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R99-028 04-12-99RESOLUTION NO. R99-28 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO AMEND THE CONTRACT WITH MONTGOMERY- WATSON ENGINEERING FOR DESIGN OF THE FM 518 WATER MAIN EXTENSION AND WATER INTERCONNECT WITH THE CITY OF HOUSTON. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain contract amendment by and between the City of Pearland and Montgomery-Watson Engineering, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest the original of the attached contract amendment with Montgomery-Watson Engineering, for and on behalf of the City of Pearland, for design of the FM 518 water main extension and water interconnect with the City of Houston. PASSED, APPROVED and ADOPTED this the ~il~//-' , A.D., 1999. TOM REID MAYOR ATTEST: APPROVED AS TO FORM: day of ~"~~ DARRIN M. COKER CITY ATTORNEY Memo To: From: Date: Subject: Copy: Glen Erwin Alan Mueller March 24, 1999 Montgomery-Watson Engineering Contract Amendment Danin Coker (for the agenda packet) Attached is a contract amendment with Montgomery-Watson Engineering. Montgomery-Watson is the firm with which we have contracted to design the FM 518 water main extension and the water interconnect with the City of Houston. The original contract was executed on November 10, 1998, in the amount of $355,000. The engineering contract plus proposed amendment totals $538,500, which is within the amount we had projected for the project. Purpose: This contract amendment is required for two purposes: 1. The project is partially funded by a grant from the Economic Development Administration. To comply with the EDA rules for engineering contracts and design standards, a section of the EDA requirements is being added as exhibit D to the contract. There is no change of cost associated with this amendment. 2. At the time the contract was executed, the fees for the "special sentices" (surveying, geotechnical, environmental assessment, cathodic protection, wetlands determination, endangered species assessment, and antiquities assessment) had not been determined. The proposed. contract amendment totals $183,500 for all of these services. Please note some of these assessments are required due to the EDA participation in the project. Funding: Funding for this project is planned from the EDA grant ($1,500,000) with the balance (estimated at $2,258,000) coming from revenue bonds pledged from impact fees. The revenue bonds were discussed during our project planning last fall and we have continued the planning process with Frank Ildebrando. Until the bond proceeds are received, we have been charging expenses directly to an Impact Fee Fund account, to be reimbursed upon issuance of the bonds. In addition, the EDA grant is paid as a reimbursement in installments, so we have been planning the cash flow needs for the project to ensure that sufficient funds are on hand before the reimbursement is received. I have asked Darrin to place this item on the April 12 City Council agenda. Please contact me if you have any questions. AMENDMENT NO. 1 This Agreement, Amendment No. 1, by and between the CITY OF PEARLAND, TEXAS (hereinafter called "OWNER") and MONTGOMERY WATSON AMERICAS, INC., (hereinafter called "MONTGOMERY WATSON") is the first amendment to that certain Agreement executed by the OWNER and MONTGOMERY WATSTON on November 10, 1998. Only the terms which are amended by mutual agreement are set forth herin. WITNESSETH: NOW THEREFORE, it is mutually agreed that the Agreement approved by the OWNER and MONTGOMERY WATSON on November 10, 1998, is hereby modified by the addition of the following: ARTICLE 1 - GENERAL CONDITIONS (no amendment) ARTICLE 2 - COMPENSATION Delete Paragraph 2 and replace with the following: , OWNER will pay to MONTGOMERY WATSON as full compensation for the Special Services described in Attachment A, Detailed Scope of Work, a lump sum fee of $183,500. The fee for services will be based on the Schedule of Fees for Special Services, marked as Attachment C, and incorporated herin. ARTICLE 3 - PAYMENT (no amendment) ARTICLE 4 - OWNER'S RESPONSIBILITIES (no amendment) ARTICLE 5 - MONTGOMERY WATSON'S RESPONSIBILITIES Add the following: , MONTGOMERY WATSON shall comply with the applicable provisions of Section I, Item 6, of the Requirements for Approved Projects. ninth edition, as published by the U.S. Department of Commerce, a copy of which is attached as Attachment D. However, MONTGOMERY WATSON will not redesign the project per the conditions of Section I, Item, 6, G, (2). ARTICLE 6 - INSURANCE, INDEMNIFICATION. AND COMPLIANCE WITH LAWS (no amendment) ARTICLE 7 - SUSPENSION OR TERMINATION (no amendment) ARTICLE 8 - MISCELLANEOUS (no amendment) Executed this 13th day of Apri 1 ,1999. OWNER MONTGOMERY WATSON AMERICAS, INC a California corporation, Title: City Manager Title: Dated: 4/13/99 Dated: By: Title: Dated: 4/13/99 Dated: (3/93) Modified 3/99 2 Attachment C SCHEDULE OF FEES FOR SPECIAL SERVICES CITY OF PEARLAND, TEXAS COUNTY ROAD 48 WATER EXTENSION PROJECT Topographic Survey Geotechnical Investigation Environmental Cathodic Protection $ $ $ $ 86,250 50,750 39,500 7,000 Total $183,500 Note: All amounts are lump sum. March 5, 1999 Page 1 Attachment D Economic Development Administration Southwestern Region REQUIREMENTS FOR APPROVED PROJECTS Ninth Edition June 1998 U.S. Department of Commerce William M.. Daley Secretary PhillipA. Singeman Assistant Secretary for Economic Development REQUIREMENTS FOR APPROVED PROJECTS TABLE OF CONTENTS SECTION I: GENERAL AND PRE-CONSTRUCTION REQUIREMENTS Basis for Economic Development Administration Requirements A. Applicable . OMB Circulars & Code of Federal Regulations B. Purpose of this publication The EDA Grant Award A. Project description B. Standard terms and conditions C. Special conditions D. Grant expiration date E. EDA approved budget F. Performance measures Initial Actions A. Initial EDA Regional Office actions B. Pre-award construction C. Davis-Bacon requirement for pre-award construction 4. Project Management Conference Selection of the Architect/Engineer A. Pre-award selection of the A/E B. Acceptable forms of contracts The Architect/Engineer Contract for Services A. Suggested forms for contract format B. Acceptable types of cost reimbursement for A/E services C. Prohibited forms of compensation D. Basic and special services E. Construction inspection F. A/E record keeping and access to records G. Required provisions of the AJE contract Multiple Contracts and Phasing A. Project phasing B. Disbursement of the grant for phased projects g. Recipient Furnished Equipment and/or Materials Contents Page 1 Page No. I-1 I-1 I-1 I-1 I-1 I-2 I-2 I-2 I-2 I-2 I-2 I-2 I-3 I-3 I-3 I-3 I-4 I-4 I-4 I-4 I-4 I-9 1-10 1-10 Services Performed by the Recipient's Own Forces A. Use of in-house forces B. Use of force-account forces C. Guide publication 10. Construction Management Services A. Definition of constrUction management services B. Cost threshold C. EDA approval for cost reimbursement D. Compensation E. Assigning responsibility 11. Certification of Acquisition of Land, ROW and Easements 12. 13. 14. 15. 16. 17. 18. A. Title, easements, rights-of-way, etc. B. Title opinions C. Amount and cost of land, etc. D. Changes in amount and cost of land E. Federally owned/controlled airfield restriction Relocation Assistance Certification of Adequacy of Treatment of sewage and other waste A. Requirements of Section 106 of EDA legislation B. Applicability of Section 106 C. Exceptions D. Required information Project Financing Safeguarding Funds A. Documentation of project costs B. Use of minority banks C. Separate bank accounts D. Bonding of project fund custodian Department of Commerce Metric Program Seasonality Design for the Handicapped A. Source of requirement B. Requirements for buildings C. Exceptions D. Waivers 1-10 1-11 1-11 I-ll l-ll 1-11 1-12 1-12 1-12 1-12 1-12 1-12 1-12 1-12 1-13 1-13 1-13 1-13 1-15 1-15 1-15 1-15 1-15 1-15 1-15 1-15 1-16 1-16 1-16 Contents Page 2 19. Program income and Interest on Advances A. Acceptable uses of program income B. Keeping EDA informed C. Sale of real and personal property D. Accounting for program income E. Sales tax refunds F. Liquidated and actual damages 20. Reporting of Project Progress 21. A. Recipient review of project progress B. The project performance report C. Project performance report due dates D. Reporting non-routine performance, items E. Project performance report format F. Grant advances G. Delinquent performance reports Environmental Requirements A. Policy statement B. Applicable directives C. Hazardous substances requirements 22 Project Revisions SECTION II: CONTRACTING FOR PROJECT CONSTRUCTION 1. Contracting Standards A. State recipients B. Recipients other than states C. The contract administration system D. Standards of Conduct E. State and local agreements F. Use of surplus property G. Value Engineering H. Awards to Responsible Contractors I. Maintenance of records J. Use of Time and Material contracts K. Settlement of contractual issues L. Protest procedures Competition in Procurement A. Full and open competition B. Prohibition of use of state or local geographical preferences C. Requirements for procurement actions D. Use of prequalification lists Contents Page 3 1-16 1-16 1-16 1-17 1-17 1-17 1-17 1-17 1-17 1-17 1-18 1-18 1-18 1-19 1-19 1-19 1-19 II-1 II-1 II-1 II-1 II-2 II-2 II-2 II-2 II-2 II-2 II-2 II-3 II-3 II-3 II-4 II4 , , 10. 11. 12. Acceptable Methods of Procurement A. Small purchase procedures B. Procurement by sealed bids C. Requirements for sealed bids D. Procurement by competitive proposals E. Procurement by noncompetitive proposals Unacceptable Method of Procurement Contracting with Disadvantaged Firms A. Affirmative steps for use of disadvantaged.firms Contract Cost and Price Analysis A. The price analysis B. The profit line item C. Federal cost principles D. Prohibited methods of contracting Advertising for Bids A. Frequency of advertisement for bids B. Requirements for projects over $1,000,000 C. Additional circulation of invitation for bids D. Thirty day limit Bonding and Insurance Requirements A. Minimum bond umounts B. Insurance requirements Bid Schedules for Alternative Materials A. Use of bid schedules B. Method of award C. Exceptions and deviations Non-EDA Work A. Requirements for adding non-EDA work B. Restrictions on award of contract Protest Procedures EDA A. B. C. D. E. F. Review of Procurement Documents EDA preaward review Self-certification EDA requirements for procurement documents Accuracy of plans specification and contracts Use of standardized documents Proceeding at recipient's risk II-4 II-4 II-5 II-5 II-6 II-6 II-6 II-7 II-7 II-7 II-7 II-7 II-7 II-8 II-8 II-8 II-8 II-8 II-9 II-9 II-9 II-9 II-10 II-10 II-10 II-10 II-10 II-I 1 II-11 Contents Page 4 13. Construction and Services Contract Provisions A. Required contract documents B. Cost documentation C. Required contract provisions 14. Wage Rates 15. 16. 17. 18. 19. A. Applicable Act B. Wage rate coverage C. Different types of coverage D. Period of wage rate validity E. Application and exception for wage rates F. Exceptions for railroads and public utilities. G. EDA or Department of Labor investigations H. Record retention I. Retroactivity of wage rates The Bid Opening A. EDA representation at the bid opening B. Recipient's report Overrun at Bid Opening A. When lowest bid exceeds funds available B. When lowest bid less deductive alternates exceeds funds available Underrun at Bid Opening A. EDA notification B. Restriction on use of the underrun funds EDA Approval of the Contract Award A. EDA approval B. Requirements for EDA approval C. Checking debarred ineligible or suspended contractors Executed Bid Award ' A. Contents of executed contract documents to be furnished to EDA 20. Preconstruction Conference SECTION III: CONSTRUCTION PROCEDURES Recipient Responsibilities A. Recipient responsibilities for project monitoring B. Recipient responsibilities for project documents 2. Employment of In-House or Force Account Employees Contents Page 5 II-11 II-ll II-11 II-16 II-16 II-16 II-16 II-16 II-17 II-17 II-17 II-17 II-17 II-17 II-18 II-18 II-19 II-19 II-19 II-19 II-20 II-20 II-20 III-1 III-1 A. Use of in-house forces B. Use of force account Employment of Local Labor A. Anticipated labor requirements B. Inclusion in contracts and subcontracts Construction Progress Schedule A. Construction progress chart B. Monthly update C. Acceptable formats Insurance Requirements A. Insurance requirements B. Recipients responsibility for continuing coverage Construction Sign A. Contractor responsibility B. Location of sign C. Local agency coordination D. Modification of sign specifications E. Bilingual signs Inspection of Construction Occupancy Prior to Completion A. Recipient responsibilities B. Role of EDA Contractor Payrolls A. Payroll retention requirements B. Applicable Executive Order and form C. EDA copies 10. Contract Change Orders 11. A. Notification to and approval from EDA B. Cost and price analysis C. Required copies D. Prohibited change of scope E. Change order requirements F. EDA approval G. Substantial variations Inspection for Final Acceptance A. Final inspection B. Interested parties III-I III-1 III-1 III-1 III-2 III-2 III-2 III-2 III-2 III-2 III-2 III-2 II1-3 III-3 III-3 III-3 III-3 III-3 II1-4 III-4 III-4 III -4 III-4 III-4 III-5 III-5 III-5' III-5 III-5 Contents Page 6 I I 1 I .',~ i | ! · 12. Specific Requirements for Subcontractors 13. Safety SECTION IV: FINANCIAL ADMINISTRATION 2. 3. 4. 5. Standards for Financial Management Systems A. Requirements for State recipients B. Requirements for other recipients C. EDA review Grant Disbursements A. The reimbursement method B. Effect of program income C. Withholding payments D. Cash depositories E. Interest earned on advances Allowable Costs A. Limitation on use of funds B. Applicable cost principles Period of Availability of Funds A. General B. Liquidation of obligations Matching or Cost Sharing A. Basic rule B. Qualification and exceptions C. Valuation of donated services D. Valuation of 3rd party donated supplies and loaned equipment or space E. Valuation of 3 rd party donated equipment, land and buildings F. Valuation of Redipient donated real property for construction/acquisition G. Appraisal of real property Program Income A. General B. Definition of program income C. Cost of generating program income D. Governmental revenues E. Royalties F. Sale of real property G. Use of program income H. Income after the award period Contents Page 7 III-5 III-6 IV-1 IV-1 IV-2 IV-2 IV-2 IV-2 IV -2 IV-3 IV-3 IV-3 IV-4 IV -4 IV-4 IV-4 IV-6 IV-6 IV-6 IV-7 IV-7 IV-7 IV-7 IV-8 IV-8 IV-8 IV-8 IV-8 IV-8 7. Non-Federal Audit IV-9 SECTION V: AMENDMENTS TO GRANT AGREEMENTS General Requirements A. Unforseen problems B. Types of project amendments C. Change of scope determination 2. Changes to the Project Scope A. Definition of project scope B. Approval by EDA C. Types of project modifications D. EDA review of proposed modifications Time Extensions A. Recipient responsibilities B. EDA review C. Possible termination Budget Line Item Revisions A. Requirements for approval by EDA B. Transfers between budget line items C. Transfer from contingencies line item D. Use of underrun funds E. Notification of budget line item changes Additional EDA Funding A. Request for additional EDA funds B. Proceeding before EDA approval 6. Termination of the EDA Grant A. Termination for cause B. Termination for convenience V-1 V-I V-I V-1 V-1 V-2 V-2 V-2 V-2 V-2 V-3 V-3 V-3 V-3 V-3 V-3 V-4 V-4 V-5 SECTION VI: PUBLIC WORKS PROJECT CLOSEOUT PROCEDURES Audit Requirements A. Securing Single Audit Act audit B. Specific audits C. Department of Commerce audits D. Audit standards 2. Closeout Procedures VI-1 VI-1 VI-1 VI-1 Contents Page 8 A. Notification to EDA B. Final grant disbursement C. EDA advisory of cost found eligible SECTION VII: POST CONSTRUCTION PROCEDURES Real A. B. C. D. E. Property Grantee ownership EDA's reversionary interest Successor grantees Applicability of requirements ' Property no longer needed for grant purposes Mortgages A. Restrictions on encumbrances B. Waivers C. Water and sewer exceptions 3. Civil Rights requirements SECTION VIII: EXHIBITS VI-I VI-2 VI-3 VII-1 VII-1 VII-1 VII-1 VII-1 VII-2 VII -2 VII-2 VII-4 1 I 1 I 1 l t Contents Page 9 SECTION I GENERAL AND PRE-CONSTRUCTION REQUIREMENTS Basis for Economic Development Administration Requirements A. These Requirements for Approved Projects are based on Office of Management and Budget administrative requirements for Federal grants as set forth in OMB Circulars and on regulations set forth in the Code of Federal Regulations, Section 13, Chapter III and Section 15, Part 24. These Requirements for Approved Projects are intended to supplement, amplify, and explain the Federal requirements cited above. They are not intended to replace or negate the cited Federal requirements. Conflicts between these Requirements for Approved Projects and the documents referred to above should be brought to the anention of EDA immediately. Unless otherwise stated, the reference to EDA in this booklet shall mean the EDA Regional Office. 2. The EDA Grant Award The EDA grant award contains information vital to the accomplishmeat of the project. It should be read carefully with particular anention paid to: The description of the project. This description and the corresponding scope of work must be adhered to. Proposed changes to EDA approved projects will be pertained only if they are necessary to the proper functioning of the project as described in the grant award. Enhancements to the project that were not envisioned in the grant award will not be approved for EDA participation. The Standard Terms and Conditions for Title I Public Works and Development Facilities and Title IX Economic Adjustment Construction Projects. The Standard Terms and Conditions contain, by reference or substance, a summary of the pertinent statutes, regulations published in the Federal Register or Code of Federal Regulations, Executive Orders or OMB Circulars. The Special Conditions of the grant award. The Special Conditions generally contain two types of information. The first type relates specifically to the grant being awarded. The second type relates to all approved grants and are of recent origin and therefore have not yet been incorporated into the Standard Terms and Conditions. Special anention should be paid to the Project Development Time Schedule. The time schedule can only be extended as a result of a written request from the Recipient and a written approval by EDA. Failure to meet the time schedule is considered a violation of the grant award and may result in action by EDA to suspend and/or terminate the grant. No disbursement of EDA grant funds is pertained when a project has exceeded the time schedule in the grant award unless EDA has given written approval to a time schedule extension. Section I Page 1 Please note that, unless otherwise stated, EDA funds are available for a period beginning at the time the project is approved and ending five years after the end of the fiscal year in which the project was approved. Any funds not disbursed to the Recipient before the end of that period are automatically canceled and will be aleobligated and will no longer be available for payment of costs incurred by the Recipient. , The EDA approved budget. The addition of line items to the EDA approved budget is not permitted. Shifts of funds between approved line items in the budget, if in excess of 10% of the total amount of the award, require written approval from EDA. Performance Measures. The Standard Te..nZns and Conditions of the EDA grant award reference "Core Performance Measures" that require post-construction reports to be submitted to EDA. The first report will be due prior to final grant disbursement. The second will be due two years after submission of the first report. The third will be due four years after the first report. Questions regarding the content on submission of these reports should be directed to the EDA regional office. Initial Actions After the Grant Award has been affirmed, the EDA Regional Office will mail a pre-construction package to the Recipient that includes, at a' minimum, 2 copies of "Requirements for Approved Projects", and a list of items that need special attention (such as the project development schedule), and a list of any problems identified during the preapproval review process. The EDA Project Manager will then contact the Recipient to offer assistance and guidance, to arrange for an updated schedule of the Recipient's proposed activities and to arrange a Project Management Conference. Because it is the policy of EDA to discourage'the undertaking of any construction prior to the submission of an application for financial assistance special consideration and judgement must be executed if it becomes necessary for a project to proceed prior to award of the EDA grant. Commencement of a project prior to approval of the application for assistance is not prohibited, but it may jeopardize the favorable consideration of such application since, among other things, it raises a rebuttable presumption that funds necessary for the accomplishment of the project are otherwise available and that proper contracting procedures and labor standards may not have been followed. If construction of the project was begun before affirmation of the grant award, the Recipient will be required to document to EDA's satisfaction that it has complied with all' EDA requirements, including the payment of Davis-Bacon wages from the start of construction, in order to qualify for EDA reimbursement of costs incurred. Project Management Conference Whenever practical, the Project Management Conference will be held at the Recipient's location; however, if necessary and required for appropriate EDA Regional Office personnel Section I Page 2 1 l ! I I to be present, it may be held at another location including in the Regional Office. The Recipient's Authorized Representative, Architect/Engineer, attorney and possibly the Recipient's financial representative should be in attendance. Reasonable costs for transportation, meals and lodging for these individuals are an authorized cost under the administrative line item in the project budget. Per diem costs eligible for EDA reimbursement may not exceed the current Federal per diem rate. Selection of the Architect/Engineer If an Architect/Engineer has been selected by the Recipient prior to EDA approval of the grant award and the contract between the Recipient and the Architect/Engineer has not been previously submitted to EDA, it should'be submitted as soon after the grant award as possible. If the selection has not been made at the time of grant award the contract should be sent to the EDA Regional Office as soon as possible after its execution by both parties. For EDA to participate in the cost for Architect/Engineer services the Architect/Engineer must be selected competitively by sealed bids (formal advertising) or by competitive proposals. If the selection is made by competitive proposal the following requirements apply: (1) Requests for proposals will be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals shall be honored to the maximum extent practical. (2) Proposals will be solicited from an adequate number of qualified sources (normally sufficient to secure at least three proposals from qualified proposers). (3) The Recipient will have a method for conducting technical evaluations of proposals received and for selecting the best proposal, price and other factors considered. (4) The Recipient will determine the' responsible firm whose proposal is most advantageous to the program, with price and other factors considered. Competitor's qualifications will be evaluated and the most qualified competitor will be selected, subject to negotiation of fair and reasonable compensation. The Architect/Engineer Contract for Services The Architect/Engineer agreement shall provide for all services required by the recipient for the planning, design and construction phase of the proposed project. Appropriate standards or guides developed by such professional organizations as the American Consulting Engineers Council (ACEC), American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE), and/or the American Institute of Architects (AIA) may be used where the Recipient does not have standard procurement documents. Section I Page 3 Do The Architect/Engineer's fee for basic services must be either a fixed price or a cost i'eimbursement with an agreed maximum to be eligible for EDA participation. The amount of EDA participation will be based on a determination, subject to audit, that the compensation is reasonable. The use of the cost-plus-a-percentage of cost and percentage of construction cost i'orms of compensation are specifically prohibited. The Architect/Engineer's fee shall cover all services necessary for the successful execution of the project, including consultations, surveys, soil investigations, supervision, travel, "as-built" or record drawings, arrow diagram (CPM/PERT) where applicable, and incidental costs. The basic fee shall not exceed that prevailing for comparable services in the project area. If the total fee is in excess of the prevailing rate because of special services to be 'performed, these services shall be identified in the agreement. Such additional charges may be approved for grant participation by the EDA Regional Office if they: (1) Do not duplicate a charge for services provided for in the basic fee and are within the normal scope of the Architect/Engineer's responsibilities; (2) Are a proper charge against the project cost; and (3) Are reasonable for the extra services to be rendered. Regardless of who furnishes the construction inspector, the Architect/Engineer shall be held responsible for making sufficient visits to the project site to determine, in general, if the work is proceeding in accordance with the construction contract. All negotiated Architect/Engineer contracts (except those of $10,000 or less awarded under small purchase procedures) awarded by Recipients shall include a provision to the effect that the Recipient, EDA, the Comptroller General of the United States, the Inspector General of the Department of Commerce, or any of their duly authorized representatives, shall have access to any documents, books, papers, and records of the Architect/Engineer (which are directly pertinent to a specific grant program) for the purpose of making an audit, examination, excerpts, and transcriptions. The Recipient shall require the Architect/Engineer to maintain all required records for at least three years after the Recipient makes final payment and all pending matters are closed. The agreement for Architect/Engineer services shall provide an adequate basis for the Recipient to require the ArchitecVEngineer to: (1) Design the project in accordance with the intent of the Grant Award; (2) Redesign the project in the event the preliminary cost estimate, the final cost estimate, or the lowest responsive bid less deductive alternates, exceeds the funds available by an amount or percentage to be mutually agreeable to the' Recipient and Section I Page 4 I 1 (3) (4) the Architect/Engineer; Design any sewage treatment or other sewage facility so that a certificate of adequacy of treatment can be obtained as required by Section 106 of the Public Works and Economic Development Act of 1965; Include in all contracts and subcontracts of mounts in excess of $100,000 a provision which requires compliance with all applicable standards, orders, or requirements issued under the Clean Air Act (42 U.S.C. 7401 el. seq.) and the Federal Water Pollution Control Act (33 U.S.C 1251 el. seq., as mended). Violations shall be reported to EDA and to the regional office of the U. S. Environmental Protection Agency; · (5) Include in all contracts and sUbcontracts in excess of the small purchase threshold of $100,000 provisions or conditions which will allow for administrative, contractual or legal remedies in instances where contractors violate or 'breach contract terms, and provide for such sanctions and penalties as may be appropriate; (6) Include in all contracts in excess of $10,000 suitable provisions for termination by the Recipient including the manner in which it will be affected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor; (7) (8) (9) Include in all contracts in excess of $10,000 a provision requiring compliance with Executive Order 11246, entitled "Equal Employment Opportunity," as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CFR Part 60); Include in all contracts in excess of $2,000 for construction or repair a provision for compliance with the Copeland "Anti-Kickback"Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR, Part 3). This Act provides that each contractor or subrecipient shall be prohibited. from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The Recipient shall report all suspected or reported violations to EDA; Include in all construction contracts in excess of $2,000 a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5). Under this Act contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less often than once a week. A copy of the current prevailing wage determination issued by the Department of Labor must be included in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. All suspected or Section I Page 5 (lo) (11) (12) (13) reported violations shall be reported to EDA. Davis-Bacon wage determinations are not applicable to "Force Account" workers; Include in all contracts in excess of $2,000 for construction contracts and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers, a provision for compliance with Sections 102 and 107 of the cobtract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CFR, Part 5). Under Section 103 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate not less than 1-1/2 times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to .construction work and provides that no 'laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for .transportation or transmission of intelligence. Work performed by employees of the Recipient (in-house forces) on the EDA assisted project will be subject to the following: Work performed in excess of eight hours per day will be reimbursed by EDA at the normal rate of pay unless the Recipient can show that a higher rate is required by State or local law or union contract. Work performed in excess of 40 hours per week may be reimbursed by EDA at a higher rate than normal if the Recipient can show that it normally pays. for such work at a higher rate. In any case the rate for work in excess of 40 hours per week may not exceed one and one half times the normal hourly rate. Include a notice in all contracts involving research, developmental, experimental or demonstration work requiring that all patentable processes, discoveries or inventions which arise or are developed in the course of, or under, such contract shall be reported to EDA. The notice will state that the Government has an interest in any such patentable processes, discoveries or inventions corresponding to the percentage of total project cost funded by EDA; Include in all negotiated contracts (except those awarded by small purchase procedures) a provision to the effect that the Recipient, EDA, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents? papers, and records of the contractor which are directly pertinent to that specific contract, for the purpose of making audit, examination, excerpts, and transcriptions; Include in all contracts a requirement that the contractor maintain all relevant Section I Page 6 (14) (15) (16) (17) (is) (19) (20) (21) project records for three years after the Recipient has made final payment to the contractor and all other pending matters are closed; State a specific timetable in the agreement for: a, Completing preliminary plans and associated cost estimates; b. Completing final plans, specifications, and cost estimates; c. Securing required State and local approvals; and Completing proposed contract documents in a form sufficient for soliciting bids for construction oft he project. If the Recipient has executed an Architect/Engineer agreement without such a requirement for a timetable, EDA shall require that an addendum to the agreement be executed to incorporate this requirement. ' Provide surveillance of project construction to assure compliance with plans, specifications, and all other contract documents. If the Recipient chooses to use the Architect/Engineer as the project inspector, the requirements for construction. inspection services shall be clearly defined and a limit placed on the amount the Recipient is required to pay for such services; Be responsible for any damages arising from any defects in design or negligence in the performance of the construction inspector, if the inspector is furnished by the Architect/Engineer. EDA recommendSthat the Architect/Engineer be required to take insurance, when available, to cover liability for such damages; Supervise any required subsurface explorations such as borings, soil tests, and the like, to determine amounts of rock excavation or foundation conditions, no matter whether they are performed by the Architect/Engineer or by others paid by the Recipient; Attend bid openings, prepare and submit tabulation of bids, and make a recommendation as to contract award; Review proof of bidder's qualifications and recommend approval or disapproval; Prepare and submit proposed contract change orders when applicable. There shall be no charge to the Recipient when the change order is required to correct errors or omissions by the Architect/Engineer. To be eligible for EDA participation the specific change order must have express approval from EDA and must have some form of cost or price analysis performed by the Recipient or the Architect/Engineer; Submit a report not less frequently than quarterly to the Recipient covering the Section I Page 7 (22) (23) (24) (25) (26) (27) general progress of the job and describing any problems or factors contributing to delay; Review and approve the contractor's schedule of mounts for contract payment; Certify partial payments to contractors; Assure that a ten percent (10%) retainage is withheld from all payments on construction contracts until final acceptance by the Recipient and approval by the EDA Regional Office, unless State or local law provides otherwise; Prepare "as-built" or record drawings ~f~er completion of the project. Reproducible originals will be fumished to the Recipient within 60 days after all construction has been completed and the final inspection has been performed. One set of copies shall be furnished to the EDA Regional Office only if requested by the Regional Office; Review and approve Contractor's submission of samples and shop drawings, where applicable; Comply with all Federal statutes relating to non-discrimination. These include but' are not limited to: Title VI of the 'Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972, as mended (20 U.S.C. 1681 -1683, and 1685-1686) which prohibits discrimination on the basis of sex; Ce Section 504 of the Rehabilitation Act of 1973, as mended (29 U.S.C. 794) which prohibits discrimination on the basis of handicaps; The Age Discrimination Act of 1975, as amended (42 U.S.C. 6101-6107) which prohibits discrimination because of age; The Drug Abuse Office and Treatment Act of 1972 P.L. 93-255), as mended, relating to non-discrimination on the basis of drug abuse; The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as mended, relating to non- discrimination on the basis alcohol abuse or alcoholism; 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; Section I Page 8 I ! ! | I 1 1 (28) (29) (30) (31) (32) (33) (34) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et. seq.), as amended, relating to non-discrimination in the sale, rental or financing of housing; Any other non-discrimination provisions in the specific statute(s) finder which the application for Federal assistance is being made; and The requirements on any other non-discrimination statute(s) which may apply. Incorporate into the proposed construction contract documents a designation of all of the different types of construction which will be used for the project; such as Building, Heavy or Highway in accordance with all local and State laws and practices. For this purpose either the plans, the specifications or both shall clearly delineate where each type stops and another starts; Consider in the establishment of the compensation any cost savings that may be realized through multiple use of the same design; Provide in all proposed construction contracts deductive altexnates which can be taken, if necessary, to reduce the bid price (additive alternates will not be eligible for EDA participation), so that the lowest responsive base bid for construction of the project will not exceed the funds available; Design the facility to comply with the Americans with Disabilities Act .(ADA) (P.L. 101-336) and the Accessibility Guidelines for Buildings and Facilities, as amended, (36 CFR Part 191 and Executive Order 12699); Design for seismic safety in accordance with Executive Order 12699 which imposes requirements that federally assisted facilities be designed and constructed in accordance with the 1991 ICBO Uniform Building Code or 1992 Supplement to the BOCA National Building Code and/or 1991 Amendments to the SBCC Standard Building Code. Provide sufficient plans, specifications, bid sheets, cost estimates, design analysis, and other contract documents required for the project. The number of copies to be furnished by the Architect/Engineer as part of his/her compensation for basic services shall be specified; and Use forms for instructions to bidders, general conditions, contract, bid bond, performance bond, and payment bond which meet EDA requirements. All proposed contract documents are subject to EDA approval. Documents contained in" Contract Documents for Construction of Federally Assisted Water and Sewer Projects" are acceptable to EDA for this purpose. Section I Page 9 7. Multiple Contracts and Phasing The Recipient is strongly urged to award all contracts for 'the project construction at one time. Where compelling reasons justify phasing the project, the Recipient must secure the approval of the Regional Office for phasing prior to advertising any portion fo.r bid. The Recipient's request for approval of phasing must include: (1) Valid reasons justifying the request. (2) A statement from the Recipient that it can, and will, fund any overrun that arises in the later phases. Normally EDA will not disburse funds until all construction contracts have been awarded, (for example, an exception is the development of a water source when required to determine the availability of an adequate source of water supply in terms of both quality and quantity and called for in the Grant Agreement). Disbursement of grant funds by phases must be approved by EDA. Such approvals will be given only if the Recipient can demonstrate that a severe hardship will result if such approval is not given and there are compelling reasons why all phases cannot be contracted for at the same time. The Recipient must be capable of meeting incurred costs prior to the first disbursement of EDA grant funds. Recipient Furnished Equipment and/or Materials The Recipient may wish to incorporate into the project equipment and/or materials which it will secure through its own efforts. It is the responsibility of the Recipient to assure that such equipment and/or materials are adequate for the proposed use. The use of such equipment and materials must be approved by the EDA Regional Office to be eligible for EDA financial participation. The Recipient must be prepared to show that the cost claimed for such equipment and/or materials is competitive with the local market. Acquisitions of Recipient furnished equipment and/or materials under this section is subject to the requirements of 15 CFR Part 24 or OMB Circular A-110 (or any DOC rule implementing such Circular, as applicable). The Recipient shall be required to submit with its request for approval either a paid invoice or current quotes from not less than three suppliers who normally distribute such equipment and/or materials. EDA may require that major equipment items be subject to a lien in favor of EDA and may also require a statement from the Recipient regarding expected useful life and salvage value. Services Performed by the Recipient's Own Forces The Recipient may have a portion or all of the design, construction, inspection, legal services, or other work and/or services in connection with the project performed. by personnel who are employed by the Recipient either full-time or part-time (in-house), subject to the following conditions: (1) EDA must review and approve the Recipient's plan if this method is to be elected Section I Page 10 ! ! 1 by the Recipient. (2) Such work or services performed by in-house personnel may be considered an eligible cost for EDA reimbursement if in conformance with Office of Management and Budget Circular A-87. (3) If a portion of the Architect/Engineer services is to be performed by in-house forces, the Recipient will submit a statement listing the services to be so performed. This statement should accompany the Architect/Engineer Agreement when it is submitted to EDA for approval. Due to the difficulty in monitoring force account construction and the limited EDA staff available to perform the monitoring, force account construction is strongly discouraged. The force account method of construction may be approved only if: ( 1 ) The Recipient has a special skill required for the construction, e.g., construction of unique Indian structures, or (2) Substantial cost savings can be demonstrated, or (3) The Regional Office is satisfied that the Recipient has made all reasonable efforts. · to obtain a contractor, but has failed to do so because of uncontrollable factors, such as the remoteness of the site combined with a small contract or an overabundance of construction work in the project area, or (4) It has been determined by the Regional Office that special circumstances require its use to successfully complete the project. The publication, Guidelines for Force Account Proiects can be secured from the EDA Regional Office. This publication can be very helpful in ensuring that EDA can approve this type of project activity for reimbursement from the grant. 10. Construction Management Services For the purposes of this document, Construction Management is defined as the services of a firm with competent and experienced staff to act as the Recipient's agent to perform all or part of the following: (1) Aid the project designer to find expedited or less costly methods of construction (Value Engineering). (2) Monitor the contracting process. This may vary in scope from giving advice to the Recipient to complete control of the contracting process. (3) Inspection or supervision of inspection of the construction work. Section I Page 11 (4) Controlling the expenditure of project funds on a multi-faceted or highly complex project. (5) Controlling unusual methods of contracting such as "fast track" or "turn-key". EDA will not normally approve the use of a Construction Management firm for p~:ojects costing less than $5 million. C. If the Recipient wishes to use a Construction Manager, EDA will participate in such costs only if EDA approves the proposed or actual contract for such services between the Recipient and the Construction Manager. D. The compensation for Construction Management services is subject to the same rules as those for Architect/Engineer services. The Construction Management Agreement must spell out who. is responsible for conslamction inspection, approval of construction and supply contracts, change orders and other areas of possible conflicts (i.e. the division of responsibility and authority between the Recipient, the Architect/Engineer and the Construction Manager). 11. Certification of Acquisition of Land, Easements and Rights-of-Way .:.: Prior to solicitation of bids for construction work or whenever the EDA requests, the Recipient must furnish evidence satisfactory to the Regional Counsel in the EDA Regional Office that it has good and merchantable title to the tracts or parcels of land on which buildings, structures, or other project improvements will be located, with any liens or encumbrances noted, and that it has obtained all necessary easements, permits, rights-of-way, franchises, condemnations, and all Federal, State and local approvals necessary to the completion of the project. To aid the Regional Counsel in making his/her determination, the Recipient must furnish a description of the sites and rights-of-way on which the project will be located. Included in the exhibits to this Volume is a, "Certificate as to Project Site, Rights-of-Way, and Easements," which is a format acceptable to EDA as evidence of the Recipient's title to the real property necessary for the project. The Recipient has the option to prepare the title opinion in a format that meets local law or custom. Any title opinion submitted must be approved by the EDA Regional Counsel who may require additional documentation. The EDA project file must be documented to show the basis for determining that the amount of land acquired and the cost of the land is reasonable. If an appraisal is required, a professional appraiser(s) should perform the service. An appraiser registered with a national society and/or licensed by the State will normally be required. Any significant change in the amount and cost of land from that upon which the project approval was based must be approved by EDA to be eligible for EDA reimbursement. Section I Page 12 l .I No financial assistance under the Act will be approved for a pi'oject involving public or privately owned land adjacent to or in the vicinity of a federally owned or operated airfield, unless the Recipient can demonstrate that the proposed project is compatible with the airfield land use plan prepared for that facility. 12. Relocation assistance The provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646), as amended, are applicable to all recipients of EDA funding assistance except non-governmental units such as nonprofit organizations and Indian tribes. This ACt requires .financial and other assistance to persons, businesses, or farm operations displaced from real property acquired for a project financed wholly or in pan with Federal funds. It also requires compliance with specific guidelines pertaining to reimbursable costs incidental to such land acquisition. Recipients are required to comply fully with the intent of this Act. 13. Certification of Adequacy of Treatment of Sewage and Other Waste A, Section 106 of the Public Works and Economic Development Act of 1965, as amended, states that EDA may not provide financial assistance for projects involving sewer or other waste disposal facilities without a certificate of adequacy of treatment from the . Environmental Protection Agency (EPA). Section 106 applies to any project which handles sanitary sewage flow and/or storm drainage. EDA must obtain the certificate of adequacy of treatment prior to disbursement of EDA funds for any project of this type funded by EDA. C. Certification under Section 106 is not required under the following conditions: (1) For single service connections unless an unusual effluent is expected. (2) Clearance under Section 106 is not normally necessary for replacement of portions of an existing sewer system where sewage flow resulting from the project is not increased. (3) For projects which will include only storm drainage as the component and the flow from the storm sewer is not introduced in the existing sanitary sewer system. If a Section 106 certification is required EDA will not authorize the advertising, bid opening nor a disbursement of grant funds until an unconditional 106 certificate has been obtained. The EDA Project Manager will prepare all EDA requests to EPA (in some instances States have been delegated the authority to issue certificates) for Certificates of Adequacy of Treatment as required by Section 106 of the Act for projects which involve sewage and/or storm drainage facilities. The 106 certification should be obtained as early as practicable after acceptance of the project application by EDA. The Recipient must provide as much of the following information as is required to obtain a Section 106 Section I Page 13 certification: (1) For sanitary sewer system a. A general descriptive statement of the project explaining the problem,to be eliminated and the proposed method of elimination. b. A vicinity map of the complete project area showing the location and size of all existing and proposed sanitary and storm sewer lines in plan view, the street system, topographical features, overflows and bypasses. c. Project design criteria, includi~g the following data: /_ Industrial and domestic contribution. (Type of industrial contribution should be stated). 2 Line and treatment facility sizing and design criteria used therefor. 3_ Population figures used. _4 Number of existing and planned sewer connec'timas. d. Design criteria to be used for the new treatment facilities. This should include the following data: / Type and extent of existing treatment. 2 Industrial and domestic contribution. (Type of industrial contribution should be stated). 3_ Peak and average flow data. _4 Component sizing and design criteria used there. for. e. For existing treatment facilities to be affected by the proposed project submit the design criteria, permit number and effluent limitations. f. If available, as-built drawings of existing treatment facilities showing the location, 'type, number and size of the treatment facilities. If as-built drawings are not available a single line drawing of the existing structures such as lift stations, manholes, pumping stations, etc., will be accepted. g. Agreements, if any,,for treatment by other entities. (2) For projects involving only storm sewer facilities submit the following dated statement, signed by the Recipient's authorized representative; "This proposed Section I Page 14 (3) storm water sewer system will be constructed and operated so as to exclude the introduction of domestic sewage and industrial or agricultural waste and will not be connected in any way to a sanitary sewer system." Upon receipt by EDA, the certification of adequacy of treatment will be revie. wed to assure that the certification is unconditional. EDA will not accept a conditional Section 106 certification (defined as an approval conditioned on the occurrence of a future event such as the future construction of a sewage treatment plant). 14. Project Financing Prior to obtaining EDA approval of the project's final plans and specifications, the Recipient should furnish evidence to the EDA Project Manager that the Recipient has its share of matching funds either on hand or firmly committed. Any change in the mount or availability of the Recipient's share must be made known to EDA at this time. This is equally true of the interim financing mount and availability. 15. Safeguarding Funds Checks drawn to pay project costs will be signed by the Authorized Representative of the Recipient and may be counter-signed by other representatives of the Recipient if he/she so designates. The Recipient shall retain all bank statements, deposit slips, canoeled checks, and related invoices pertaining to these project costs to facilitate final audit. Consistent with the national goal of expanding the opportunities for minority business enterprises, Recipients are encouraged to use minority banks as the depository for project funds. Although a separate bank account is not required by EDA, the Recipient is urged to use one for the EDA project as it will be helpful to audit project costs claimed by the Recipient at project closeout. For non-governmental Recipients EDA requires that the Recipient furnish evidence that the custodian of the project funds is bonded in an amount not less than the mount of the EDA grant. The Recipient must furnish assurances that the Recipient's financial management system meets the requirements of 15 CFR Part 24.20, Financial Administration, if this was not accomplished prior to approval of the grant award. 16. Department of Commerce Metric Program 17. Section 5164 of the Omnibus Trade and Competitiveness Act of t988 (P.L. 100-418) designates the metric system of measurement as the preferred system of weights and measures for U.S. trade and commerce. Seasonality Section I Page 15 It is EDA policy to promote construction of projects continuously throughou! the year. Recipients and their Architect/Engineers are encouraged to design projects so that construction will not be unreasonably curtailed by weather. 18. Design for the Handicapped Any building or facility financed in whole or in part with assistance under the Act must be designed, constructed, or altered, so as to insure ready access to, and use of, such building or facility by the physically handicapped, as required by P.L. 90-480 (42 U.S.C. 4151.4 156) and the regulations promulgated thereunder (41 CFR Subpan 101-9.6). Except as otherwise provided in paragraph C of this section, every building, except a residential structure, shall be designed, constructed, or altered in accordance with the minimum standards contained in the "American National Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by, the Physically Handicapped," Number A117.1 (1971) approved by and available from the American National Standards Institute, Inc., 1430 Broadway, New York, NY 10018. C. The standards established in paragraph (B) of this section shall not apply to: (1) The design, construction, or alteration of any portion ofa bt/Hding or facility which'. need not, because of its intended use, be made accessible to, or usable by, the public or by physically handicapped persons; (2) The alteration of an existing building if the alteration does not involve the installation of, or work on, existing stairs, doors, elevators, toilets, entrances, drinking fountains, floors, telephone locations, curbs, parking areas, or any other facilities susceptible of installations or improvements to accommodate the physically handicapped; (3) The alteration of an existing building or facility, or of such portions thereof, to which application of the standards is not structurally possible. The standards established in paragraph (B) of this section may be modified or waived on a case-by-case basis, provided that the Administrator of the General Services Administration determines that such waiver or modification is clearly necessary. 19. Program Income and Interest Earned on Advances All program income earned during the grant period shall be retained by the Recipient. The income so earned shall be: (1) Added to funds committed to the project by EDA and the Recipient and used to timher eligible program objectives, or (2) Deducted fi'om the total project costs for the purpose of determining the net costs Section I Page 16 t I ! l on which the Federal share of costs will be based. EDA shall be informed by the Recipient when there is income generated by the project up until the time the project is formally closed by EDA. EDA is also to be informed when there is a refund or rebate for the sales taxes paid. , Proceeds from the sale of real and personal property either provided by the Federal Government or purchased in whole or in part with Federal funds shall be handled in accordance with procedures set forth in 13 CFR 3 14. Recipients are required to record the receipt and expenditure of revenues (such as taxes, special assessments, levies, fines, etc.) when such revenues are specifically earmarked for an EDA project. In some States the Recipient may be eligible for rebate of sales taxes paid in obtaining materials and services for construction of the project. Any sales tax refund which the Recipient collects must be deducted from project costs. Liquidated Damages which are assessed against a contractor are to be considered as program income and such income is subject to the controls specified above. However, actual damages or losses suffered by the Recipient may be deducted from this program income to the extent such damages or losses are adequately documented. 20. Reporting of Project Progress Recipients are required to constantly monitor project progress to assure that time schedules are being met, project work units by time periods are being accomplished, and other performance goals are being achieved. This review shall be made for each program, function, or activity as set forth in the approved grant application. The Recipient is required to submit a project performance report for each calendar quarter. The report will cover the following for each program, function, or activity involved: (1) A comparison of actual accomplishments to the timetable established in the Grant Award; (2) Reasons for delays ih those cases where the' time table approved by EDA was not met; (3) Any change to the purpose, intent, location, funding, or cost of the project. (4) All change. orders issued up to the date of the report not previously reported to EDA. (5) Other pertinent information including, when appropriate, an analysis and Section I Page 17 explanation of and cost overruns or high unit costs. The project performance report will be due not later than January 15, April 15, July 15 and October 15 for the immediate previous quarter year. This requirement shall begin with the Recipient's acceptance of the EDA Grant Award and shall end when ,EDA approves' the final grant disbursement. Between the required performance reporting dates, events may occur which have significant impact upon the project or program. In such cases, the Recipient will be required to inform EDA as soon as the following types of conditions become known: (1) Problems, delays, or adverse conditiohs which will materially affect the ability of the Recipient to attain program objectives, prevent the meeting of time schedules and goals, or preclude the attainment of project work by established time periods. This disclosure shall be accomplished by a statement of the action taken, or contemplated, and any Federal assistance needed to resolve the situation. (2) Favorable developments or events which enable meeting time schedules and goals sooner than anticipated or producing more work than originally projected; or (3) If any performance review conducted by the Recipient' discloses the need for .' change in the budget estimates, the Recipient is required to submit a request for ' budget revision. A sample format for the required project performance report is included herein as Exhibit L. The report will be sent to the EDA Regional .Office. The Recipient may use a format other than the EDA sample, provided that the information called for in this section is furnished. EDA does not normally permit grant advances. However, where EDA determines that grant advances are necessary and in the best interest of the Government and the Recipient, the Recipient will be required to submit with the project performance report a Report of Federal Cash Transactions. The EDA Regional Office shall furnish the required forms for this report. G. The EDA Regional Office will not process any requests for grant disbursement from Recipients with delinquent performance reports. 2 1. Environmental Requirements It is the policy of EDA to insure that proper environmental review of its actions take place; that there is a proper balance between the goals of economic development and environmental enhancement in its actions; and, that adverse environmental impacts from its actions are mitigated or avoided to the extent possible. B. Environmental assessments of EDA actions are conducted in accordance with the Section I Page 18 I t National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et. seq.), the Environmental Quality Improvement Act (42 U.S.C. 4371 et. seq.), The Clean Air Act, as amended (42 U.S.C. 7401 et. seq.), the National Historic Preservation Act of 1966 (16 U.S.C. 470 et. seq.), The Wild and Scenic Rivers Act, as amended (16 U.S.C. 1271 et~ seq.), the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4001 et. seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. ,1251 et. seq.), and the Council on Environmental Quality (CEQ) Regulations (40 CFR Section 1500-1508), as specified in EDA Directives 17.02-2, 17.02-7, and 17.04, as hereafter amended or superseded. Directives are available from any EDA office. EDA recipients are subject to Federal, state and local requirements coneeming hazardous substances, including, but not limited to, th~ Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Public Law 96-510 (1980), as amended by Public Law 99-499 (1986), 42 U.S.C. 9601-9675; and the Resource Conservation and Recovery Act (RCRA), Public Law 89-272 (1965), as amended by Public Law 94-580 (1976), Public Law 96-482 (1980) and Public Law 98-616 (1984), 42 U.S.C. 6901 ~6991. 22. Project Revisions After Recipient acceptance of the EDA grant award, any change to the project as described in the grant award must be reviewed and approved by EDA. To be eligible for EDA financial participation the proposed revision must meet certain conditions. See Section V of this document for guidelines on securing EDA approval of proposed project revisions. 1 I t Section I Page 19 Original Contract AGREEMENT FOR ENGINEERING SERVICES CITY OF PEARLAND, TEXAS COUNTY ROAD 48 WATER EXTENSION PROJECT THIS AGREEMENT is by and between the CITY OF PEARLAND, TEXAS (hereinafter called "OWNER ') and MONTGOMERY WATSON AMERICAS, INC.. a corporation organized under the laws of the State of California, (hereinafter called 'MONTGOMERY WATSON"). WITNESSETH: WHEREAS, OWNER desires to obtain engineering services relating to the Project as hereinafter defined, COUNTY ROAD 48 WATER EXTENSION PROJECT (hereinafter called "PROJECT"); and WHEREAS, OWNER desires to employ an engineering firm having broad and extensive experience to be responsible for the overall planning and engineering for the entire PROJECT as more specifically described herein below; and, WHEREAS, OWNER desires to engage MONTGOMERY WATSON for the work and MONTGOMERY WATSON is willing and able to undertake the work upon the terms and conditions hereinafter set forth: NOW THEREFORE, it is mutually agreed as follows: OWNER hereby employs MONTGOMERY WATSON and MONTGOMERY WATSON hereby accepts such employment to perform the services hereinafter defined upon the terms and conditions set forth herein. ARTICLE 1 - GENERAL CONDITIONS 1. OWNER hereby retains MONTGOMERY WATSON on an independent contractor basis. 2. MONTGOMERY WATSON agrees to furnish certain professional engineering services, as hereinafter described in the Detailed Scope of Work, marked as Attachment A, and incorporated herein. 3. The Agreement shall commence upon date of execution and shall terminate 395 calendar days after date of substantial completion of the construction activities associated with the project. Termination may be changed through mutual agreement of OWNER and MONTGOMERY WATSON. 2. OWNER agrees that timely payment, as provided herein, is a material term of this Agreement, and failure to make timely payment as agreed constitutes a breach hereof. In the event payment for services rendered has not been made within 60 days from the receipt of invoice, MONTGOMERY WATSON may, after giving 7 days written notice and without penalty or liability of any nature, and without waiving any claim against OWNER, suspend all work on all authorized services as set forth herein. Upon receipt of payment in full for services rendered, plus interest charges, MONTGOMERY WATSON will continue with all services not inconsistent with Article 7 herein. Payment of all compensation due MONTGOMERY WATSON pursuant to thiss Agreement shall be a condition precedent to the OWNER using any of MONTGOMERY WATSON'S professional services work product furnished under this Agreement. 3. In order to defray carrying charges resulting from delayed payments, simple interest at the rate of 18% per annum (not to exceed the maximum rate allowed by law) shall be added to the unpaid balance of each invoice. The interest period shall commence 60 days after date of original invoice and shall terminate upon date of payment. No interest charge will be added during the initial 60-day period following the date of invoice. Payments shall first be credited to interest and then to principal. 4. It is further agreed that the above payments for engineering services, as described herein, have been arrived at after meaningful negotiations between OWNER and MONTGOMERY WATSON. 5. It is also mutually agreed that the above payment for engineering services. shall be compensation only for those services specifically identified in Article 1, and more fully described in Attachment A. Provisions for additional compensation will be separately negotiated to pay for Additional Services. ARTICLE 4 - OWNER'S RESPONSIBILITIES. 1. OWNER shall designate in writing a person to act as OWNER's representative with respect to the services to be rendered under this Agreement. Such person will have complete authority to transmit instructions, receive information, interpret and define OWNER's policies and decisions with respect to MONTGOMERY WATSON s services. 2. OWNER shall furnish to MONTGOMERY WATSON all nonconfidential technical data in OWNER'S possession which OWNER may lawfully release, including but not limited to, maps surveys, drawings, soils or geotechnical reports, and any other informationrequired by MONTGOMERY WATSON, all of which MONTGOMERY WATSON may use and rely upon in performing services under this Agreement. be responsible for those duties and responsibilities which belong to the construction contractor(s), and which include, but are not limited to, full responsibility for the means, methods, techniques, sequences and progress of construction, and the safety precautions incidental thereto, and for performing the construction in accordance with the Contract Documents. 6. Visits to the construction site and observations made by MONTGOMERY WATSON as part of services during construction under this Agreement shall not make MONTGOMERY WATSON responsible for, nor relieve the construction contractor of the full responsibility for all construction means, methods, techniques, sequences, and procedures necessary for coordinating and completing all portions of the work under the construction contract(s), and for all safety precautions incidental thereto. Such visits by MONTGOMERY WATSON are not to be construed as part of the monitoring duties of the on -site monitoring personnel defined above. 7. MONTGOMERY WATSON shall notify OWNER of planning, design, and construction errors, omissions, and defects as soon as is practical after discovery. ARTICLE 6 - INSURANCE, INDEMNIFICATION, AND COMPLIANCE WITH LAWS 1. MONTGOMERY WATSON will purchase and maintain during the term of Agreement insurance in accordance with the following: (a) MONTGOMERY WATSON will maintain insurance coverage for Workers' Compensation,and Employer's Liability Insurance as well as General Liability and Automobile Liability Insurance and will name Owner as an additional insured on the General Liability and Automobile Liability Insurance policies. (b) MONTGOMERY WATSON asserts that it is skilled in the professional calling necessary to the services and duties proposed to be performed and that it shall perform such services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals of MONTGOMERY WATSON's caliber in the same locality, and to that end MONTGOMERY WATSON agrees to indemnify and hold harmless Owner, its officers, and employees from and against any and all liability, claims, suits, loss, damages, costs, and expenses arising out of or resulting from any negligent acts, errors, or omissions of MONTGOMERY WATSON, its officers, employees, agents, or consultants in the performance of its services and duties hereunder, but not from the negligence or willful misconduct of Owner, its officers, and employees. However in no event shall MONTGOMERY WATSON be liable for any special, indirect, or consequential damages as a result of its performance of the services hereunder. Further, MONTGOMERY WATSON maintains professional liability insurance. Notwithstanding the availability of professional liability insurance, the total aggregate of MONTGOMERY WATSON's liability to all parties related to this Agreement shall not exceed $50,000, or the amount of MONTGOMERY WATSON's fee, whichever is greater. defend, indemnify, and hold MONTGOMERY WATSON, its consultants, agents, and employees harmless from any and all liability arising out of the construction 6. To the extent applicable hereto, MONTGOMERY WATSON shall, in the performance of this Agreement comply with: (a) The Fair Labor Standards Act of 1939 (20 U.S.C. 201-219); The Walsh -Healey Public Contracts Act (41 U.S.C. 35-45); The Contract Work Hours Standards Act - Overtime Compensation (40 U.S.C. 327-330); Laws restraining the Use of Convict Labor; Utilization of Small Business and Small Disadvantaged Business Concerns (Public Law 95-507)• all other federal, state and local laws and all regulations and order's issued under any applicable law. (b) The Equal Employment Opportunity clause in Section 202 of Executive Order (E O.) 11246, as amended, and the implementing rules and regulations (41 CFR Part 60) are incorporated herein by reference, unless this order is exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of E O. 11246 or provisions of any superseding E O. As used in this clause, "Contractor" means Seller. Unless this order is exempted, the applicable Equal Employment Opportunity Compliance Certificate previously submitted by Seller to Buyer is by reference also incorporated herein. (c) The Affirmative Action for Handicapped Workers Clause in Title 41, Code of Federal Regulations, Part 60, Subsection 741.4 and the implementing rules and regulations of the Department of Labor associated therewith are incorporated herein by reference unless this order is under $2,500. As used in said clause, "Contractor" means Seller. (d) The Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era Clause of Title 41, Code of Federal Regulations, Part 60, Subsection 250.4 and the implementing rules and regulations of the Department of Labor associated therewith are incorporated herein by reference, unless this order is under $10,000. As used in said clause, "Contractor" means Seller, and "Contract" means this order. ARTICLE 7 - SUSPENSION OR TERMINATION 1. OWNER may, at any time and without cause, suspend the services of MONTGOMERY WATSON, or any portion thereof for a period of not more than 90 days by notice in writing to MONTGOMERY WATSON. MONTGOMERY WATSON shall resume the services on receipt from OWNER of a written notice of resumption of services. MONTGOMERY WATSON may be allowed an increase in fee or an extension of time, or both, if MONTGOMERY WATSON makes an approved claim therefor, as provided in paragraph 2 below. In the event that the period of suspension exceeds 90 days, the terms of this Agreement are subject to renegotiation. MONTGOMERY WATSON MONTGOMERY WATSON 5100 Westheimer, Suite 580 Houston, Texas 77056 Attn: Mr. David D. Agee, P E 3. MONTGOMERY WATSON's books, papers, records, and accounts, as well as those of any structural, mechanical, and electrical subcontractors, or any other consultant retained by MONTGOMERY WATSON, relating to or in any way connected with the professional services herein contemplated, shall be open, at all reasonable times, for inspection and audit by the agents and authorized representatives of OWNER The original books, papers, records, and other documents described herein shall be retained for a minimum of 3 years after completion of services. 4. This Agreement is to be binding on the heirs, successors, and assigns of the parties hereto, but is not to be assigned without first obtaining the written consent of the other; consent not to be unreasonably withheld. 5. OWNER reserves the right, with cause, which shall be communicated in writing, to request replacement of any onsite monitoring personnel furnished by MONTGOMERY WATSON as a part of any services during construction, as provided under Article 1. 6. This represents the entire understanding of OWNER and MONTGOMERY WATSON as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by amendment in writing signed by each party 7. MONTGOMERY WATSON'S waiver of any term, condition, or covenant, or breach of any term, condition or covenant, shall not constitute the waiver of any other term, condition, or covenant, or the breach of any term, condition or covenant. 8. If any term, condition, or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be valid and binding on each party 9. MONTGOMERY WATSON will retain all files and work products prepared pursuant to this agreement in an active file for a period of at least five years Attachment A DETAILED SCOPE OF WORK CITY OF PEARLAND, TEXAS COUNTY ROAD 48 WATER EXTENSION PROJECT BACKGROUND. The City of Pearland is proposing a new 24-inch water transmission line for supply to new developments along between Beltway 8 and County Road 92 west of State Highway 288. This scope of work is for Montgomery Watson to provide engineering services for preliminary engineering, detailed design, bid phase, and office support during construction for the proposed 24-inch water transmission line. The proposed transmission line project has several components: • Connection to existing 12 or 16-inch City of Houston water transmission line in the vicinity of Fellows Road and Almeda School Road • Ground storage tank and fill line • Booster pump station • 24-inch transmission line from booster pump station along the east side of Almeda School Road (County Road 48), across Beltway 8, and across Clear Creek to the south right-of-way of Clear Creek • 16-inch transmission line from proposed Kirby Drive east along County Road 92 and FM 518 to point of connection with 16-inch existing City of Pearland waterline along east right-of-way of Cullen Road and south side of FM 518. BASIC SERVICES Task 1 - Preliminary Engineering Services Montgomery Watson shall prepare a Preliminary Engineering Report including the following. 1. Using information provided by the City of Pearland and the City of Houston on projected demands, available flow and pressure, perform calculations to verify the size of proposed water lines to meet the needs of proposed developments. Develop sizing of volume of ground storage tank (in accordance with TNRCC criteria) and booster pump station capacity. 2. Prepare preliminary drawings and figures showing the proposed pipeline routing and tie-in points with existing water supply pipelines. The criteria for the design of the pipeline will be developed including special details and appurtenances. Revision: October 26, 1998 Page 1 8. Collect design standards, material preferences, standard specifications, and standard details that are required by the City of Pearland, the City of Houston, Harris County, Harris County Flood Control District, Brazoria County, TXDOT, industries, and utilities for use in preparing the contract documents. 9. Prepare a draft report summarizing the findings and recommendations of Subtasks 1 through 7 above. A budget level cost estimate will be included in the report. A proposed schedule for detailed design, right-of-way acquisition, and construction will be included in the report. Ten copies of the draft report will be produced and distributed for review. Montgomery Watson will make a formal presentation of the draft report to the City of Pearland. 10. Prepare a final report based on the review comments received from the City of Pearland, the City of Houston and other agencies and utilities. Twenty-five copies of the final report will be submitted. 11. Provide coordination and communication with the City of Pearland. Montgomery Watson will provide the City with updates of progress, issues, schedule and budget on a monthly basis. Montgomery Watson will attend monthly meetings with the City of Pearland. In addition, Montgomery Watson will attend up to two City of Pearland council meetings to discuss the project. 12. Montgomery Watson will contract directly with all subconsultants. Montgomery Watson will prepare all subconsultant contracts, budgets, and schedules. 13. Provide quality assurance and quality control for the preliminary engineering services. 14. Provide supporting information to the City of Pearland for the Economic Development Agency grant. Task 2 - Detailed Design Services This task is for the detailed design preparation of contract documents, bid phase services, and pre -award services for the project defined in the Preliminary Engineering Report. 1. Prepare detailed engineering calculations of pipelines, storage tank, metering station, booster pump station. The design shall be based on the recommendations of the Preliminary Engineering Report. 2. Prepare detailed drawings, specifications and contract documents for the project. The documents shall be prepared for two construction contracts, and for selection of construction contractors on a competitive -bid basis. 3. Drawings will be prepared on 22-inch by 34-inch sheets with standard Montgomery Watson title blocks. Plan and profile sheets will be a scale of 1-inch = 40 ft. Revision: October 26, 1998 Page 3 13. Montgomery Watson will contract directly with all subconsultants. Montgomery Watson will prepare all subconsultant contracts, budgets, and schedules. 14. Provide quality assurance and quality control, review and checking of the contract documents. 15. Provide supporting information to the City of Pearland for the Economic Development Agency grant. Task 3 - Bid Phase Services Montgomery Watson will provide the following services associated with the advertisement of the project for construction bids and award of the project for construction. This scope is based on two construction contracts. Specific services to be performed by Montgomery Watson for each contract are as follows. 1. Coordinate bid opening date, time, and place with City of Pearland, and prepare final Invitation to Bid. 2. Assist and advise City of Pearland in placing the advertisements of the Invitation to Bid. City of Pearland will place and pay for advertisements. 3. Identify potential contractors and suppliers, and distribute copies of the Invitation to Bid. 4. Provide 50 sets of contract documents (half-size) for bidding purposes. Distribute the contract documents to prospective bidders, suppliers, plan rooms, and agencies for bidding purposes. Maintain a record of prospective bidders and suppliers (plan holders) to whom contract documents have been issued. 5. Distribute plan holders' list to recipients of contract documents prior to bid opening. 6. Conduct a pre -bid conference during the advertisement period. • Instruct prospective bidders and suppliers as to the types of information required by the contract documents and the format in which bids should be presented. • Review special project requirements and contract documents in general. • Receive requests for interpretations or clarifications which will be issued by addendum. • Prepare minutes of the conference and issue by addendum. Revision: October 26, 1998 Page 5 communication, procedures for transmittal and review of the Contractor's submittals, processing payment applications, critical work sequencing, change orders, record documents, and the Contractor's responsibilities for safety and first aid. 3. Review and comment on the Contractor's initial and monthly updated construction schedule and advise City of Pearland as to acceptability. One review per calendar month is included. 4. Review the Contractor's initial and updated schedule of estimated monthly payments (estimated cash flow) and advise City of Pearland as to acceptability. 5. Make periodic visits to the construction site to observe progress of the work, and consult with City of Pearland and the Contractor concerning problems and/or progress of the work. Montgomery Watson will prepare a written report after each visit. Two visits per calendar month are included. 6. Review drawings and other data submitted by the Contractor as required by the construction contract documents. Montgomery Watson's review shall be for general conformity to the construction contract documents and shall not relieve the Contractor of any of his contractual responsibilities. Such reviews shall not extend to means, methods, techniques, sequences, or procedures of construction, or to safety precautions and programs incident thereto. 7. Receive and review guarantees, bonds, and certificates of inspection, and tests and approvals which are to be assembled by the Contractor in accordance with the construction contract documents, and transmit them to City of Pearland. 8. Interpret construction contract documents when requested by City of Pearland or the Contractor. Prepare and issue clarifications when required. Review and process the Contractor's monthly payment requests and forward to City of Pearland as appropriate. Montgomery Watson s review shall be for the purpose of making a full independent mathematical check of the Contractor's payment request. Montgomery Watson shall be responsible for verifying the quantities of work which are the basis of the payment requests. 10. Provide documentation and administer the processing of change orders, including applications for extension of construction time Evaluate the cost and scheduling aspects of all change orders and, where necessary, negotiate with the Contractor to obtain a fair price for the work. Said negotiation shall be subject to the approval of City of Pearland. 11. Work related to unusually complex or unusually numerous claims or requests for clarifications shall be considered Supplemental Services. Revision: October 26, 1998 Page 7 4. Montgomery Watson shall obtain the services of a subconsultant to prepare a report of recommendations for cathodic protection systems for the water transmission main. The recommendations will be incorporated into the design of the transmission main. 5. Montgomery Watson shall obtain the services of a subconsultant to perform additional environmental assessments of the proposed alignment to include: • Wetlands determination • Endangered species assessment • Antiquities assessment SUPPLEMENTAL SERVICES Supplemental Services are those services which are not included in the Basic or Special Services, but may be needed at some time during the completion of the project. These Supplemental Services will be authorized on an as -required basis by a separate notice to proceed from the City of Pearland. 1. Travel outside of Houston/Pearland area. 2. Reproduction of additional reports or contract documents not specifically identified as a Basic Service. 3. Preliminary design of more than one alignment alternative. 4. Detailed design of more than two alternative pipe materials. 5. Computer modeling of distribution system. 6. Water quality and water blending studies beyond the work described in Task 1, Item 3. 7. Preparation of a wetlands mitigation plan. 8. Phase II environmental assessment. 9. On -site daily monitoring of construction activities. 10. Contracting and coordination of construction testing laboratory. 11. Services required for acquisition of land, easements, and right-of-way. 12. Any work not identified as Basic or Special Services above. Revision: October 26, 1998 Page 9 • cc 0 U i 8 R ^_ ■ ■ Ilia■■■■ • •■mit■ 1 ■■. . II Inn i r■.■ ■. _■■.11■ D n o■ ■ ■■■■� 1._ ■■■_■r ■■■■ ■ ■■ ■ ■■ ■■■..■■ ■■■.11■ I I a a Q 8 F J 4 k 11 F A i. ': 4- S• 1' ii Ell.. ■TIE; 11 I .■ ■■ ■ ■■■ ■ . II um Aim _. ■■■■ ' ■■_r _■■ ■. 1 lop ■_■■C till C ■■: ■ .a 1 II. ^■■ R..11C■.. ■■_■. _ _ eininiik.___a1 1 .. ...■■■Fri.■■.2■■ MIN 1■ ■■IN 1.1 ■CN■ ■ ■ M■■■■ ■ ' i I . • •8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8• 8 8 8 8 8 8■ 8 8 A g g 6 a "a 8 S 1 p a l "[ 1 a 1 $ � S S a ! a 1 a 8 S i a i i + a a t% S i, { [Preliminary EnRD Rpt I 1 r O. F,g a - 3 1 S 's 9 b a 6 $ I il i 1 ! g* 9 3 n Task 1 Task 2 Task 3 Task 4 Total Attachment B SCHEDULE OF FEES FOR BASIC SERVICES CITY OF PEARLAND, TEXAS COUNTY ROAD 48 WATER EXTENSION PROJECT - Preliminary Engineering Services - Detailed Design Services - Bid Phase Services - Construction Phase Services Note: All amounts are lump sum. $ 55,000 $ 210,000 $ 28,000 $ 62,000 $ 355,000 • October 26, I998 Page 1 AMENDMENT NO. 1 This Agreement, Amendment No. 1, by and between the CITY OF PEARLAND, TEXAS (hereinafter called "OWNER) and MONTGOMERY WATSON AMERICAS, INC., (hereinafter called "MONTGOMERY WATSON') is the first amendment to that certain Agreement executed by the OWNER and MONTGOMERY WATSTON on November 10, 1998. Only the terms which are amended by mutual agreement are set forth herin. WITNESSETH: NOW THEREFORE, it is mutually agreed that the Agreement approved by the OWNER and MONTGOMERY WATSON on November 10, 1998, is hereby modified by the addition of the following: ARTICLE 1 - GENERAL CONDITIONS (no amendment) ARTICLE 2 — COMPENSATION Delete Paragraph 2 and replace with the following: • 2. OWNER will pay to MONTGOMERY WATSON as full compensation for the Special Services described in Attachment A Detailed Scope of Work, a lump sum fee of $183,500. The fee for services will be based on the Schedule of Fees for Special Services, marked as Attachment C, and incorporated herin. ARTICLE 3 — PAYMENT (no amendment) ARTICLE 4 - OWNER'S RESPONSIBILITIES (no amendment) ARTICLE 5 - MONTGOMERY WATSON'S RESPONSIBILITIES Add the following: 8. MONTGOMERY WATSON shall comply with the applicable provisions of Section I, Item 6, of the Requirements for Approved Projects, ninth edition, as published by the U.S. Department of Commerce, a copy of which is attached as Attachment D. However, MONTGOMERY WATSON will not redesign the project per the conditions of Section I, Item, 6, G, (2).