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HomeMy WebLinkAboutPR 21561: PRELIMINARY DRAINAGE ENGINEERING CONTRACT WITH ARCENEAUX WILSON AND COLE LLC IL a City of ii, ort rthu�r `~ Texas www.PortArthurTx.gov INTEROFFICE MEMORANDUM Date: September 7, 2020 To: The Honorable Mayor and City Council Through: Ron Burton, City Manager From: Alberto Elefano, P.E., Director of Public Works RE: P.R. 21561 —Preliminary Drainage Engineering Contract with Arceneaux Wilson and Cole(AWC) for a 4,953-acre area of Port Arthur including downtown. This is to apply for a CDBG-MIT Funded Project. City Funds will be reimbursed when this project is selected. Introduction: The intent of this agenda is for City council to authorize the City Manager to enter into a Drainage Engineering and Design Contract for a 4,953-acre area of Port Arthur including downtown. This is a CDBG-MIT (Community Development Block Grant Mitigation) funded project. The design fee of not to exceed $150,000.00 will be reimbursed when this project is selected. Background: The City of Port Arthur will apply for CDBG-MIT fund appropriated project for a 4,953-acre area which includes P.A. Downtown. This application is due October 28, 2020. The City requested for qualifications for drainage services and AWC was selected as the most qualified to perform the services needed to apply for the CDBG-MIT funding. The State of Texas was allocated almost $4.3 billion to strategically reduce future losses from natural disasters. The 4,953-acre area which includes downtown is selected as the top project because this area's design is outdated with a 2-year storm design and much of the storm pipes in this area is made of clay. Current standards are to design for 25-year storm which will drastically improve the drainage coming to the Drainage District 7 (DD7) pump stations. "Remember,we are here to serve the Citizens of Port Arthur" 444 4th Street X Port Arthur,Texas 77641-1089 X 409.983.8182 X FAX 409.983.8294 Collaboration with other local entities is an essential part of CDBG-MIT action plan. DD 7 is collaborating with the City to improve the drainage pump stations in the 4,953-acre area to accommodate the improvements. The improvements in this area will revitalize downtown and mitigate the flooding experienced here during Hurricane Harvey. Budget Impact: Funding is reimbursable when this project is selected through the CDBG-MIT program. Funding is available in Account No. 148-2300-901.53-00 for the $150,000.00 preliminary drainage design fee. Recommendation: City Council to approve P. R. 21561 authorizing the City Manager to enter into a professional services agreement with Arceneaux Wilson and Cole (AWC) of Port Arthur, Texas for the preliminary drainage engineering for the 4,953-acre area which includes P.A. Downtown. "Remember,we are here to serve the Citizens of Port Arthur" P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8101 X FAX 409.982.6743 P.R. 21561 09/7/2020 ace RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT BETWEEN THE CITY OF PORT ARTHUR AND ARCENEAUX WILSON AND COLE OF PORT ARTHUR, TEXAS FOR THE 4,953-ACRE AREA WHICH INCLUDES PORT ARTHUR DOWNTOWN. THE DRAINAGE DESIGN FEE OF NOT TO EXCEED $150,000.00 IS REIMBURSABLE WHEN THIS PROJECT IS SELECTED AS A CDBG-MIT (COMMUNITY DEVELOPMENT BLOCK GRANT MITIGATION) FUNDED PROJECT. ACCOUNT NO. 148- 2300-901.53-00 WHEREAS, the State of Texas was allocated almost $4.3 billion to strategically reduce future losses from natural disasters. The City of Port Arthur will apply for CDBG- MIT fund appropriated project for a 4,953-acre area which includes Port Arthur Downtown. This application is due October 28, 2020; and, WHEREAS, pursuant to 252.021 & 252.042 of the TLGC, the City advertised a notice for Request for Qualifications (RFQ) for Drainage Engineering services to develop a Master Drainage Plan for the City and to be on-call for any drainage need the city might need. This RFQ was advertised on June 12, 2020 and June 19, 2020; and, WHEREAS, the RFQ's were evaluated and scored (see Exhibit A). Arceneaux Wilson and Cole (AWC) of Port Arthur, Texas scored the highest to perform drainage engineering services for the City; and, WHEREAS, pursuant to state law, the City Manager has negotiated a contract price and it is recommended that the City Council approve a contract with Arceneaux Wilson and Cole (AWC) for Preliminary Drainage Engineering Services for the 4,953-acre area of Port Arthur for a design fee of not to exceed $150,000.00 as attached Exhibit"A"; now therefore, P. R. 21561 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: THAT, the facts and opinions in the preamble are true and correct; and, THAT, the Mayor and City Manager are authorized to enter into an agreement with Arceneaux Wilson and Cole (AWC) of Port Arthur, Texas in substantially the same form attached hereto as Exhibit "B," for the Preliminary Drainage Design for the 4,953- acre area of Port Arthur for a design fee not to exceed $150,000.00 which will be refundable when this project is selected, funding being available in the Account No. 148- 2300-901.53-00. THAT, a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED this the day of , A.D. 2020 at a meeting of the City of Port Arthur, Texas by the following vote: Ayes: Mayor: Council members: Noes: P.R. 21561 Thurman "Bill" Bartie Mayor ATTEST: Sherri Bellard City Secretary A''ROVED AS TO FORM: APPROVED FOR ADMINISTRATION: 4(7 l -47 ° 1-- Valecia Ti.e o Ron Burton City Attorney City Manager APPROVED AS FOR AVAILABILITY OF FUNDS: . Kandy Daniel .y Interim Director of Finance ��.f,R✓� c. Alberto Elefano,Elefano, P.E. Director of Public Works L41 � � j Clifton Williams, CPPB Purchasing Manager P. R. 21561 EXHIBIT A WI \ \ q ■ 2 ( k \ . NM \ \ E - oc - �1 \ �� 2 / ƒ� . 7 � _ ) 00. �§ i 4I@■ 2 e = 5e _ w 2 L _ s. k $ c = k 2 ® 2 E cr � 2 E 22 2 k / / \ \ 22 t CI et t 4 ® � J5 § _ Z § 2 22 0 ) � 2 L?. I— < 4.. \ 1- / � § G - \ < / \ 2 } rx e \ .... k j K ƒ - � % § ; }/ k = d 2 § § ` c. \ \ c 00 \ _ e o \ / \ \ M & § k \ \ ] - E .§ ® % +. 3 = ) 74 ; E o _ - » 2 2 / ® N '0 .c k / I C i ) f / 2 �: � # / i \ 22j / 3o ■ [ @eoo � / - \ � \ f jk 3 - / ) , k 72 � x ° j / z 2 ) 5 MI & \ C \ 2 •CE. L C. ti en N ^r7 . 0C N S C C if 1 _ \,rip F le. � � � ^ x W0 l F Ili \' . Y :: • > or v. © .• t. =c Q a W i V ci: 4 oA C rn • Vl L ... 00 en N •--• u p V C.) U O o L .Z. OJ 0A '4L' OA L L L Cl R Q O O N 7 b C C G. E N • R s0. .0 ge C y A a cn o L L O J, 7O 0. O NN •-- ; E. 0. C So I. 0") U " c °4 y ` 00 `Th N > ac u, C m L Q U;i) eA = H 01) el• c4 1.1 'O E 7,6 .E c, in o ^ o c vXy .0 7 * C '0 Q ai c :0 000 ti, C V N N Y 4 V 0 , . \ L V 0. � G V C0Q ' Q y L 0 av 0..• y C. 0' 6. 'C Cd170' c N U ti .5... y C V 'O AC. c3 ea = O b 774 Q anyy O C. 4-. D ¢ N U 4-, O V t l v — 0 t) puo s a.' Cu a \ URV • "J LV ECC O J L 0 L c • L- Vy _ O \ FV V V 0 " ACC 1--" y aOV 4., 0 C .dp * TC 0 Cd x ; •L = a 0 gq E '- is x , o — co E w 0. c.) 3 to-5.. 3 F LL 0 * U 3 CO G. cC v) 6 6. = >- N Exhibit B TABLE OF CONTENTS Part 1 Agreement 2 1.Employment of Engineer 2 2.Scope of Services 2 2.1 Basic Services 3 2.2 Additional Services 3 3.Time of Performance 4 4.Information and Services to be Furnished for the Engineer 4 5.Compensation and Method of Payment 5 6.Records 5 7.Ownership of Documents 5 8.Insurance 5 9.Professional Liability 7 10.1ndemnification 8 11.Address of Notice and Communications 8 12.Captions 8 13.Successors and Assignments 9 14.Termination of Contract for Cause 9 15.Termination for Convenience of the City 9 16.Changes 9 17.Personnel 9 18.Report and Information 10 19.Civil Rights 10 20.Interest of Engineer and Employees 10 21.State and Federal Contract Clauses Included as part of the Contract 10 22.Community Development Block Grant- Disaster Recovery 26 23.Incorporation of Provisions Required by Law 27 Attachment 1 - Design Schedule Attachment 2 - Design Fee Schedule Page 1 THE STATE OF TEXAS § COUNTY OF JEFFERSON § CONTRACT FOR PROFESSIONAL SERVICES FOR 4,953-ACRE AREA OF PORT ARTHUR INCLUDING DOWNTOWN PART 1 - AGREEMENT THIS AGREEMENT,entered into as of this _day of September 2020,by and between the City of Port Arthur, Port Arthur, Texas (hereinafter called the"CITY") acting herein by its Mayor and City Manager,duly authorized by Resolution of the City Council of the City of Port Arthur and Arceneaux Wilson & Cole LLC_(hereinafter called the "ENGINEER") acting herein by Joe M. Wilson, Jr., PE hereunto duly authorized: WITNESSETH THAT: WHEREAS, the CITY desires to engage the Engineer to (1) render certain technical and professional services hereafter described in"Scope of Services"or(2)perform certain work hereafter described in "Scope of Services": NOW, THEREFORE, the Parties hereto do mutually agree as follows: 1. EMPLOYMENT OF ENGINEER The CITY hereby agrees to engage the ENGINEER and the ENGINEER hereby agrees to perform the"Scope of Services"hereinafter set forth. f his contract shall be performed in Jefferson County, Texas. 2. SCOPE OF SERVICES 2.1 BASIC SERVICES (4,953-ACRE AREA OF PORT ARTHUR INCLUDING DOWNTOWN) ENGINEER'S compensation for Basic Services shall be as set forth in Paragraph 5. The services rendered by the ENGINEER for the Project is to provide services for the preliminary engineering/schematic design phase for drainage improvements related to the proposed grant application. Certain elements of the engineering work are covered under the Basic Services; others are Performed as Additional Services. Those elements of the engineering work which cannot be accurately predetermined or controlled entirely by the ENGINEER are performed as Additional Services. No other payments will be required by the City if Additional Services are requested. Page 2 The current drainage system in the 4,953-acre area which includes downtown is outdated with a 2- year storm design and much of the storm pipes in this area is made of clay. To mitigate the damages caused by the increasing rainstorms that keeps occurring in Port Arthur,the city will apply through CDBG-MIT (Community Development Block Grant Mitigation) program to upgrade the storm system in the 4,953-acre area of Port Arthur. 2.1.1 PRELIMINARY ENGINEERING 1. Conduct an initial "kick off' meeting with the appropriate City staff to obtain existing information such as pertinent studies, "as-built" plans, GIS information, geotechnical investigations, and other information available for the project. 2. Conduct site investigations as needed with City Staff. 3. Research existing rights-of-way and adjacent properties to determine what acquisitions may be necessary for proposed improvements. 4. Provide preliminary drainage analyses utilizing record information and collected field data. Develop preliminary hydraulic improvements program necessary to ensure the drainage systems are in compliance with 25-year frequency rainfall criteria established by the City and Jefferson County Drainage District 7. 5. Provide exhibits as needed to depict Right-of-Way acquisitions required for constructing upgraded drainage system. 6. Prepare schematic layouts showing drainage areas, surface contours, underground storm sewers, outfall channels and other pertinent drainage system appurtenances. 7. Prepare schematic layouts showing the recommended improvement program for drainage system. 8. Provide Opinion of Probable Construction Cost of roadway repairs or replacements,drainage system improvements and utility adjustments associated with the construction of the recommended drainage system. 9. Prepare project schedule(s) as needed to maintain the design and construction period(s)for implementing the recommended programs are in compliance with the grant program. 10.Prepare information,exhibits,descriptions,etc.required for public comment on the project. 2.2 ADDITIONAL SERVICES All work performed by ENGINEER at request of CITY which is not included in the Basic Services defined above, shall constitute Additional Services. No other payments will be made for Page 3 Additional Services listed herein. Unless included in said Basic Services,Additional Services may include but are not limited to the following: (1) Establishment of boundaries and monuments, and related office computation and drafting. (2) Appearances before regulatory agencies. (3) Assistance to the CITY as an expert witness in any litigation with third parties, arising from the development or construction of the Project,including preparation of engineering data and reports. (4) Special investigations involving detailed consideration of operation,maintenance and overhead expenses;preparation of rate schedules; earnings and expense statements; special feasibility studies;appraisals;evaluations;and material audits or inventories required for certification of force account construction performed by the CITY. (5) Travel and subsistence required of the ENGINEER and authorized by the CITY to points other than CITY'S or ENGINEER'S offices and Project site. (6) Preparation of applications and supporting documents for government grants or planning advances for public works projects. (7) Preparation of environmental statements and assistance to CITY in preparing for,and attending public hearings. (8) Services to investigate existing conditions or facilities or to make measured drawings thereof,or to verify accuracy of drawings or other information furnished by Client. (9) Providing any other service not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted engineering practice. (10) Any other special or miscellaneous assignments specifically authorized by CITY. ENGINEER'S compensation for Additional Services is included in the design fees. No other payments will be required by the City. 3. TIME OF PERFORMANCE ENGINEER will proceed immediately upon execution of this Contract with performance of the services called for under the"Scope of Services"with completion within October 23,2020 after execution, unless delayed by causes outside the control of ENGINEER, and will proceed with subsequent work only on authorization by the CITY and in accordance with the following Design Schedule. ENGINEER shall immediately submit to CITY in writing evidence of delay satisfactory to the City Engineer's reasonable discretion,upon which an extension of time equal to the period of actual delay shall be granted in writing. The Design Schedule is included as Attachment 1. 4. INFORMATION AND SERVICES TO BE FURNISHED FOR THE ENGINEER It is agreed that the CITY will furnish, without charge, for the use of the Contract information,data,reports,records,and maps as are existing,available,and necessary for the carrying out of the work of the ENGINEER as outlined under "Scope of Services." The CITY and its agencies will cooperate with the ENGINEER in every way possible to facilitate the performance of the work described in this Contract. Page 4 5. COMPENSATION AND METHOD OF PAYMENT A. COMPENSATION City will pay ENGINEER for work performed and services rendered under Paragraph 2 "Scope of Services", (Basic Services and Additional Services) in accordance with the following Design Fee Schedule. The Design Fee Schedule is included as Attachment 2. It is agreed that total fees for Basic Services(including subcontracted engineering services as described herein) under this Contract, as defined in Paragraph 2A and based on the preceding schedule, shall not exceed the sum of$150,000.00 B. PAYMENT ENGINEER will invoice CITY monthly for its services and charges incurred by ENGINEER for subcontracted engineering services performed under the direction and control of ENGINEER as described herein. CITY agrees to pay ENGINEER at his office the full amount of each such invoice upon receipt or as otherwise specified in this Agreement. A charge of one percent per month shall be added to the unpaid balance of invoices not paid within 31 days after date of invoice. The engineer shall pay any subcontractors no later than the tenth day after he receives payment as required under Chapter 2251 Government Code of the Revised Civil Statutes of Texas. 6. RECORDS ENGINEER shall keep accurate records, including time sheets and travel vouchers, of all time and expenses allocated to performance of Contract work. Such records shall be kept in the office of the ENGINEER for a period of not less than five(5)years and shall be made available to the CITY for inspection and copying upon reasonable request. 7. OWNERSHIP OF DOCUMENTS All documents,including original drawings,estimates,specifications,field notes and data are property of CITY. ENGINEER may retain reproducible copies of drawings and other documents. All documents, including drawings and specifications prepared by ENGINEER are instruments of service in respect to the project. They are not intended or represented to be suitable for reuse by CITY or others on extensions of the Project or on any other project. Any reuse without written verification or adaption by ENGINEER for the specific purpose intended will be at CITY'S sole risk and without liability or legal exposure to ENGINEER and CITY shall indemnify and hold harmless ENGINEER from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any such verification or adaption will entitle ENGINEER to further compensation at rates to be agreed upon by CITY and ENGINEER. 8. INSURANCE All insurance must be written by an insurer licensed to conduct business in the State of Texas, unless otherwise permitted by Owner. The ENGINEER shall, at his own expense, purchase, maintain and keep in force insurance that will protect against injury and/or damages which may arise Page 5 out of or result from operations under this contract,whether the operations be by himself or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable,of the following types and limits(no insurance policy or certificate of insurance required below shall contain any aggregate policy year limit unless a specific dollar amount(or specific formula for determining a specific dollar amount)aggregate policy year limit is expressly provided in the specification below which covers the particular insurance policy or certificate of insurance): 1. Standard Worker's Compensation Insurance(with Waiver of Subrogation in favor of the City of Port Arthur, its officers, agents and employees.) 2. Commercial General Liability occurrence type insurance. (No "XCU" restrictions shall be applicable.) Products/completed operations coverage must be included,and the City of Port Arthur, its officers, agents and employees must be named as an additional Insured. a. Bodily injury$500,000 single limit per occurrence or$500,000 each person/$500,000 per occurrence. b. Property Damage $100,000 per occurrence. c. Minimum aggregate policy year limit$1,000,000. 3. Commercial Automobile Liability Insurance(including owned,non-owned and hired vehicles coverages). a. Minimum combined single limit of $500.000 per occurrence for bodily injury and property damage. b. If individual limits are provided minimum limits are$300,000 per person,$500,000 per occurrence for bodily injury and $100,000 per occurrence for property damage. 4. Contractual Liability Insurance covering the indemnity provision of this contract in the same amount and coverage as provided for Commercial General Liability Policy,specifically referring to this Contract by date,job number and location. 5. ENGINEER also agrees to maintain Professional Liability Insurance coverage of 0 $1,000,000 minimum per occurrence/claim/policy year aggregate limits against ENGINEER for damages arising in the course of, or as a result of, work performed under this Contract. Coverage shall continue for a minimum of two (2) years after the ENGINEER'S assignment under this Contract is completed. Additional Professional Liability Insurance required is $0 ENGINEER shall cause ENGINEER'S insurance company or insurance agent to fill in all information required (including names of insurance agencies, ENGINEER and insurance companies, and policy numbers,effective dates and expiration dates)and to date and sign and do all other things necessary to complete and make into a valid certificate of insurance the CERTIFICATE OF INSURANCE Form attached to and made a part of this Contract, and pertaining to the above listed Items 1,2,3,4, and 5; and before commencing any of the work and within the time otherwise specified, ENGINEER shall file said completed Form with the CITY. None of the provisions in said Form shall be altered or modified in any respect except as herein Page 6 expressly authorized. Said CERTIFICATE OF INSURANCE Form contains a provision that coverages afforded under the policies will not be altered, modified or cancelled unless at least fifteen(15)days prior written notice has been given to the CITY. ENGINEER shall also file with the CITY valid CERTIFICATE(s)OF INSURANCE on like form from or for all Subcontractors and showing the Subcontractor(s) as the Insured. Said completed CERTIFICATE OF INSURANCE Form(s) shall in any event be filed with CITY not more than ten (10) days after execution of this Contract. Deductible on policy for Professional Liability shall not exceed$25,000 unless specifically approved by the Owner. 9. PROFESSIONAL LIABILITY A. ENGINEER shall be responsible for the use and employment of reasonable skill and care befitting the profession in the designs,drawings,plans,specifications,data,reports and designation of materials and equipment provided by ENGINEER for the Project covered by this Contract. Approval by CITY shall not constitute nor be deemed a release or waiver of the responsibility and liability of ENGINEER for the accuracy and competency of such designs, drawings, plans, specifications, data, reports and designation of materials and equipment. Contractor will be responsible for the actual supervision of Construction operations and safety measures involving the work, his employees and the public, but the ENGINEER will advise the Contractor of any items requiring the attention and action of the Contractor. B. If services include periodic visits to the site to inspect work performed by another Contractor, ENGINEER is responsible for exercising reasonable care and skills befitting the profession to assure that the Contractor performs the work in accordance with Contract Documents and to safeguard the CITY against defects and deficiencies in the work; provided, however, ENGINEER does not guarantee or insure the work completed by the Contractor. During visits to the construction site,and on the basis of the ENGINEER'S on-site observations as an experienced and qualified design professional, he will keep the CITY informed on the extent of the progress of the work,and advise the CITY of material and substantial defects and deficiencies in the work of material and substantial defects and deficiencies in the work of Contractors which are discovered by the ENGINEER or otherwise brought to the ENGINEER'S attention in the course of construction,and may,on behalf of the CITY exercise whatever rights the CITY may have to disapproved work and materials as failing to conform to the Contract Documents. C. In connection with the services of Resident Project Representatives,ENGINEER will use the usual degree of care and prudent judgement in the selection of competent Project Representatives, and the ENGINEER will use its best efforts to see that the Project Representatives are on the job to perform their required duties. In performing these duties and services (described in this sub- paragraph), ENGINEER is responsible for exercising reasonable care and skill befitting the profession the assure that the Contractor performs the work in accordance with Contract Documents and to safeguard the City against defects and deficiencies in the work; provided, however, ENGINEER does not guarantee or insure the work completed by the Contractor. Page 7 D. In performing these services,the ENGINEER will at all times endeavor to protect the CITY on the Project and work sites and safeguard the CITY against defects and deficiencies in the work of the Contractor;provided,however,ENGINEER does not guarantee or insure the work completed by the Contractor,nor is ENGINEER responsible for the actual supervision of construction operations or for the safety measures that the Contractor takes or should take. E. ENGINEER shall not be responsible for any excess of construction costs over an amount estimated. 10. INDEMNIFICATION ENGINEER shall comply with the requirements of all applicable laws,rules,and regulations in connection with the services of ENGINEER and shall indemnify and hold harmless the CITY,its officers, agents and all employees from any and all liability, loss or damage arising out of noncompliance with such laws,rules and regulations;without limitation,ENGINEER shall assume full responsibility for payments of Federal, State and Local taxes or contributions imposed or required under the Social Security,Worker's Compensation,and Income Tax Laws with respect to ENGINEER'S employees. Further, ENGINEER shall indemnify and hold harmless the CITY, its officers, agents and all employees from any and all liability, loss, damages, or expenses due to the negligence of ENGINEER, its officers, agents and employees in connection with any of the work performed or to be performed under this Contract by ENGINEER or as a result of ENGINEER'S failure to use and employ reasonable skill and care befitting the profession in accordance with paragraph 9 hereof. Further, ENGINEER shall indemnify and hold harmless the CITY,its officers, agents,and all employees from any and all liability,loss,damages,expenses caused by infringement of any copyright or patents arising out of the use of any plans, design, drawings, or specifications furnished by ENGINEER in the performance of this Contract. The foregoing indemnification provision shall apply to ENGINEER regardless of whether or not said liability, loss, damages, expenses, or claims is caused by a party indemnified hereunder. 11. ADDRESS OF NOTICE AND COMMUNICATIONS CITY: ENGINEER: CITY OF PORT ARTHUR Arceneaux Wilson& Cole P.O. Box 1089 2901 Turtle Creek Drive Suite 320 Port Arthur, Texas 77641 Port Arthur, TX 77642 Attn: Alberto Elefano, P.E. Attn: Joe M. Wilson, Jr., PE Director of Public Works All notices and communications under this Contract shall be mailed or delivered to CITY and ENGINEER at the above addresses. 12. CAPTIONS Each paragraph of this Contract has been supplied with a caption to serve only as a guide to the contents. The caption does not control the meaning of any Paragraph or in any way determine its interpretation or application. Page 8 13. SUCCESSORS AND ASSIGNMENTS The CITY and the ENGINEER each binds himself and his successors, executors, administrators, and assigns to the other party of this Contract and to the successors, executors, administrators and assigns of such other party,in respect to all covenants of this Contract. Except as above, neither the CITY nor the ENGINEER shall assign, sublet, or transfer his interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of any public body which may be a party hereto. 14. TERMINATION OF CONTRACT FOR CAUSE If, through any cause, the ENGINEER shall fail to fulfill in timely and proper manner his obligations under this Contract,or if the ENGINEER shall violate any of the covenants,agreements, or stipulations of this Contract,the CITY shall thereupon have the right to terminate this Contract by giving written notice to the ENGINEER of such termination and specifying the effective date thereof,at least five(5)days before the effective date of such termination. In such event,all finished or unfinished documents, data, studies, survey, drawings, maps, models, photographs, and reports prepared by the ENGINEER under this Contract shall,at the option of the CITY,become its property and the ENGINEER shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder. Notwithstanding the above,the ENGINEER shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of the Contract by the ENGINEER and the CITY may withhold any payment to the ENGINEER for the purpose of setoff until such time as the exact amount of damages due the CITY from the ENGINEER is determined. 15. TERMINATION FOR CONVENIENCE OF THE CITY The CITY may terminate this Contract at any time by giving at least thirty(30)days notice in writing to the ENGINEER. If the Contract is terminated by the CITY as provided herein, the ENGINEER will be paid for the percentage of work completed and expenses incurred up to the termination date. If this Contract is terminated due to the fault of the ENGINEER, Paragraph 14 hereof relative to termination shall apply. 16. CHANGES The CITY may, from time to time, request changes in the scope of the services of the ENGINEER to be performed hereunder. Such changes, including any increase or decrease in the amount of the ENGINEER'S compensation, which are mutually agreed upon by and between the CITY and ENGINEER shall be incorporated in written amendments to this Contract. 17. PERSONNEL A. The ENGINEER represents that he has, or will secure at his own expense, all personnel required in performing the services under this Contract. Such personnel shall not be employees of the CITY. B. All of the services required hereunder shall be performed by the ENGINEER or under his supervision and all personnel engaged in the work shall be fully qualified and,if applicable shall be authorized or permitted under State and local law to perform such services. Page 9 C. None of the work or services covered by this Contract shall be subcontracted without the prior written approval of the CITY. Any work or services subcontracted hereunder shall be specified by written Contract or agreement and shall be subject to each provision of this Contract. 18. REPORTS AND INFORMATION The ENGINEER at such times and in such forms as the CITY may require, shall furnish the CITY such periodic reports s it may request pertaining to the work or services undertaken pursuant to this Contract,the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this Contract. 19. CIVIL RIGHTS Under Chapter 106 Civil Practice and Remedies Code of the Revised Civil Statutes of Texas, no person shall, on the grounds of race, religion, color, sex or national origin, be excluded due to discrimination under any program or activity of the CITY. The ENGINEER will carry out its work under this Contract in a manner which will permit full compliance by the CITY with the Statute. 20. INTEREST OF ENGINEER AND EMPLOYEES The ENGINEER covenants that he presently has no interest and shall not acquire any interest, direct or indirect, in the study area or any parcels therein or any other interests which would conflict in any manner or degree with the performance of his services hereunder. The ENGINEER further covenants that in the performance of this Contract,no person having any such interest shall be employed. 21. STATE AND FEDERAL CONTRACT CLAUSES INCLUDED AS PART OF THE CONTRACT 1. Pursuant to Sections 2270.001, 2270.002, 808.001, Texas Government Code: a. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specificallywithIsrael,orwithapersonorentitydoingbusinessinIsrael or in an Israeli-controlled territory,but does not include an actionmadefor ordinary business purposes;and b. "Company" has the meaning assigned by Section 808.001, except that the term does not include a sole proprietorship. c. Section only applies to a contract that is between a governmental entity and a companywith 10 or more full-time employees;and has a value of$100,000 or more that is to be paid wholly or partlyfrom pubic funds ofthe governmental entity. d. CONSULTANT being an adult over the age of eighteen(18)years of age, after being duly sworn by the undersigned notary, do hereby depose and verify under oath that the Page 10 company named-above, under the provisions of Subtitle F, Title 10, Government Code Chapter 2270: •Does not boycott Israel currently;and •Will not boycott Israel during the term of the contract the above-named Company,business or individual with the OWNER. PROPOSER'S CERTIFICATION REGARDING DEB.ARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION (49 CFR PART 29) The CONSULTANT certifies, by acceptance of this contract, that neither CONSULTANT nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntary excluded from participation in this transaction by any Federal department or agency. CONSULTANT agrees that by signing this Contract, that CONSULTANT will include this clause without modification in all lower tier transactions, solicitations, proposals, contracts, and subcontracts. 2. NO GOVERNMENT OBLIGATION TO THIRD PARTIES. The OWNER and CONSULTANT acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract,absent the express written consent by the Federal Government,the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Owner,CONSULTANT,or any other party(whether or not a party to that contract)pertaining to any matter resulting from the underlying contract. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 31 U.S.C. 3801 et seq. CONSULTANT acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq., "Administrative Remedies for False Claims and Statements," apply to its actions pertaining to this Project. Upon execution of the underlying contract,the CONSULTANT certifies or affirms the truthfulness and accuracy of any statement it has made,it makes, it may make, or causes to be made, pertaining to the underlying contract for which this contract work is being performed. In addition to other penalties that may be applicable,the CONSULTANT further acknowledges that if it makes,or causes to be made,a false,fictitious,or fraudulent claim,statement,submission,or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the CONSULTANT to the extent the Federal Government deems appropriate. Page 11 4. ACCESS TO RECORDS AND REPORTS The following access to records requirements apply to this contract: (1) The CONSULTANT agrees to provide OWNER, the FEMA Administrator, the Comptroller General of the United States,or any of their authorized representatives access to any books,documents,papers,and records of the CONSULTANT which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. (2) The CONSULTANT agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonablyneeded. (3) The CONSULTANT agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under thecontract." 5. EQUAL EMPLOYMENT OPPORTUNITY 29 CFR Part 1630, 41 CFR Parts 60 et seq. During the performance of this contract, the CONSULTANT agrees as follows: (1) The CONSULTANT will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The CONSULTANT will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race,color,religion,sex,or national origin. Such action shall include,but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising;layoff or termination;rates of pay or other forms of compensation;and selection for training,including apprenticeship.The CONSULTANT agrees to post in conspicuous places,available to employees and applicants for employment,notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The CONSULTANT will, in all solicitations or advertisements for employees placed by or on behalf of the CONSULTANT, state that all qualified applicants will receive considerations for employment without regard to race,color,religion, sex, or national origin. (3) The CONSULTANT will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives ofthe CONSULTANT's commitments under this section,and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The CONSULTANT will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. Page 12 (5) The CONSULTANT will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor,or pursuant thereto,and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (6) In the event of the CONSULTANT'S noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the CONSULTANT may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions as may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965,or by rule,regulation,or order of the Secretary of Labor,or as otherwise provided by law. (7) The CONSULTANT will include the portion of the sentence immediately preceding paragraph(1)and the provisions of paragraphs(1)through(7)in every subcontract or purchase order unless exempted by rules,regulations,or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subconsultant or vendor.The CONSULTANT will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided,however,That in the event a CONSULTANT becomes involved in,or is threatened with, litigation with a subconsultant or vendor as a result of such direction by the administering agency the CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States." 6. GOVERNMENT-WIDE SUSPENSION AND DEBARMENT By signing the contract, the CONSULTANT agrees to comply with the following: (1) This contract is a covered transaction for purposes of 2 C.F.R.pt. 180 and 2 C.F.R. pt. 3000. As such the CONSULTANT is required to verify that none of the CONSULTANT, its principals (defined at 2 C.F.R. §180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (2) The CONSULTANT must comply with 2 C.F.R.pt. 180,subpart C and 2 C.F.R.pt. 3000,subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. (3) This certification is a material representation of fact relied upon by OWNER.If it is later determined that the CONSULTANT did not comply with 2 C.F.R. pt. 180, Page 13 subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to OWNER, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (4) The CONSULTANT agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The CONSULTANT further agrees to include a provision requiring such compliance in its lower tier covered transactions. 7. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 29 CFR § 5.5(b) (1) Overtime requirements - No CONSULTANT or SUBCONSULTANT contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (1) of this section the CONSULTANT and any subconsultant responsible therefor shall be liable for the unpaid wages. In addition,such CONSULTANT and subconsultant shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of$10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. (3) Withholding for unpaid wages and liquidated damages—The OWNER shall, upon its own action or upon written request of an authorized representative of the Department of Labor,withhold or cause to be withheld, from any moneys payable on account of work performed by the CONSULTANT or SUBCONSULTANT under any such contract or any other Federal contract with the same prime consultant,or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by the same prime CONSULTANT,such sums as may be determined to be necessary to satisfy any liabilities of such CONSULTANT or subconsultant for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. Page 14 (4) Subcontracts - CONSULTANT or SUBCONSULTANT shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the SUBCONSULTANT to include these clauses in any lower tier subcontracts. The prime CONSULTANT shall be responsible for compliance by any SUBCONSULTANT or lower tier SUBCONSULTANT with the clauses set forth in paragraphs(1)through(4) of this section. 8. Byrd Anti-Lobbying Amendment,31 U.S.C. § 1352(as amended) CONSULTANT agrees to the following certifications: CONSULTANTS who apply or bid for an award of$100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient. The CONSULTANT certifies,to the best of his or her knowledge,that: 1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement,and the extension,continuation,renewal,amendment, or modification of any Federal contract,grant,loan,or cooperative agreement. 2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with this Federal contract,grant,loan,or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL,"Disclosure Form to Report Lobbying,"in accordance with its instructions. 3) The CONSULTANT shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants and contracts under grants,loans,and cooperative agreements)and that all subrecipients shall certify and disclose accordingly. Page 15 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to the required certification shall be subject to a civil penalty of not less than$10,000 and not more than$100,000 for each such failure. The CONSULTANT certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure,if any.In addition, CONSULTANT understands and agrees that the provisions of 31 U.S.C. § 3801 et seq apply to this certification and disclosure, ifany. 9. CLEAN AIR 42 U.S.C. § 7401 et seq. CONSULTANT agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act,as amended,42 U.S.C. §§7401 et seq. The CONSULTANT agrees to report each violation to the Owner and understands and agrees that the Owner will, in turn, report each violation as required to assure notification to the State of Texas, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office. CONSULTANT also agrees to include these requirements in each subcontract exceeding$150,000 financed in whole or in part with Federal assistance provided by FEMA. 10. CLEAN WATER REQUIREMENTS 33 U.S.C. 1251 et seq. CONSULTANT agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended,33 U.S.C. 1251 et seq.CONSULTANT agrees to report each violation to the Owner and understands and agrees that the Owner will,in turn,report each violation as required to assure notification to the State of Texas, Federal Emergency Management Agency,and the appropriate Environmental Protection Agency Regional Office. CONSULTANT also agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 11. PROCUREMENT OF RECOVERED MATERIALS 42 U.S.C. 6962 In the performance of this contract, the CONSULTANT shall make maximum use of products containing recovered materials that are EPA- designated items unless the product cannot be acquired— (i) Competitively within a timeframe providing for compliance with the contract performance schedule; Page 16 (ii) Meeting contract performance requirements;or (iii) At a reasonable price. Information about this requirement, along with the list of EPA-designate items, is available at EPA's Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. 12. Section 3 clause. All section 3 covered contracts shall include the following clause (referred to as the section 3 clause): A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u(section 3).The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135,which implement section 3.As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. C. The CONSULTANT agrees to send to each labor organization or representative of workers with which the CONSULTANT has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the CONSULTANT'S commitments under this section 3 clause,and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire,availability of apprenticeship and training positions,the qualifications for each; and the name and location of the person(s) taking applications for each of the positions;and the anticipated date the work shall begin. D. The CONSULTANT agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135,and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the Subconsultant is in violation of the regulations in 24 CFR part 135. The CONSULTANT will not subcontract with any Subconsultant where the Page 17 CONSULTANT has notice or knowledge that the Subconsultant has been found in violation of the regulations in 24 CFR part 135. E. The CONSULTANT will certify that any vacant employment positions, including training positions, that are filled (1) after the CONSULTANT is selected but before the contract is executed, and(2)with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the CONSULTANT's obligations under 24 CFR part 135. F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. G. With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract.Section 7(b)requires that to the greatest extent feasible(i)preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of section 3 and section 7(b)agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b). 13. COMPLIANCE WITH DAVIS-BACON ACT AND COPELAND "ANTI- KICKBACK"ACT (1)Minimum wages-(i)All laborers and mechanics employed or working upon the site of the work(or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project),will be paid unconditionally and not less often than once a week,and without subsequent deduction or rebate on any account(except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits(or cash equivalents thereof)due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof,regardless of any contractual relationship which may be alleged to exist between the CONSULTANT and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2)of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics,subject to the provisions of paragraph(1)(iv)of this section; also, regular contributions made or costs incurred for more than a weekly period (but not Page 18 less often than quarterly)under plans,funds,or programs which cover the particular weekly period,are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill,except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed.The wage determination(including any additional classifications and wage rates conformed under paragraph(1)(ii)of this section)and the Davis-Bacon poster(WH-1321) shall be posted at all times by the CONSULTANT and its subconsultant at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be performed by the classification requested is not performed by a classification in the wage determination;and (2) The classification is utilized in the area by the construction industry;and (3) The proposed wage rate,including any bona fide fringe benefits,bears a reasonable relationship to the wage rates contained in the wage determination;and (4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in the area in which the work is performed. (B) If the CONSULTANT and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division,Employment Standards Administration,U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the CONSULTANT,the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the Page 19 proposed classification and wage rate(including the amount designated for fringe benefits, where appropriate),the contracting officer shall refer the questions,including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator,or an authorized representative,will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate(including fringe benefits where appropriate)determined pursuant to paragraphs(a)(1)(ii)(B)or(C)of this section,shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the CONSULTANT shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the CONSULTANT does not make payments to a trustee or other third person, the CONSULTANT may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program,Provided,That the Secretary of Labor has found,upon the written request of the CONSULTANT,that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the CONSULTANT to set aside in a separate account assets for the meeting of obligations under the plan orprogram. (v)(A)The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination;and (2) The classification is utilized in the area by the construction industry;and (3) The proposed wage rate,including any bona fide fringe benefits,bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the CONSULTANT and the laborers and mechanics to be employed in the classification(if known), or their representatives,and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where Page 20 appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, Washington,DC 20210.The Administrator,or an authorized representative,will approve, modify,or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the CONSULTANT,the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate(including the amount designated for fringe benefits, where appropriate),the contracting officer shall refer the questions,including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator,or an authorized representative,will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time isnecessary. (D) The wage rate(including fringe benefits where appropriate)determined pursuant to paragraphs(a)(1)(v)(B)or(C)of this section,shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (2) Withholding-The OWNER shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the CONSULTANT under this contract or any other Federal contract with the same prime CONSULTANT,or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime CONSULTANT, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics,including apprentices,trainees,and helpers,employed by the CONSULTANT or any subconsultant the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work(or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project),all or part of the wages required by the contract, the OWNER may, after written notice to the CONSULTANT, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records- (i) Payrolls and basic records relating thereto shall be maintained by the CONSULTANT during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work(or Page 21 under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name,address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid(including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B)of the Davis- Bacon Act),daily and weekly number of hours worked,deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv)that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis- Bacon Act,the CONSULTANT shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected,and records which show the costs anticipated or the actual cost incurred in providing such benefits. CONSULTANTs employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A)The CONSULTANT shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the OWNER for transmission to the Federal Transit Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under section 5.5(a)(3)(i)of Regulations,29 CFR part 5. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1),U.S. Government Printing Office,Washington, DC 20402. The prime CONSULTANT is responsible for the submission of copies of payrolls by all subconsultants. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the CONSULTANT or subconsultant or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under section 5.5(a)(3)(i)of Regulations, 29 CFR part 5 and that such information is correct andcomplete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part3; Page 22 (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed,as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance"required by paragraph(a)(3)(ii)(B)of this section. (D) The falsification of any of the above certifications may subject the CONSULTANT or subconsultant to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii)The CONSULTANT or subconsultant shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Federal Transit Administration or the Department of Labor,and shall permit such representatives to interview employees during working hours on the job.If the CONSULTANT or subconsultant fails to submit the required records or to make them available, the Federal agency may, after written notice to the CONSULTANT, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment,advance,or guarantee of funds.Furthermore,failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4) Apprentices and trainees—(i)Apprentices—Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau,or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program,who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the CONSULTANT as to the entire work force under the registered program.Any worker listed on a payroll at an apprentice wage rate,who is not registered or otherwise employed as stated above,shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition,any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually Page 23 performed. Where a CONSULTANT is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the CONSULTANT's or subconsultant's registered program shall be observed.Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division ofthe U.S.Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau,withdraws approval ofan apprenticeship program,the CONSULTANT will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees — Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program.If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices.Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program,the CONSULTANT will no longer be permitted Page 24 to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity — The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (5) Compliance with Copeland Act requirements—The CONSULTANT shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. (6) Subcontracts — The CONSULTANT or subconsultant shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1)through(10)and such other clauses as the Federal Transit Administration may by appropriate instructions require,and also a clause requiring the subconsultants to include these clauses in any lower tier subcontracts. The prime CONSULTANT shall be responsible for the compliance by any subconsultant or lower tier subconsultant with all the contract clauses in 29 CFR 5.5. (7) Contract termination: debarment—A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract,and for debarment as a CONSULTANT and a subconsultant as provided in 29 CFR 5.12. (8) Compliance with Davis-Bacon and Related Act requirements — All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1,3,and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards—Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the CONSULTANT (or any of its subconsultants) and the contracting agency,the U.S.Department of Labor,or the employees or their representatives. (10) Certification of eligibility—(i)By entering into this contract,the CONSULTANT certifies that neither it (nor he or she) nor any person or firm who has an interest in the CONSULTANT's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). Page 25 (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C.1001. 22. COMMUNITY DEVELOPMENT BLOCK GRANT—DISASTER RECOVERY (CDBG-DR) Mandated Contract Clauses Economic Opportunities for Section 3 Residents and Section 3 Business Concerns. a. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968,as amended, 12 U.S.C. 1701u(section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. b.The parties to this Agreement agree to comply with HUD's regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of this contract,the parties to this Agreement certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. c.The Firm agrees to send to each labor organization or representative of workers with which the Firm has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers'representative of the Firm's commitments under this section 3 clause,and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. d. The Firm agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135,and agrees to take appropriate action,as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The Firm will not subcontract with any subcontractor where the Firm has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. Page 26 e. The Firm will certify that any vacant employment positions,including training positions, that are filled (1)after the Finn is selected but before the contract is executed, and(2)with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the Firm's obligations under 24 CFR part 135. f. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this Agreement for default, and debarment or suspension from future HUD assisted contracts. g. With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b)of the Indian Self-Determination and Education Assistance Act(25 U.S.C. 450e) also applies to the work to be performed under this Agreement. Section 7(b) requires that to the greatest extent feasible(i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of section 3 and section 7(b)agree to comply with section 3 to the maximum extent feasible,but not in derogation of compliance with section 7(b). 23. INCORPORATION OF PROVISIONS REQUIRED BY LAW Each provision and clause required by law to be inserted into the Contract shall be deemed to be enacted herein and the Contract shall be read and enforced as though each were included herein. If through mistake or otherwise any such provision is not inserted or is not correctly inserted, the Contract shall be amended to make such insertion on application by either party. EXECUTED IN TWO (2) counterparts (each of which is an original) on behalf of ENGINEER by Joe M. Wilson Jr., PE its President shown below, and on behalf of the CITY by its Mayor and City Manager. Page 27 ACCEPTED: PROPOSED AND AGREED TO: CITY: ENGINEER: CITY OF PORT ARTHUR, TEXAS MAYOR REPRESENTATIVE DATE: DATE: CITY MANAGER DATE: ATTEST: ATTEST: City Secretary APPROVED AS TO FORM: CITY ATTORNEY Page 28