be
necessary to accomplish the work required to be performed under this agreement,
in accordance with this agreement and applicable EPA requirements.
(c) Approval by the Owner or EPA of drawings, designs, specifications,
reports, and incidental engineering work or materials furnished hereunder shall
not in any way relieve the Engineer of responsibility for the technical adequacy
of the work. Neither the Owner's nor EPA's review, approval or acceptance of,
nor payment for, any of the services shall be construed to operate as a waiver of
any rights under this agreement or of any cause of action arising out of the
performance of this agreement, and the Engineer shall be and 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.
(d) The rights and remedies of the Owner provided for under this
agreement are In addition to any other rights and remedies provided by law.
3. SCOPE OF WORK
Except as may be otherwise specifically limited In this agreement, the
services to be rendered by the Engineer shall Include all services required
to complete the task or step in accordance with applicable EPA regulations
(40 CFR 35, Subpart E) .
4. 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 of, or time required for, performance of any services under this agree-
ment, whether or not changed by any order, an equitable adjustment shall
be made and this agreement shall be modified in writing accordingly. Any
claim of the Engineer for adjustment under this clause must be asserted in
writing within 30 days from the date of receipt by the Engineer of the
notification of change unless the Owner grants a further period of time before
the date of final payment under this agreement.
(b) No services for which an additional compensation will be charged
by the Engineer shall be furnished without the written authorization of the
Owner,
5. 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 such termination may be effected unless the other party is
given (1) not less than ten (10) 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 no such termination may be
effected unless the Engineer is given (1) not less than ten (10) 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 termina-
tion may be adjusted to the extent of any additional costs occasioned to the
Owner by reason 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. '
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(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 agreement, whether completed
or in process.
(e) Upon termination pursuant to paragraphs (a) or (b) above, the
Owner may take over the work and prosecute the same to completion by
agreement with another party or otherwise.
(f) If, after termination for failure of the Engineer to fulfill contractual
obligations, it is determined that the Engineer had not so failed, the termination
shall be deemed to have been effected 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.
(g) The rights and remedies of the Owner and the Engineer provided
in this clause are In addition to any other rights and remedies provided by law
or under this agreement.
6. REMEDIES
(a) Except as may be otherwise provided in this agreement, or as the
parties hereto may otherwise agree, all claims, 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
in accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association then obtaining, subject to the limitations stated in par-
agraphs (c) and (d) below. This agreement and any other agreement or
consent to arbitrate entered Into in accordance therewith as provided below,
will be specifically enforceable under the prevailing law of any court having
jurisdiction.
(b) Notice of demand for arbitration must be filed in writing with the
other party to this Agreement, with the EPA Regional Administrator and with
the American Arbitratiun Association. The demand must be made within a
reasonable time after the claim, dispute or other matter in question has arisen.
In no event may the demand for arbitration be made after the time when
institution of legal or equitable proceedings based on s�_:h claim, dispute or
other matter in question would be barred by the ,,pplicable statute of limitations.
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(c) All demands for arbitration and all answering statements thereto
which include any monetary claim must contain a staten:,_nt that the total sum
or value in controversy as alleged by the party making such demand or answering
statement is not more than $200,000 (exclusive of interest and costs) . The
arbitrators will not have jurisdiction, power or authority to consider, or make
findings (except in denial of their own jurisdiction) concerning any claim,
counter - claims, dispute or other matter in question where the amount in
controversy thereof is more than $200, 000 (exclusive of interest and costs) or
to render a monetary award in response thereto against any party which totals
more than $200,000 (exclusive of interest and costs) .
(d) No arbitration arising out of, or relating to, this agreement may
include, by consolidation, joinder or in any other manner, any additional
party not a party to this agreem :,.t.
(e) By written consent signed by all the parties to this agreement and
containing a specific reference hereto, the limitations and restrictions contained
in paragraphs (c) and (d) above may be waived in whole or in part as to any
claim, counter - claim, dispute or other matter specifically described in such
consent. No consent to arbitration in respect of a specifically described claim,
counter - claim, dispute or other matter in question will constitute consent to
arbitrate any other claim, counter - ldim, dispute or other matter in question
which is not specifically described in such consent or in which the sum or
value in controversy exceeds $200,000 (exclusive of interest and costs) or
which is with any party not specifically described therein.
(f) The award rendered by the arbitrators will be final, not subject
to appeal, and judgment may be entered upon it in any court having jurisdiction
thereof.
7. PAYMENT
(a) The Engineer may submit monthly or periodic statements requesting
payment. Such requests shall be based upon the amount and value of the work
and services performed by the Engineer under this agreement, and shall be
prepared by the Engineer and supplemented or accompanied by such supporting
data as may be required by thu Owner.
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(c) The Engineer shall not, in the performance of the work called for
by this agreement, produce a design or specification which would be restrictive
in violation of Sec. 204(a) (6) of the Federal Water Pollution Control Act (PL 92 -500) .
This statute requires that no specification for bids or statement of work may be
written in such a manner as to contain proprietary, exclusionary, or discriminatory
requirements other than those based upon performance, unless such requirements
are necessary to test or demonstrate a specific thing, or to provide for necessary
interchangeability of parts and equipment, or at least two brand names or trade
names of comparable quality or utility are listed and are followed by the words
"or equal,"
(d) The Engineer shall report to the Owner any sole- source or
restrictive design or specification giving the reason or reasons why it is
considered necessary to restrict the design or specification.
(e) The Engineer shall not knowingly specify or approve the performance
of work at a facility which is in violation of Clean Air or Water standards and
which is listed by the Director of the EPA Office of Federal Activities pursuant
to 40 CFR Part 15.
9. 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 accepted professional practice, appropriate
accounting procedures and practices, and 40 CFR Sections 30.605, 30.805,
and 35.935 -7. The Engineer shall also maintain the financial information and
data used by the Engineer in the preparation or support of the cost submission
required pursuant to 40 CFR 35.937 -6 (b) and a copy of the cost summary
submitted to the Owner. The United States Environmental Protection Agency,
the Comptroller General of the United States, the United States Department of
Labor, Owner, and (the State water pollution control agency) or any of their
duly authorized representatives shall have access to such books, records,
documents and other evidence for the purpose of inspection, audit and copying.
The Engineer will provide proper facilities for such access and inspection.
(b) The Engineer agrees to include paragraphs (a) through (e) of this
clause in all his contracts and all tier subcontracts directly related to project
performance which are in excess of $10,000.
(c) Audits conducted pursuant to this provision shall be in accordance
with generally accepted auditing standards arid established procedures and
guidelines of the reviewing or audit agency (ies) .
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(b) Upon approval of ,uch payment request by the Owner, payment
upon properly certified vouchers shall be made to the Engineer as soon as
practicable of ninety percent of the amount as determined above, less all
previous payments: Provided, however, that if the Owner determines that the
work under this agreement or any specified task hereunder is substantially
complete and that the amount of retained percentages is in excess of the
amount considered by him to be adequate for the protection of the Owner, he
may at his discretion release to the Engineer such excess amount.
(c) Upon satisfactory completim, by the Engineer of the work called
for under the terms of this agreement, and upon acceptance of such work by
the Owner, the Engineer will be paid the unpaid balance of any money due
for such work, including the retained percentages relating to this portion
of the work.
(d) Upon satisfactory completion of the work performed hereunder,
and prior to final payment under this agreement for such work, or prior
settlement upon termination of the agreement, and as a condition precedent
thereto, the Engineer shall execute and deliver to the Owner a release of
all claims against the Owner arising under or by virtue of this agreement,
other than such claims, if any, as may be spe,ifically exempted by the
Engineer from the operation of the release in stated amounts to be set forth
therein.
8. PROJECT DESIGN
(a) In the performance of this agreement, the Engineer shall, to the
extent practicable, provide for maxilnum use of structures, machines, products,
materials, construction methods, and equipment which are readily available
through competitive procurement, or through standard or proven production
techniques, methods, and processes, consistent with 40 CFR 35.936 -3 and
35.936 -13, except to the extent that advanced technology may be utilized
pursuant to 40 CFR 35.908.
(b) The Engineer shall not, in the performance of the work called for
by this agreement, produce a design or specification such as to require the use
of structures, machines, products, materkils, construction methods, equipment,
or processes which are known by the Engineer to be available only from a sole
source, unless such use has been adequately justified in writing by the Engineer
as necessary for the minimum needs of the project.
(d) The Engineer agrees'to the disclosure of all information and reports
resulting from access to records pursuant to paragraphs (a) and (b) above, to
any of the agencies referred to in paragraph (a) above. Where the audit concerns
the Engineer, the auditing agency will afford the Engineer an opportunity for an
audit exit conference and an opportunity to comment on the pertinent portions of
the draft audit report. The final audit repo: i will include the written comments,
if any, of the audited parties.
(e) Records under paragraphs (a) and (b) above shall be maintained
and made available during performance on EPA grant work under this agreement
and until three years from date of final EPA g�ra t paym ent for the project. In
addition, those reco`r'ds "wfichrelate to any Dispute" appeal under an EPA grant
agreement, or litigation, or the settlement of claims arising out of such perform-
ance, or 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.
10. PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA
(The provisions of this clause are reciriired by EPA only if the amount of
this agreement exceeds $100,000.00. The Owner may elect to utilize this clause
If the contract amount is $100,000 or less.)
(a) If the EPA Project Officer determines that any price, including profit
negotiated in connection with this agreement or any cost reimbursable under this
agreement was increased by any significant sums because the Engineer, or any
subcontractor furnished incomplete or inaccurate cost or pricing data or data not
current as certified in his certification of current cost or pricing data (EPA Form
5700 -41), then such price or cost or profit shall be reduced accordingly and the
agreement shall be modified in writing to reflect such reduction.
(b) Failure to agree on a reduction shall be subject to the "Remedies"
clause of this agreement.
(NOTE - Since the agreement is subject to reduction under this clause by
reason of defective cost or pricing data submitted in connection with certain
subcontracts, the Architect -En Ineer may wish to Include a clause in each such
subcontract requiring the subcontractor to appropriately indemnify the Architect-
Engineer. It Is also expected that any subcontractor subject to such indemnificati
will generally require substantially similar indemnification for defective cost or
p ricing data required to be submitted h, hl. 111..—
11: SUBCONTRACTS
(a) Any subcontractors and outside associates or consultants required
by the Engineer in connection with the services covered by this agreement will
be limited to such individuals or firms as were specifically identified and agreed
to during negotiations, or as are specifically approved by the Owner during the
performance of this agreement. Any substitution in such subcontractors,
associates, or consultants will be subject to the prior approval of the Owner.
(b) Except as otherwise provided in this agreement, the Engineer may
not subcontract services in excess of thirty percent (30 %) of the contract price
to subcontractors or consultants without prior written approval of the Owner.
12. LABOR STANDARDS
To the extent that this agreement involves "construction" (as defined by
the Secretary of Labor) , the Engineer agrees that such construction work shall
be subject to the following labor standards provisions, to the extent applicable:
(a) Davis -Bacon Act (40 U.S.C. 276a- 276a -7);
(b) Contract Work Hours and Safety Standards Act (40 U.S.C. 327 -333);
(c) Copeland Anti - Kickback Act (18 U.S.C. 874); and
(d) Executive Order 11246 (Equal Employment Opportunity)
and implementing rules, regulations, and relevant orders of the Secretary of Labor
or EPA; and the Engineer further agrees that this agreement shall include and be
subject to the "Labor Standards Provisions for Federally Assisted Construction
Contracts" (EPA Form 5720 -4) in effect at the time of execution of this agreement.
13. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with EPA policy as expressed in 40 CFR Section 30.420 -5, the
Engineer agrees that he will not discriminate against any employee or applicant
for employment because of race, religion, color, sex, age, or national origin.
14. UTILIZATION OF SMALL AND MINORITY BUSINESS
In accordance with EPA policy as expressed in 40 CFR 35.936 -7, the
Engineer agrees that qualified small business and minority business enterprises
shall have the maximum practicable opportunity to participate in the performance
of EPA grant - assisted contracts and subcontracts.
15. COVENANT AGAINST CONTINGENT FEES
The Engineer warrants that no person or selling agency has been employed
or retained to solicit or secure this contract upon an agreemunt or understanding
for a commission, percentage, brokerage, or contingent fee, excepting bonafide
employees. 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, the full amount of
such commission, percentage, brokerage, or contingent fee.
16. GRATUITIES
(a) The Owner may, by written notice to the Engineer, terminate the
right of the Engineer to proceed under this agreement if it is found, after notice
and hearing, by the Owner that gratuities (in the form of entertainment, gifts,
or otherwise) were offered or given by the Engineer, or any agent or repre-
sentative of the Engineer, to any official or employee of the Owner or of EPA
with a view toward securing a contract or securing favorable treatment with
respect to the awarding or amending, or the making of any determinations with
respect to the performance of this agreement: Provided, that the existence
of the facts upon which the Owner makes such findings shall be in issue and
may be reviewed in proceedings pursuant to Clause 6 (Remedies) of this
agreement.
(b) In the event this agreement is terminated as provided in
paragraph (a) hereof, the Owner shall be entitled (1) to pursue the same
remedies against the Engineer as it could pursue in the event of a breach
of the contract by the Engineer, anu (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 incurred by the Engineer in providing any such
gratuities to any such officer or employee,
(c) The rights and remedies of the Owner provided In this clause
shall not be exclusive and are in addition to any rights and remedies provided
by law or under this agreement.
17. PATENTS
If this agreement involves research, developmental, experimental, or
demonstration work and any discovery or invention arises or is developed in
the course of or under this agreement, Stich invention or discovery shall be
subject to the reporting and rights provisions of Subpart D of 40 CFR Part 30,
Including Appendix B of said Part 30. In such case, the Engineer shall report
10
the discovery or invention to EPA din•ctly or through the Owner, and shall
otherwise comply with the Owner's responsibilities in accordance with
Subpart D of 40 CFR Part 30. The Engineer hereby agrees that the disposition
of rights to invention, made under this agreement shall be in accordance with
the terms and conditions of aforementioned Appendix B. The Engineer shall
include provisions appropriate to effectuate the purposes of this condition in
all subcontracts involving research, developmental, experimental, or
demonstration work.
18. COPYRIGHTS AND RIGHTS IN DATA
(a) The Engineer agrees that any plans, drawings, specifications,
computer programs, technical reports, operating manuals, or other "Subject
Data" (as defined in Appendix C to 40 CFR Part 30) are subject to the rights
in the United States, as set forth in said Appendix C. including the right to
use, duplicate and disclose, such manuals, etc. , in whole or in part, in any
manner for any purpose whatsoever, and have others do so. For purposes
of this article, "grantee" as used in said Appendix C shall refer to the Engineer.
If the material is copyrightable, the Engineer may copyright such, as permitted
by said Appendix C, and subject to the rights in the Government as set forth in
Appendix C, but the Owner and the Federal Government reserve a royalty -free,
nonexclusive, and irreversible license to reproduce, publish and use such
materials, in whole or in part, and to authorize others to do so. The Engineer
shall include provisions appropriate to effectuate the purpose of this condition
in all subcontracts expected to produce copyrightable "Subject Data."
(b) All such "Subject Data" furnished by the Engineer pursuant to
this agreement are instruments of his services in respect of the project. It
is understood that they are not intended or represented to be suitable for
reuse on any other project. Any reuse by the Owner without specific written
verification or adaptation by the Engineer will be at the risk of the Owner and
without liability or legal exposure to Engineer. Any such verification or
adaptation will entitle the Engineer to further compensation at rates to be agreed
upon by the Owner and the Elujineer.
it
CI^Y OF CORPUS CHRISTI, TEXAS
CERTIFICATION OF FUNDS
(City Charter Article IV Section 21)
.Tune 23, 1976
I certify to the City Council that $ 41,800 , the amount required
for the contract, agreement, obligation or expenditures contemplated in the
above and foregoing ordinance is in the Treasury of the City of Corpus Christi
subject to concurrence by the Texas Water Quality Board and Environmental
Protection Agency in the City's Step 2 Grant Application for the subject
project and subsequent grant offer to the credit of:
Fund No. and Name No. 250 Sanitary Sewer
Project No. 250 -72 -11
Project Name Westside Treatment Plant Improvements
from which it is proposed to be drawn, and such money is not appropriated for
any other purpose.
19 7(,_
r
4,1=tf� 'Finance
FIN 2 -55
Revised V31/69
I •
CORPUS CHRISTI, TEXAS
DAY OF 19�
TO THE MEMBERS OF THE CITY COUNCIL
CORPUS CHRISTI, TEXAS
FOR THE REASONS SET FORTH IN THE EMERGENCY CLAUSE OF THE FOREGOING
ORDINANCE, A PUBLIC EMERGENCY AND IMPERATIVE NECESSITY EXIST FOR THE SUSPEN-
SION OF THE CHARTER RULE OR REQUIREMENT THAT.NO ORDINANCE OR RESOLUTION SHALL
BE PASSED FINALLY ON THE DATE IT IS INTRODUCED, AND THAT'SUCH ORDINANCE OR
RESOLUTION SHALL BE READ AT THREE MEETINGS OF THE CITY COUNCILS 1, THEREFORE,
REQUEST THAT YOU SUSPEND SAID CHARTER RULE OR REQUIREMENT AND PASS THIS ORDI-
NANCE FINALLY ON THE DATE IT IS INTRODUCED, OR AT THE PRESENT MEETING OF THE
CITY COUNCIL.
RESPECTFULLY,
6z-- �id� __
MAYOR
THE CITY OF CORPUS CHRISTI, AS
THE CHARTER RULE WAS SUSPENDED BY THE FOLLOWING VOTE:
JASON LUBY
DR. BILL TIPTON Cma
EDUARDO DE ASES
RUTH GILL awl
/V
BOB GULLEY
GABE LOZANO, SR.
al
EDWARD L. SAMPLE
THE ABOVE ORDINANCE WAS PASSED BY THE FOLLOWING VOTE:
JASON LUBY
OR. BILL TIPTON
EDUARDO DE ASES
RUTH GILL
BOB GULLEY
GABE LOZANO, SR.
EDWARD L. SAMPLE
