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HomeMy WebLinkAbout287-23 RESOLUTIONa04 FAYFI)f ` L l.0 _ N- 9q#ANti�'� 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 287-23 File Number: 2023-1441 TSW, INC. (SERVICE AGREEMENT): A RESOLUTION TO AUTHORIZE A CONTRACT WITH TSW, INC., PURSUANT TO RFQ 22-01, FOR DESIGN SERVICES ASSOCIATED WITH PHASE ONE IMPROVEMENTS TO WALKER COMMUNITY PARK FOR AN AMOUNT NOT TO EXCEED $203,075.00, TO APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF $10,000.00, AND TO APPROVE A BUDGET ADJUSTMENT — PARK IMPROVEMENT BOND PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign a contract with TSW, Inc. pursuant to RFQ 22-01, for design services associated with Phase One Improvements to Walker Community Park for an amount not to exceed $203,075.00, and further approves a project contingency in the amount of $10,000.00. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment, a copy of which is attached to this Resolution. PASSED and APPROVED on December 19, 2023 Page 1 Attest: ,`,��t t t i►rrr�� Kara Paxton, City Cl ��--IO rk Treasures AYETTEVILL• ; CITY OF FAYETTEVILLE ARKANSAS MEETING OF DECEMBER 19, 2023 CITY COUNCIL MEMO TO: Mayor Jordan and City Council THRU: Susan Norton, Chief of Staff Alison Jumper, Director of Parks, Natural Resources and Cultural Affairs FROM: Ted Jack, Park Planning Superintendent DATE: SUBJECT: Walker Community Park Phase One Improvements Design Contract RECOMMENDATION: 2023-1441 Staff recommends entering a contract with TSW, Inc. to provide design services for Phase One improvements to Walker Community Park for a fee not to exceed $203,075.00 and to approve a project contingency of $10,000 and associated Budget Adjustment. BACKGROUND: TSW was selected through RFQ 22-01, Selection 10, to provide a master plan and design documents for Walker Community Park. The master plan has been completed and this contract will continue their work creating the construction and bid documents, and construction administration necessary for phase one improvements at the park. DISCUSSION: Walker Park and the surrounding neighborhood have seen much change over the past several years. Today, much of the south part of the park has limited use. Fayetteville Youth Baseball has used the park for decades for their leagues; however, four new ballfields were recently completed at Kessler Mountain Regional Park creating a new home for the club. In this first phase of construction, the area where the old fields south of 13th Street will be changed to a more diverse area offering many recreational opportunities as shown in the new master plan. BUDGET/STAFF IMPACT: Funds for this contract are available in the Parks Projects Bond Phase II (2022) Fund in project (46050.7550.2000). PURCHASE ORDER DETAILS GLACCOUNT PROJECT AMOUNT Notes: 4705.860.7550-5860.02 46050.7550.2000 $203,075.00 Design Contract Mailing address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 TOTAL $203,075.00 ATTACHMENTS: SRF (#3), BA (#4), TSW Professional Design Contract Ph One 11 28 23 (#5), TSW Scope of Services 11.28.23 Appendix A (#6) Mailing address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 == City of Fayetteville, Arkansas y 113 West Mountain Street Fayetteville, AR 72701 (479)575-8323 - Legislation Text File #: 2023-1441 Walker Community Park Phase One Improvements Design Contract A RESOLUTION TO AUTHORIZE A CONTRACT WITH TSW, INC., PURSUANT TO RFQ 22-01, FOR DESIGN SERVICES ASSOCIATED WITH PHASE ONE IMPROVEMENTS TO WALKER COMMUNITY PARK FOR AN AMOUNT NOT TO EXCEED $203,075.00, TO APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF $10,000.00, AND TO APPROVE A BUDGET ADJUSTMENT — PARK IMPROVEMENT BOND PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign a contract with TSW, Inc. pursuant to RFQ 22-01, for design services associated with Phase One Improvements to Walker Community Park for an amount not to exceed $203,075.00, and further approves a project contingency in the amount of $10,000.00. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment, a copy of which is attached to this Resolution. Page 1 Ted Jack Submitted By City of Fayetteville Staff Review Form 2023-1441 Item ID 12/17/2023 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item 11/29/2023 PARKS & RECREATION (520) Submitted Date Division / Department Action Recommendation: Staff recommends entering a contract with TSW, Inc. to provide design services for Phase One improvements to Walker Community Park for a fee not to exceed $203,075.00 and to approve a project contingency of $10,000 and associated Budget Adjustment. 4705.860.7550-5860.02 Account Number 46050.7550.2000 Project Number Budgeted Item? Yes Does item have a direct cost? Yes Is a Budget Adjustment attached? Yes Purchase Order Number: Change Order Number: Original Contract Number: Comments: Budget Impact: Parks Project 2022 Bonds Fund Park Projects (2019/2022 Bonds) - Walker Park Impr, Phase One Total Amended Budget Expenses (Actual+Encum) Available Budget Item Cost Budget Adjustment Remaining Budget Project Title $ 96,208.00 $ 91,207.50 5,000.50 $ 203,075.00 $ 213,075.00 15,000.50 V20221130 Previous Ordinance or Resolution # 2022-0935 Approval Date: City of Fayetteville, Arkansas - Budget Adjustment (Agenda) Budget Year Division Adjustment Number PARKS &RECREATION (520) /Org2 2023 Requestor: Alan Bearden BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION: Budget adjustment to allocate funds to enter a contract with TSW, Inc. for design services for Phase 1 improvements at Walker Community Park. The not -to -exceed contract amount is $203,075 and the related contingency is an additional $10,000. COUNCIL DATE: 12/19/2023 ITEM ID#: 2023-1441 Holly Black 7713012023 7. q7 RIn RESOLUTION/ORDINANCE Budget Division Date TYPE: D - (City Council) JOURNAL #: GLDATE: CHKD/POSTED: TOTAL Account Number - - Increase / (Decrease) Expense Revenue Project.Sub# Project Sub.Detl AT v.20231113 Account Name 4705.860.7550-5860.02 203,075 - 46050 7550.2000 EX Capital Prof Svcs - Engineering/Architecture 4705.860.7550-5911.99 4705.860.7999-5899.00 10,000 - (213,075) - 46050 46050 7550.2000 EX 7999 EX Contingency - Capital Project Unallocated - Budget I of 1 CITY OF FAYETTEVILLE ARKANSAS CONTRACT FOR PROFESSIONAL SERVICES ENGINEERING & LANDSCAPE ARCHITECTURAL SERVICES WALKER PARK PHASE ONE IMPROVEMENTS between City of Fayetteville, Arkansas and TSW, Inc. THIS AGREEMENT is executed this 19 day of December 202 3 , by and between the City of Fayetteville acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE or CITY) and TSW, Inc. (hereinafter called "TSW" or "Consultant"). CITY OF FAYETTEVILLE requires professional services in connection with proposed improvements to Walker Community Park. TSW was selected through RFQ 22-01, Selection 9 to provide master planning services for Walker Park. This contract continues services through construction of Phase One improvements as identified in this contract. Therefore, City and TSW in consideration of their mutual covenants agree as follows: TSW shall serve as the professional consultant to the CITY in those assignments to which this Agreement applies and shall give consultation and advice to CITY OF FAYETTEVILLE during the performance of services defined in the scope of work. All services shall be performed under the direction of a licensed landscape architect or engineer registered in the State of Arkansas and qualified in the particular field. 1. Contracted parties: a. This agreement shall be binding between all parties. Fees for professional services shall be provided as identified in appendices. 2. Entire Agreement and Exhibits: This Agreement sets forth the entire agreement and understanding between the parties on the subject matter of this Agreement. Parties shall not be bound by any conditions, definitions, representations or warranties with respect to the subject matter of this Agreement other than those as expressly provided herein. This agreement may be modified only by a duly executed written instrument signed by the CITY and TSW. a. Appendices included under this agreement include the following and shall govern in the following order. Contract language in this document shall prevail over all exhibits: i. Appendix A: Scope of Work & Fees ii. Appendix B: Topographical Survey Area 3. Notices: Any notice required under this Agreement shall be in writing, address to the appropriate party at the following addresses: Design Services for Walker Park Phase One Improvements Agreement 1 1 a. City of Fayetteville: Attention: Mayor Lioneld Jordan, 113 W. Mountain, Fayetteville, AR 72701 TSW: Attention: Adam Williamson, PLA, LEED AP, Principal -in -Charge, 1447 Peachtree St, Ste 850 Atlanta GA 30309 4. Fees, Expenses, and Payments: a. The maximum not -to -exceed amount authorized for this agreement is $203,075.00 US DOLLARS which includes the services as shown below. Progress payments shall be paid to the TSW as described in Appendix A. b. TSW shall track, log and report hours and expenses directly related to this Agreement. Invoices shall be itemized by phase. Invoice and payment requests shall not exceed the percentage of work completed as defined by Appendix A. c. Payment Terms: All invoices are payable upon approval and due within thirty (30) calendar days. If a portion of an invoice or statement is disputed by CITY, the undisputed portion shall be paid. CITY OF FAYETTEVILLE shall advise TSW in writing of the basis for any disputed portion of any invoice. CITY shall make reasonable effort to pay invoices within 30 calendar days of date the invoice is approved. d. Monthly invoices for each calendar month shall be submitted to CITY OF FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for professional services consistent with TSW normal billing schedule. Once established, the billing schedule shall be maintained throughout the duration of the Project. Invoices shall be made in accordance with a format to be developed by TSW and approved by CITY OF FAYETTEVILLE. Applications for payment shall be accompanied each month by the updated project schedule as the basis for determining the value earned as the work is accomplished. Final payment for professional services shall be made upon CITY OF FAYETTEVILLE'S approval and acceptance with the satisfactory completion of professional services for the Project. e. Final Payment: Upon satisfactory completion of the work performed under this Agreement, as a condition before final payment under this Agreement, or as a termination settlement under this Agreement, TSW shall execute and deliver to CITY OF FAYETTEVILLE a release of all claims against CITY OF FAYETTEVILLE arising under or by virtue of this Agreement, except claims which are specifically exempted by TSW to be set forth therein. i. Unless otherwise provided in this Agreement or by State law or otherwise expressly agreed to by the parties to this Agreement, final payment under this Agreement or settlement upon termination of this Agreement shall not constitute a waiver of CITY OF FAYETTEVILLE claims against TSW or sureties under this Agreement. 5. Notices: Any notice required to be given under this Agreement to either party to the other shall be sufficient if addressed and mailed, certified mail, postage paid, delivery, fax or e-mail (receipt confirmed), or overnight courier. 6. Jurisdiction: Legal jurisdiction to resolve any disputes shall be Arkansas with Arkansas law applying to the case. 7. Venue: Venue for all legal disputes shall be Washington County, Arkansas. 8. Freedom of Information Act: City of Fayetteville contracts and documents prepared while performing city contractual work are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act Design Services for Walker Park Phase One Improvements Agreement 12 request is presented to the City of Fayetteville, the architect will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. 25-19-101 et. Seq.). Only legally authorized photo coping costs pursuant to the FOIA may be assessed for this compliance. 9. Changes in Scope or Price: Changes, modifications, or amendments in scope, price or fees to this contract shall not be allowed without a prior formal contract amendment approved by the Mayor and in some instances the City Council in advance of the change in scope, cost or fees. 10. Omissions by the Consultant: If TSW or its subconsultants fails to include or omits an item from the Contract Documents, which was fully anticipated to be included in the Project, thereby necessitating the need for a Change Order, TSW will not receive a fee for work associated with the Change Order. 11. Insurance: TSW shall furnish a certificate of insurance addressed to the City of Fayetteville, showing coverages for the following insurance which shall be maintained throughout the term of this agreement. Any work sublet to major subconsultants including MEP, Structural, and Civil, TSW shall require the subconsultant to provide the insurance identified. In case any employee engaged in work on the project under this contract is not protected under Worker's Compensation Insurance, TSW shall provide and shall cause each Subcontractor to provide adequate insurance for the protection of such of his employees as are not otherwise protected. a. TSW shall provide to the City certificates as evidence of the specified insurance presented in Appendix C within ten (10) calendar days of the date of this agreement and upon each renewal coverage. The City shall be listed as additional insured entity. b. Subconsultants shall maintain reasonable insurance including but not limited to worker's compensation, auto as applicable, general liability, errors and omissions, etc. 12. Professional Responsibility: TSW will exercise reasonable skill, care, and diligence in the performance of services and will carry out its responsibilities in accordance with customarily accepted professional practices. CITY OF FAYETTEVILLE will promptly report to TSW any defects or suspected defects in services of which CITY OF FAYETTEVILLE becomes aware, so TSW can take measures to minimize the consequences of such a defect. CITY OF FAYETTEVILLE retains all remedies to recover for its damages caused by any negligence of TSW. 13. Responsibility of the City of Fayetteville a. CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of TSW: i. Provide full information as to the requirements for the Project. ii. Assist TSW by placing at TSW's disposal all available information pertinent to the assignment including previous reports and any other data relative thereto. iii. Assist TSW in obtaining access to property reasonably necessary for TSW to perform its services under this Agreement. iv. Examine all studies, reports, sketches, cost opinions, proposals, and other documents presented by TSW and render in writing decisions pertaining thereto. v. Review all documents and provide written comments to TSW in a timely manner. vi. The City of Fayetteville's Park Planning Superintendent is the project representative with respect to the services to be performed under this Agreement. The Park Planning Superintendent shall have complete authority to transmit instructions, receive Design Services for Walker Park Phase One Improvements Agreement 13 information, interpret and define policies and decisions with respect to materials, equipment, elements and systems to be used in the Project, and other matters pertinent to the services covered by this Agreement. 14. Cost Opinions and Projections: Cost opinions and projections prepared by TSW relating to construction costs and schedules, operation and maintenance costs, equipment characteristics and performance, cost estimating, and operating results are based on TSW's experience, qualifications, and judgment as a design professional. Since TSW has no control over weather, cost and availability of labor, material and equipment, labor productivity, construction Contractors' procedures and methods, unavoidable delays, construction Contractors' methods of determining prices, economic conditions, competitive bidding or market conditions, and other factors affecting such cost opinions or projections, TSW does not guarantee that actual rates, costs, performance, schedules, and related items will not vary from cost opinions and projections prepared by TSW. 15. Period of Service: This Agreement will become effective upon the first written notice by CITY OF FAYETTEVILLE authorizing services hereunder. a. The provisions of this Agreement have been agreed to in anticipation of the orderly progress of the Project through completion of the services stated in the Agreement. TSW will proceed with providing the authorized services immediately upon receipt of written authorization from CITY OF FAYETTEVILLE. Said authorization shall include the scope of the services authorized and the time in which the services are to be completed. The anticipated schedule for this project is included within Appendix A. 16. Debarment Certification: TSW hereby provides debarment/suspension certification indicating compliance with the below Federal Executive Order. Federal Executive Order (E.O.) 12549 "Debarment and Suspension" requires that all contractors receiving individual awards, using federal funds, and all sub - recipients certify that the organization and its principals are not debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency from doing business with the Federal Government. TSW hereby attests its principal is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. 17. Termination: a. This Agreement may be terminated in whole or in part in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party, provided that no termination may be effected unless the other party is given: i. Not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate, ii. An opportunity for consultation with the terminating party prior to termination. b. This Agreement may be terminated in whole or in part in writing by CITY OF FAYETTEVILLE for its convenience, provided that TSW is given: i. Not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate, ii. An opportunity for consultation with the terminating party prior to termination. c. If termination for default is affected by CITY OF FAYETTEVILLE, an equitable adjustment in the price Design Services for Walker Park Phase One Improvements Agreement 14 provided for in this Agreement shall be made, but i. No amount shall be allowed for anticipated profit on unperformed services or other work, ii. Any payment due to TSW at the time of termination may be adjusted to cover any additional costs to CITY OF FAYETTEVILLE because of TSW's default. d. If termination for default is affected by TSW, or if termination for convenience is affected by CITY OF FAYETTEVILLE, the equitable adjustment shall include a reasonable profit for services or other work performed. The equitable adjustment for any termination shall provide for payment to TSW for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by TSW relating to commitments which had become firm prior to the termination. e. Upon receipt of a termination action, TSW shall: i. Promptly discontinue all affected work (unless the notice directs otherwise), ii. Deliver or otherwise make available to CITY OF FAYETTEVILLE all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by TSW in performing this Agreement, whether completed or in process. f. Upon termination under sections above CITY OF FAYETTEVILLE may take over the work and may award another party an agreement to complete the work under this Agreement. g. If, after termination for failure of TSW to fulfill contractual obligations, it is determined that TSW had not failed to fulfill contractual obligations, the termination shall be deemed to have been for the convenience of CITY OF FAYETTEVILLE. In such event, adjustments of the agreement price shall be made as provided in this agreement. 18. Delays a. In the event the services of TSW are significantly suspended or delayed by CITY OF FAYETTEVILLE or by other events beyond TSW's reasonable control, TSW shall be entitled to additional compensation and time for reasonable documented costs actually incurred by TSW in temporarily closing down or delaying the Project. b. In the event the services are suspended or delayed by TSW, City shall be entitled to compensation for its reasonable costs incurred in temporarily closing down or delaying the project. The City does not agree to waive its right to claim (in addition to direct damages) special, indirect, or consequential damages, whether such liability arises in breach of contract or warranty, tort (including negligence), strict or statutory liability, or any other cause of action. 19. Rights and Benefits a. TSW 's services shall be performed solely for the benefit of CITY OF FAYETTEVILLE and not for the benefit of any other persons or entities. 20. Dispute Resolution a. Scope of Paragraph: The procedures of this Paragraph shall apply to any and all disputes between CITY OF FAYETTEVILLE and TSW which arise from, or in any way are related to, this Agreement, including, but not limited to the interpretation of this Agreement, the enforcement of its terms, any acts, errors, or omissions of CITY OF FAYETTEVILLE or TSW in the performance of this Agreement, and disputes concerning payment. b. Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate. If timely Notice is given as described in this agreement, but an action is initiated prior to exhaustion Design Services for Walker Park Phase One Improvements Agreement 1 5 of these procedures, such action shall be stayed, upon application by either party to a court of proper jurisdiction, until the procedures in this agreement have been complied with. c. Notice of Dispute i. For disputes arising prior to the making of final payment promptly after the occurrence of any incident, action, or failure to act upon which a claim is based, the party seeking relief shall serve the other party with a written Notice. ii. For disputes arising within one year after the making of final payment, CITY OF FAYETTEVILLE shall give TSW written Notice at the address listed in this agreement within thirty (30) calendar days after occurrence of any incident, accident, or first observance of defect or damage. In both instances, the Notice shall specify the nature and amount of relief sought, the reason relief should be granted, and the appropriate portions of this Agreement that authorize the relief requested. iii. Negotiation: Within seven (7) calendar days of receipt of the Notice, the Project Managers for CITY OF FAYETTEVILLE and TSW shall confer in an effort to resolve the dispute. If the dispute cannot be resolved at that level, then, upon written request of either side, the matter shall be referred to the President of TSW and the Mayor of CITY OF FAYETTEVILLE or his designee. These officers shall meet at the Project Site or such other location as is agreed upon within 30 calendar days of the written request to resolve the dispute. 21. Sufficient Funds: The CITY represents it has sufficient funds or the means of obtaining funds to remit payment to TSW for services rendered by TSW. 22. Publications: a. Recognizing the importance of professional development on the part of TSW's employees and the importance of TSW's public relations, TSW may prepare publications, such as technical papers, articles for periodicals, promotional materials, and press releases, in electronic or other format, pertaining to TSW's services for the Project. Such publications will be provided to CITY OF FAYETTEVILLE in draft form for CITY OF FAYETTEVILLE's advance review. CITY OF FAYETTEVILLE shall review such drafts promptly and provide CITY OF FAYETTEVILLE's comments to TSW, CITY OF FAYETTEVILLE may require deletion of proprietary data or confidential information from such publications, but otherwise CITY OF FAYETTEVILLE will not unreasonably withhold approval. Approved materials may be used in a variety of situations and do not require additional review or approval for each use. The cost of TSW's activities pertaining to any such publication shall be for TSW's account. 23. Indemnification: a. TSW's shall indemnify, hold harmless and, not excluding the City's right to participate, defend the City and any of its officers, or employees from and against all liabilities, claims, actions, damages, losses and expenses, including without limitation reasonable attorneys' fees and costs, arising out of or resulting in any way from the performance of professional services for the City in TSW's capacity as an landscape architect / engineer, and caused by any willful or negligent error, omission, or act of TSW or any person employed by it or anyone for whose acts TSW is legally liable. 24. Ownership of Documents: a. All documents provided by CITY OF FAYETTEVILLE including original drawings, CAD drawings, estimates, field notes, and project data are and remain the property of CITY OF FAYETTEVILLE. TSW Design Services for Walker Park Phase One Improvements Agreement 16 may retain reproduced copies of drawings and copies of other documents. b. Engineering and architectural documents, computer models, drawings, specifications and other hard copy or electronic media prepared by TSW as part of the Services shall become the property of CITY OF FAYETTEVILLE when TSW has been compensated for Services rendered, provided, however, that TSW shall have an unrestricted perpetual license right to their use. TSW shall, however, retain its rights in its standard drawings details, specifications, databases, computer software, and other proprietary property. Rights to intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of TSW. TSW will provide the city an electronic copy of the CAD files (.dwg compatible). c. Any files delivered in electronic medium may not work on systems and software different than those with which they were originally produced. TSW makes no warranty as to the compatibility of these files with any other system or software. Because of the potential degradation of electronic medium over time, in the event of a conflict between the sealed original drawings/hard copies and the electronic files, the sealed drawings/hard copies will govern. 25. Additional Responsibilities of TSW: a. Review, approval, or acceptance of design drawings, specifications, reports and other services furnished hereunder by CITY shall not in any way relieve TSW of responsibility for the technical adequacy of the work. Review, approval or acceptance of, or payment for any of the services by CITY shall not be construed as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. b. TSW shall be and shall remain liable, in accordance with applicable law, for all damages to CITY OF FAYETTEVILLE caused by TSW's negligent performance, except beyond the TSW normal standard of care, of any of the services furnished under this Agreement, and except for errors, omissions or other deficiencies to the extent attributable to CITY OF FAYETTEVILLE or CITY OF FAYETTEVILLE- furnished data. c. TSW's obligations under this clause are in addition to TSW's other express or implied assurances under this Agreement or State law and in no way diminish any other rights that CITY OF FAYETTEVILLE may have against TSW for faulty materials, equipment, or work. d. Deliverables for Record Documents or "as-builts" shall be defined as the following. TSW will provide one set of Drawings in digital (PDF) format that includes final revisions formalized by TSW through the course of the Work. Field revisions as supplied by the CMAR to TSW at close out shall be included as part of TSW's "As-Builts". TSW will also provide AutoCAD compatible (DWG) vector format digital background files of the construction plans. 26. Audit and Access to Records: a. TSW shall maintain books, records, documents and other evidence directly pertinent to performance on work under this Agreement in accordance with generally accepted accounting principles and practices consistently applied in effect on the date of execution of this Agreement. b. TSW shall also maintain the financial information and data used by TSW in the preparation of support of the cost submission required for any negotiated agreement or change order and send to CITY OF FAYETTEVILLE a copy of the cost summary submitted. CITY OF FAYETTEVILLE, or any of their authorized representatives shall have access to all such books, records, documents and other evidence for the purpose of inspection, audit and copying during normal business hours. TSW will provide proper facilities for such access and inspection. c. Records shall be maintained and made available during performance on assisted work under this Design Services for Walker Park Phase One Improvements Agreement 1 7 Agreement and until three years from the date of final payment for the project. In addition, those records which relate to any controversy arising out of such performance, or to costs or items to which an audit exception has been taken, shall be maintained and made available until three years after the date of resolution of such appeal, litigation, claim or exception. d. This right of access clause (with respect to financial records) applies to: i. Negotiated prime agreements: ii. Negotiated change orders or agreement amendments affecting the price of any formally advertised, competitively awarded, fixed price agreement: iii. Agreements or purchase orders under any agreement other than a formally advertised, competitively awarded, fixed price agreement. However, this right of access does not apply to a prime agreement, lower tier sub agreement or purchase order awarded after effective price competition, except: 1. With respect to record pertaining directly to sub agreement performance, excluding any financial records of TSW; 2. If there is any indication that fraud, gross abuse or corrupt practices may be involved; 3. If the sub agreement is terminated for default or for convenience. 27. Covenant Against Contingent Fees: a. TSW warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement of understanding for a commission, percentage, brokerage or continent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by TSW for the purpose of securing business. For breach or violation of this warranty, CITY OF FAYETTEVILLE shall have the right to annul this Agreement without liability or at its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. 28. Gratuities: a. If CITY OF FAYETTEVILLE finds after a notice and hearing that TSW or any of TSW's agents or representatives, offered or gave gratuities (in the form of entertainment, gifts or otherwise) to any official, employee or agent of CITY OF FAYETTEVILLE, or related third party contractor associated with this project, in an attempt to secure an agreement or favorable treatment in awarding, amending or making any determinations related to the performance of this Agreement, CITY OF FAYETTEVILLE may, by written notice to TSW terminate this Agreement. CITY OF FAYETTEVILLE may also pursue other rights and remedies that the law or this Agreement provides. However, the existence of the facts on which CITY OF FAYETTEVILLE bases such finding shall be in issue and may be reviewed in proceedings under the Remedies clause of this Agreement. b. The CITY may pursue the same remedies against TSW as it could pursue in the event of a breach of the Agreement by TSW. As a penalty, in addition to any other damages to which it may be entitled by law, CITY OF FAYETTEVILLE may pursue exemplary damages in an amount, as determined by CITY, which shall be not less than three nor more than ten times the costs TSW incurs in providing any such gratuities to any such officer or employee. 29. Clarification and Understanding of all parties: a. TSW shall not assign its duties under the terms of this agreement without prior written consent of the City. Subconsultants identified in Appendix A shall be permitted as being referenced herein. Design Services for Walker Park Phase One Improvements Agreement 18 30. Equal Employment Opportunity: The parties hereby incorporate by reference the Equal Employment Opportunity Clause required under 41 C.F.R. § 60-1.4, 41 C.F.R. § 60-300.5(a), and 41 C.F.R. § 60-741.5(a), if applicable. a. Architect shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60- 300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. b. Architect and subconsultants certify that they do not maintain segregated facilities or permit their employees to perform services at locations where segregated facilities are maintained, as required by 41 CFR 60-1.8. IN WITNESS WHEREOF, CITY OF FAYETTEVILLE, ARKANSAS by and through its Mayor, and TSW (CONSULTANT), by its authorized officer have made and executed this Agreement as of the day and year first above written. CITY OF FAY TTEVILLE RKANSAS CITY TSW (CONSULTANT) ` I .Ac�.oiiL (l�cE��co�er� By: By: LIO E JORI)MCM4011 ADAM WILLIAMSON, PRINCIPAL -IN -CHARGE ATTEST: %��RK By: Kara Paxton, City Clerk T asure zz t 1 iF=VILE; ; :�''• kA Nam, •. �`�. Date Signed: December 19, 2023 Date Signed: November 29, 2023 Design Services for Walker Park Phase One Improvements Agreement 19 Exhibit A: Scope of Services and Fees For Walker Park Phase One Improvements Walker Park, 10 W 15th Street, Fayetteville, Arkansas Construction Drawings Phase 1 1 Walker Park The construction drawings are for Phase 1 Walker Park identified in the 2023 Master Plan. The project will consist of removing the existing baseball fields and batting cages. The baseball parking lot, restroom building is to remain and replacing with multi -use sports fields, horseshoe pits, sand volleyball, small playground, and walking trail. Three pickleball courts will be built using the batting cage slab. The estimated construction budget for the project is approximately $2,000,000. The team will consist of the following: TSW (project management and landscape architecture) MCE (surveying/civil engineering) Covalent Consulting (electrical engineering) Task 1: Kick -Off + Coordination 1.1 TSW Team will conduct an initial consultation session (Teams or Zoom meeting) to finalize project approach and make project team introductions. Project goals and timelines for each phase will be finalized during this meeting. Work generally consist of demolition of some existing facilities, construction of new lighted multi purpose grass fields, sand volleyball courts, horseshoes, conversion of existing batting cadges to three pickleball courts, small playground area, supporting seating areas, signage, walkways, drainage, utilities and other improvements in the general locations shown in 1.5 below. 1.2 TSW will manage the project, including all subconsultants, to ensure all work is completed accurately and on time. TSW will also handle all billing of each subconsultant. 1.3 Prepare a boundary, topographic, tree, utility, and field run topographic survey of the project site. A detailed topographic survey within the limits of the subject parcels (Exhibit `B'). Details shown include, but are not limited to: contours at 1' intervals, spot elevations, building corners, FFEs, threshold locations, trees over 6" DBH or larger, existing site features (walls, concrete, roads, curbs, fences, signs, etc.) flood zones, streamside buffers, flowlines, utility poles and pedestals, structures, roads, sidewalks, storm water infrastructure, water mains, sanitary sewer manholes, and utility marks provided by a utility location service. The team will complete records research, field research and boundary resolution of the project parcel. The property lines of the parcel will be shown only on the topographic survey. This scope does not include a separate boundary survey of the property. 1.4 Prepare a pervious surface of existing conditions in the park (square feet) document to be used to show changes in percent of pervious surfaces in future construction projects. 1.5. Primary area of Phase One Improvements ti J 15TH-ST �_ 1011P49 oilhllYWlt'2 'ra,w Task 2: Design Development 2.1 Based on the master plan layout and survey the team will develop the drawings. Design Development drawings will include, but not be limited to: • Revised Overall Site Plan • Enlarged Plans for Key Areas • Hardscape and Landscape Call Outs • Spot Grading Plan • Construction Details • Preliminary Cost Model for Phase I 2.1.1 TSW Team QA/QC review of Design Development documents. 2.1.2 City review of Design Development documents (approximately 3 weeks). Task 3: Construction Documentation 3.1 Based on feedback from Task 3, the TSW Team will advance Design Development drawings into Construction Documents (100% Final Plans). Construction Documents will include, but not be limited to: • Cover Sheet • General Notes • Existing Conditions Plan • Site Demolition Plan • Construction Item Plan • Site Layout Plan • Grading and Drainage Plan • Tree Preservation Plan • Erosion Control Plan • Utility Plan and Profiles • Construction Details • Lighting Layout, Plans, and Details • Electrical Plans • Project Manual Format Specifications ■ Revised Cost Model The drainage design and reporting will be as prescribed by city code. At the time of this proposal, it is assumed that impervious area will be decreased from existing and only required a Green Stormwater Practice (GSP) Worksheet. Design for stormwater detention or water quality is excluded from this contract. 3.1.2 TSW Team QA/QC review of Draft Construction Documents. 3.1.3 City review of Draft Construction Documents (approximately 3 weeks). Task 4: Permitting Services 4.1 The TSW Team will identify necessary permitting early in the planning process and work with local authorities to determine those requirements. 4.1.1 The team will provide project coordination with the project team, utility service providers, and permitting with the City of Fayetteville required to obtain permits necessary for project construction. City Meeting Attendance: MCE shall attend the following city meetings required for project approval: • Pre -application Meeting • Technical Plat Review • Subdivision Committee (if required) • Planning Commission (if required) Additional Meetings: Site visits and project design team meetings will be conducted and attended by McClelland during the design and coordination phases of the project. 4.1.2 Utility Coordination: Coordination with the water and sewer departments for private utility services and connections will be provided. Additionally, MCE will coordinate electric services with SWEPCO. Information gathered during coordination will be shared with the project team and reflected within the final utility plan of the construction document set. Task 5: Bidding + Construction Administration Services 5.1 The TSW Team will provide Bid Phase Services that include, but not limited to: • Attend a pre -bid meeting (if requested) • Issue addenda as necessary • Respond to bidders as necessary • Assist the City with the evaluation of the bidders 5.2 The TSW Team will provide Construction Phase Services that include, but not limited to: • Respond to request for information as needed • Monthly virtual meetings and/or site visits • Prepare construction observation reports as needed • Post Permit and Construction Phase Drawing Revisions Services Not Included • Record drawings • Engineers' certification of improvements • Off site utility plans • Off site street improvement plans such as road widening • LEED permitting / certification • Construction staking services • Conditional -use permits or variances (including variances for work within side the streamside protection areas) • Materials testing • Perspectives, renderings, and models • Traffic studies • Environmental site assessments • Environmental impact analysis • Replatting • Easement Plat • Alley vacation, easements abandonments and right of way dedications • Historical or archeological studies • Major stormwater drainage plans or relocation i.e. box culverts, large ditches and stormwater conductors • Wetlands delineation / 404 permitting • Boundary Survey • Rezoning • Geotechnical reporting • Retaining wall design • Elevation certificates or detailed study of areas within or adjacent to the Spout Spring Branch FEES Task 1-4 will be completed for $158,575. Task 5 & 6 Bidding/CA and Reimbursable Expenses will be completed as a NOT TO EXCEED TASK OF $45,000. Billings will include hours for team members. The project schedule is anticipated to take 12 to 16 months for design, bidding, and construction. Fee Breakdown by Tasks TASK FEE Task 1: Kick -Off + Coordination $35,345 Task 2: Design Development $16,000 Task 3: Construction Documentation $96,455 Task 4: Permitting $10,775 Task 5: Bidding + Construction Admin Work Task Total $158,575 Reimbursable Expenses $40,000 (Not to Exceed) $4,500 (Not to Exceed) Project Total $158,575 $44,500 (Not to Exceed) Maximum fee with expenses is $203,075.