HomeMy WebLinkAbout96-24 RESOLUTIONr
113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 96-24
File Number: 2024-1745
ECOLOGICAL DESIGN GROUP, INC. (SERVICE CONTRACT):
A RESOLUTION TO APPROVE A PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT WITH
ECOLOGICAL DESIGN GROUP, INC. IN AN AMOUNT NOT TO EXCEED $262,000.00 FOR DESIGN
SERVICES ASSOCIATED WITH PHASE ONE IMPROVEMENTS TO UNDERWOOD COMMUNITY PARK, TO
APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF $15,000.00, AND TO APPROVE A BUDGET
ADJUSTMENT
WHEREAS, Ecological Design Group was selected through RFQ 22-01, Selection 9, to prepare a master plan for
Underwood Community Park; and
WHEREAS, the master plan has been completed and this contract will provide for construction and bid documents and
construction administration necessary for Phase One improvements at the park.
NOW, THEREFORE, 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
professional architectural services agreement with Ecological Design Group, Inc. in an amount not to exceed
$262,000.00 to provide design and construction administration services for Phase One improvements to Underwood
Community Park, and further approves a project contingency in the amount of $15,000.00.
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 March 5, 2024
Page 1
Attest:
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MEETING OF MARCH 5, 2024
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
SUBJECT: Underwood Park Phase 1 Improvements Design Contract
RECOMMENDATION:
2024-1745
Staff recommends entering into a contract with Ecological Design Group, Inc. to provide design services for
Phase One improvements to Underwood Community Park for a fee not to exceed $262,000.00 and to approve
a project contingency of $15,000.00 and associated Budget Adjustment.
BACKGROUND:
Ecological Design Group (EDG) was selected through RFQ 22-01, Selection 9, to prepare a master plan for
Underwood 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:
Underwood Community Park is a new Community Park serving the Northwest area of the city. The park is
undeveloped, except for Clabber Creek multiuse trail and some infrastructure from its prior use as a golf
course. The first phase will focus on essential infrastructure including access drive, parking, and restroom to
enable greater use of the park along with park amenities such as a playground, pickleball courts and basketball
court.
BUDGET/STAFF IMPACT:
Funds for this contract are available in the Parks Projects Bond Phase II (2022) Fund in project (46050.7570).
GLACCOUNT PROJECT
4705.860.7570-5860.02 46050.7570
4705.860.7570-5911.99 46050.7570
TOTAL
AMOUNT Notes:
$262,000 Design Contract
$15,000 Contingency
$277,000
ATTACHMENTS: SRF (#3), BA (#4), EDG Underwood Ph1 Contract (#5), Attachment A - Underwood Scope
of Services (#6), Attachment B - Exhibit Program (#7), Approved Plan 01.03.24 with Phase 1 (#8)
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 #: 2024-1745
Underwood Park Phase 1 Improvements Design Contract
A RESOLUTION TO APPROVE A PROFESSIONAL ARCHITECTURAL SERVICES
AGREEMENT WITH ECOLOGICAL DESIGN GROUP, INC. IN AN AMOUNT NOT TO EXCEED
$262,000.00 FOR DESIGN SERVICES ASSOCIATED WITH PHASE ONE IMPROVEMENTS TO
UNDERWOOD COMMUNITY PARK, TO APPROVE A PROJECT CONTINGENCY IN THE
AMOUNT OF $15,000.00, AND TO APPROVE A BUDGET ADJUSTMENT
WHEREAS, Ecological Design Group was selected through RFQ 22-01, Selection 9, to prepare a
master plan for Underwood Community Park; and
WHEREAS, the master plan has been completed and this contract will provide for construction and bid
documents and construction administration necessary for Phase One improvements at the park.
NOW, THEREFORE, 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 professional architectural services agreement with Ecological Design Group, Inc. in an amount
not to exceed $262,000.00 to provide design and construction administration services for Phase One
improvements to Underwood Community Park, and further approves a project contingency in the
amount of $15,000.00.
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
2024-1745
Item ID
3/5/2024
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
2/14/2024 PARKS & RECREATION (520)
Submitted Date Division / Department
Action Recommendation:
Staff recommends entering into a contract with Ecological Design Group, Inc. to provide design services for Phase
One improvements to Underwood Community Park for a fee not to exceed $262,000.00 and to approve a project
contingency of $15,000.00 and associated Budget Adjustment.
4705.860.7570-5860.02
Account Number
46050.7570
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: RFQ 22-01, Selection 9
Budget Impact:
Parks Projects 2022 Bonds
Fund
Underwood Improvements
Total Amended Budget
Expenses (Actual+Encum)
Available Budget
Item Cost
Budget Adjustment
Remaining Budget
Project Title
$ 10,787,444.00
$ 2,917,306.82
7,870,137.18
$ 262,000.00
$ 277,000.00
e. 7,88-9,137.18
Previous Ordinance or Resolution #
Approval Date:
V20221130
City of Fayetteville, Arkansas - Budget Adjustment (Agenda)
Budget Year Division Adjustment Number
PARKS &RECREATION (520)
/Org2
2024
Requestor: Alan Bearden
BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION:
Staff recommends entering into a contract with Ecological Design Group, Inc. to provide design services for Phase One
improvements to Underwood Community Park for a fee not to exceed $262,000.00 and to approve a project contingency of
$15,000.00 and associated Budget Adjustment.
COUNCIL DATE: 3/5/2024
ITEM ID#: 2024-1745
Nolly Black
217g1202q 70:07 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.2024116
Account Name
4705.860.7570-5860.02
262,000 -
46050
7570 EX
Capital Prof Svcs - Engineering/Architecture
4705.860.7570-5911.99
4705.860.7999-5899.00
15,000 -
(277,000) -
46050
46050
7570 EX
7999 EX
Contingency - Capital Project
Unallocated - Budget
I of 1
AGREEMENT
For
PROFESSIONAL ARCHITECTURAL SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
ECOLOGICAL DESIGN GROUP, INC.
THIS AGREEMENT is made as of March 5 , 2024, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and ECOLOGICAL DESIGN GROUP, INC (hereinafter called EDG).
CITY OF FAYETTEVILLE from time to time requires professional engineering and landscape
architectural services in connection with the evaluation, design, and/or construction supervision of capital
improvement projects. Therefore, CITY OF FAYETTEVILLE and EDG in consideration of their mutual
covenants agree as follows:
EDG shall serve as CITY OF FAYETTEVILLE's professional engineer and landscape architectural
consultant in those assignments to which this Agreement applies, and shall give consultation and advice
to CITY OF FAYETTEVILLE during the performance of EDG's services. All services shall be
performed under the direction of a professional architect/engineer/landscape architect registered in the
State of Arkansas and qualified in the particular field.
SECTION 1- AUTHORIZATION OF SERVICES
1.1 Services on any assignment shall be undertaken only upon written Authorization of CITY OF
FAYETTEVILLE and agreement of EDG.
1.2 Assignments may include services described hereafter as Basic Services or as Additional Services
of EDG.
1.3 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City Council in
advance of the change in scope, costs, fees, or delivery schedule.
SECTION 2 - BASIC SERVICES OF EDG
2.1 Perform professional services in connection with the Project, as hereinafter stated, which shall
include normal engineering, landscape architecture, and surveying services.
2.1.1 The Scope of Services furnished by EDG during the Project is included in the January 31, 2024
Proposal from EDG, attached hereto as Attachment A, and made part of this Agreement.
2.2 EDG shall coordinate their activities and services with the CITY OF FAYETTEVILLE. EDG
and CITY OF FAYETTEVILLE agree that EDG has full responsibility for the services.
2.3 EDG shall coordinate their activities and services so that future phases of work or considered.
Underwood Park Phase One Design Services
SECTION 3 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
3.1 CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of
EDG.
3.1.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
3.1.2 Assist EDG by placing at EDG's disposal all available information pertinent to the
assignment including previous reports and any other data relative thereto.
3.1.3 Assist EDG in obtaining access to property reasonably necessary for EDG to perform its
services under this Agreement.
3.1.4 Examine all studies, reports, sketches, cost opinions, proposals, and other documents
presented by EDG and render in writing decisions pertaining thereto.
3.1.5 The Park Planning Superintendent is the CITY OF FAYETTEVILLE's 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 information,
interpret and define CITY OF FAYETTEVILLE's 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.
3.1.6 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
written comments to EDG in a timely manner.
SECTION 4 - PERIOD OF SERVICE
4.1 Time is of the essence in this agreement and this Agreement will become effective upon the first
written notice by CITY OF FAYETTEVILLE authorizing services hereunder.
4.2 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. EDG 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.
SECTION 5 - PAYMENTS TO EDG
5.1 The maximum not -to -exceed amount authorized for this Agreement is $262,000.00 including
approved expenses. The CITY OF FAYETTEVILLE shall compensate EDG based on the
percent of work completed as described in Attachment A — Scope of Services.
5.2 Statements
5.2.1 Monthly statements 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 EDG's normal billing schedule. Once established, the
billing schedule shall be maintained throughout the duration of the Project. Applications for
payment shall be made in accordance with a format to be developed by EDG 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
Underwood Park Phase One Design Services
2
accomplished. Final payment for professional services shall be made upon CITY OF
FAYETTEVILLE's approval and acceptance with the satisfactory completion of the services
for the Project.
5.3 Payments
5.3.1 All statements are payable upon receipt and due within thirty (30) days. If a portion of
EDG's statement is disputed by CITY OF FAYETTEVILLE, the undisputed portion shall be
paid by CITY OF FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE shall
advise EDG in writing of the basis for any disputed portion of any statement. CITY OF
FAYETTEVILLE will make reasonable effort to pay invoices within 30 days of date the
invoice is approved, however, payment within 30 days is not guaranteed.
5.4 Final Payment
5.4.1 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, EDG 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 EDG to be set forth therein. Unless
otherwise provided in this Agreement or by State law or otherwise expressly agreed to by the
parties to this Agreement, final payment under this Agreement or settlement upon termination
of this Agreement shall not constitute a waiver of CITY OF FAYETTEVILLE's claims
against EDG or his sureties under this Agreement or applicable performance and payment
bonds, if any.
SECTION 6 - GENERAL CONSIDERATIONS
6.1 Insurance
6.1.1 During the course of performance of these services, EDG will maintain (in United States
Dollars) the following minimum insurance coverages:
Type of Coverage
Workers' Compensation
Employers' Liability
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
Professional Liability Insurance
Limits of Liability
Statutory
$500,000 Each Accident
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
$1,000,000 Each Claim
EDG will provide to CITY OF FAYETTEVILLE certificates as evidence of the specified
insurance within ten days of the date of this Agreement and upon each renewal of coverage.
Underwood Park Phase One Design Services
3
6.1.2 CITY OF FAYETTEVILLE and EDG waive all rights against each other and their officers,
directors, agents, or employees for damage covered by property insurance during and after
the completion of EDG's services.
6.2 Professional Responsibility
6.2.1 EDG will exercise reasonable skill, care, and diligence in the performance of EDG's services
and will carry out its responsibilities in accordance with customarily accepted professional
practices. CITY OF FAYETTEVILLE will promptly report to EDG any defects or suspected
defects in EDG's services of which CITY OF FAYETTEVILLE becomes aware, so that
EDG 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
EDG.
6.3 Cost Opinions and Projections
6.3.1 Cost opinions and projections prepared by EDG relating to construction costs and schedules,
operation and maintenance costs, equipment characteristics and performance, and operating
results are based on EDG's staff experience, qualifications, and judgment as a design
professional. Since EDG 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, EDG does not guarantee that actual rates, costs, performance,
schedules, and related items will not vary from cost opinions and projections prepared by
EDG.
6.4 Changes
6.4.1 CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
EDG's services, with an appropriate change in compensation and schedule only after
Fayetteville City Council approval of such proposed changes and, upon execution of a
mutually acceptable amendment or change order signed by the Mayor of the CITY OF
FAYETTEVILLE and the duly authorized officer of EDG.
6.5 Termination
6.5.1 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:
6.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
6.5.1.2 An opportunity for consultation with the terminating party prior to termination.
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0
6.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that EDG is given:
6.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
6.5.2.2 An opportunity for consultation with the terminating party prior to termination.
6.5.3 If termination for default is effected by CITY OF FAYETTEVILLE, an equitable adjustment
in the price provided for in this Agreement shall be made, but
6.5.3.1 No amount shall be allowed for anticipated profit on unperformed services or other work,
6.5.3.2 Any payment due to EDG at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of EDG's default.
6.5.4 If termination for default is effected by EDG, or if termination for convenience is effected 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 EDG for services rendered and expenses incurred prior to the termination, in
addition to termination settlement costs reasonably incurred by EDG relating to commitments
which had become firm prior to the termination.
6.5.5 Upon receipt of a termination action under Paragraphs 6.5.1 or 6.5.2 above, EDG shall:
6.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
6.5.5.2 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 EDG in performing this Agreement, whether completed
or in process.
6.5.6 Upon termination under Paragraphs 6.5.1 or 6.5.2 above CITY OF FAYETTEVILLE may
take over the work and may award another party an agreement to complete the work under
this Agreement.
6.5.7 If, after termination for failure of EDG to fulfill contractual obligations, it is determined that
EDG 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 Paragraph 6.5.4 of this clause.
6.6 Delays
6.6.1 In the event the services of EDG are suspended or delayed by CITY OF FAYETTEVILLE or
by other events beyond EDG's reasonable control, EDG shall be entitled to additional
compensation and time for reasonable costs incurred by EDG in temporarily closing down or
delaying the Project.
Underwood Park Phase One Design Services
5
6.7 Rights and Benefits
6.7.1 EDG's services will be performed solely for the benefit of CITY OF FAYETTEVILLE and
not for the benefit of any other persons or entities.
6.8 Dispute Resolution
6.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all disputes
between CITY OF FAYETTEVILLE and EDG 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
EDG in the performance of this Agreement, and disputes concerning payment.
6.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 6.8.3, but an action is initiated prior to exhaustion
of these procedures, such action shall be stayed, upon application by either party to a court of
proper jurisdiction, until the procedures in Paragraphs 6.8.3 and 6.8.4 have been complied
with.
6.8.3 Notice of Dispute
6.8.3.1 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.
6.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give EDG written Notice at the address listed in Paragraph 6.14
within thirty (30) 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.
6.8.4 Negotiation: Within seven days of receipt of the Notice, the Project Managers for CITY OF
FAYETTEVILLE and EDG 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 EDG 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 days of the written request to resolve the dispute.
6.9 CITY OF FAYETTEVILLE represents that it has sufficient funds or the means of obtaining
funds to remit payment to EDG for services rendered by EDG.
6.10 Publications
6.10.1 Recognizing the importance of professional development on the part of EDG's employees
and the importance of EDG's public relations, EDG may prepare publications, such as
technical papers, articles for periodicals, and press releases, pertaining to EDG'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 EDG CITY
OF FAYETTEVILLE may require deletion of proprietary data or confidential information
Underwood Park Phase One Design Services
from such publications, but otherwise CITY OF FAYETTEVILLE will not unreasonably
withhold approval. The cost of EDG's activities pertaining to any such publication shall be
for EDG's account.
6.11 Indemnification
6.11.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE and EDG from and
against any and all loss where loss is caused or incurred or alleged to be caused or incurred in
whole or in part as a result of the negligence or other actionable fault of the Contractors, or
their employees, agents, Subcontractors, and Suppliers.
6.12 Ownership of Documents
6.12.1 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. EDG may retain reproduced copies of drawings and copies of other
documents.
6.12.2 Engineering documents, computer models, drawings, specifications and other hard copy or
electronic media prepared by EDG as part of the Services shall become the property of CITY
OF FAYETTEVILLE when EDG has been compensated for all Services rendered, provided,
however, that EDG shall have the unrestricted right to their use. EDG 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 EDG. EDG shall provide usable
cad files of survey and layout work. The city shall hold EDG harmless from any use of those
cad files by the city for work not associated with EDG.
6.12.3 Any files delivered in electronic medium may not work on systems and software different
than those with which they were originally produced. EDG 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.
6.13 Notices
6.13.1 Any Notice required under this Agreement will be in writing, addressed to the appropriate
party at the following addresses:
CITY OF FAYETTEVILLE's address:
113 West Mountain Street
Fayetteville, Arkansas 72701
EDG's address:
EDG
120 South Izard Street
Little Rock, AR 72201
6.14 Successor and Assigns
Underwood Park Phase One Design Services
VA
6.14.1 CITY OF FAYETTEVILLE and EDG each binds himself and his successors, executors,
administrators, and assigns to the other party of this Agreement and to the successors,
executors, administrators, and assigns of such other party, in respect to all covenants of this
Agreement; except as above, neither CITY OF FAYETTEVILLE nor EDG shall assign,
sublet, or transfer his interest in the Agreement without the written consent of the other.
6.15 Controlling Law
6.15.1 This Agreement shall be subject to, interpreted and enforced according to the laws of the
State of Arkansas within Washington County without regard to any conflicts of law
provisions.
6.16 Entire Agreement
6.16.1 This Agreement represents the entire Agreement between EDG and CITY OF
FAYETTEVILLE relative to the Scope of Services herein. Since terms contained in
purchase orders do not generally apply to professional services, in the event CITY OF
FAYETTEVILLE issues to EDG a purchase order, no preprinted terms thereon shall become
a part of this Agreement. Said purchase order document, whether or not signed by EDG,
shall be considered as a document for CITY OF FAYETTEVILLE's internal management of
its operations.
SECTION 7 - SPECIAL CONDITIONS
7.1 Additional Responsibilities of EDG
7.1.1 CITY OF FAYETTEVILLE's review, approval, or acceptance of design drawings,
specifications, reports and other services furnished hereunder shall not in any way relieve
EDG of responsibility for the technical adequacy of the work. Neither CITY OF
FAYETTEVILLE's review, approval or acceptance of, nor payment for any of the services
shall be construed as a waiver of any rights under this Agreement or of any cause of action
arising out of the performance of this Agreement.
7.1.2 EDG shall be and shall remain liable, in accordance with applicable law, for all damages to
CITY OF FAYETTEVILLE caused by EDG's negligent performance of any of the services
furnished under this Agreement except for errors, omissions or other deficiencies to the
extent attributable to CITY OF FAYETTEVILLE or CITY OF FAYETTEVILLE-furnished
data.
7.1.3 EDG's obligations under this clause are in addition to EDG'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 EDG for faulty materials, equipment, or work.
7.2 Remedies
7.2.1 Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes
and other matters in question between CITY OF FAYETTEVILLE and EDG arising out of or
relating to this Agreement or the breach thereof will be decided in a court of competent
jurisdiction within Arkansas.
Underwood Park Phase One Design Services
7.3 Audit: Access to Records
7.3.1 EDG 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. EDG shall also maintain the financial information and data used by EDG 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, the State 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. EDG will provide proper facilities for such
access and inspection.
7.3.2 Records under Paragraph 7.3.1 above, shall be maintained and made available during
performance on assisted work under this 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.
7.3.3 This right of access clause (with respect to financial records) applies to:
7.3.3.1 Negotiated prime agreements:
7.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting the
price of any formally advertised, competitively awarded, fixed price agreement:
7.3.3.3 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:
7.3.3.3.1 With respect to record pertaining directly to sub -agreement performance, excluding
any financial records of EDG;
7.3.3.3.2 If there is any indication that fraud, gross abuse or corrupt practices may be involved;
7.3.3.3.3 If the sub -agreement is terminated for default or for convenience.
7.4 Covenant Against Contingent Fees
7.4.1 EDG 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 EDG 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.
Underwood Park Phase One Design Services
C
7.5 Gratuities
7.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that EDG or any of EDG'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, 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 EDG 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.
7.5.2 In the event this Agreement is terminated as provided in Paragraph 7.5.1, CITY OF
FAYETTEVILLE may pursue the same remedies against EDG as it could pursue in the event
of a breach of the Agreement by EDG 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 OF FAYETTEVILLE) which shall be not
less than three nor more than ten times the costs EDG incurs in providing any such gratuities
to any such officer or employee.
7.6 Arkansas Freedom of Information Act
7.6.1 City contracts and documents, including internal documents and documents of subcontractors
and sub -consultants, prepared while performing City contractual work are subject to the
Arkansas Freedom of Information Act (FOIA). If a Freedom of Information Act request is
presented to the CITY OF FAYETTEVILLE, EDG 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 photocopying costs
pursuant to the FOIA may be assessed for this compliance.
IN WITNESS WHEREOF, CITY OF FAYETTEVILLE, ARKANSAS by and through its Mayor, and
EDG, by its authorized officer have made and executed this Agreement as of the day and year first above
written.
CITY;OF F YETTEVILLE, RKANSAS
By:
Mavoneld Jordan
ATTEST:
By:,e'.&o 10PJ!!C
City Clerk Treasurer, Kara
END OF AGREE
Underwood Park Phase One Design Services
ECOLOGICAL DESIGN GROUP, INC.
By: /L-'l A,.-,r, '
Martin Smith - Principal
EDG
ONAL ENGINEERING SERVICES
10
Attachment A - Scope of Services
A0P
January 31, 2024
Ted Jack, PLA, ASLA
Park Planning Superintendent
Parks, Natural Resources and
Cultural Affairs
City of Fayetteville, Arkansas
479.444.3469
tiack@fayetteville-ar.gov
Re: Underwood Park — Phase One — Schematic Design — Construction Administration
Dear Ted,
Please find the following proposal for professional landscape architectural and civil engineering services
regarding the above -mentioned project for the City of Fayetteville. The scope of work shall be based on
the master plan, park staff input, and phase one exhibit/program as attached.
SCOPE OF SERVICES
The purpose of the services proposed herein is to provide Schematic Design, Design Development
Documents, Construction Documents, Bid Services, and Construction Administration. In addition, the
following services are included as allowances for each: Existing Conditions & Boundary Survey (Phase One
Only), Wetland Delineation (Up to Entire Site) + USACE permitting (If Required), Hec-ras modeling as
required by the City of Fayetteville to assure no modifications to the floodplain. Basic services for phase
one shall include but not be limited to: Entry drive parking and lighting, accessible sidewalks, Denali CXT
Restroom, utility infrastructure (Water, Sewer, Electric), Earthwork and Storm Drainage, Landscape and
Irrigation design, Pickleball & Basketball Courts, playground, Signage, Site furnishings, Maintenance and
Improvements for existing infrastructure, Cost Estimating, Specifications, Management Plan.
The playground will be a major feature of the design and is to follow a "natural theme" and be different
than other COF Community Park playgrounds. The playground shall meet relevant playground standards.
BASIC SERVICES Landscape Architecture & Civil Engineering
TASK A: Schematic Design (30 business days + 2 weeks of city review)
1. Virtual coordination meetings as required, including up to (2) design/owner coordination
meetings in Fayetteville Arkansas.
2. Coordination with all sub -consultants regarding their scope of work.
Ecological Design Group, Inc. 1 120 South Izard Street, Little Rock, AR 72201 1 www.ecologicaldg.com
3. Prepare Schematic Design Drawings that address all phase one program elements, indicating the
expected materials of major site elements and provide information on major
equipment/furnishings.
4. Schematic Design Submission for review (plan set + illustrations/views).
5. Site Plan, Grading and Drainage Plan, Utility Plan, Planting Plan (Note: Utility Plan will encompass
identifying likely routing for utility infrastructure for future phases.)
6. Opinion of probable cost.
7. Schedule: Schematic Design shall be completed 30 business days after receipt of an acceptable
existing conditions and boundary survey. City review shall include 10 business days
8. The Schematic Design Package shall be delivered to the COF for review and
comments/modifications. The City shall provide their comments in writing for EDG to incorporate
into the next phase of work. Attendance of a city preliminary design review with planning
departments shall be included at the conclusion of this task.
TASK B: Design Development Drawings (60 business days + 2 weeks of city review)
Based on the approved Schematic Design Drawings and Client Comments, EDG will perform the following
design development tasks:
1. Virtual coordination meetings as required, including up to (2) design/owner coordination
meetings in Fayetteville Arkansas.
2. Prepare landscape architectural and civil engineering design development documents including
all phase one elements incorporating city comments/modifications. Provide a list of all major
materials such as surfacing, site furnishings, playground equipment, and pavilions. Cutsheets shall
be provided for all manufactured materials/furnishings.
3. Prepare preliminary sitework and utility detail sheets for all landscape and civil engineering
elements. Prepare an estimate of cut and fill on the site with specifications regarding imported
materials.
4. Prepare a planting plan.
5. Coordination with local utility providers, including regulatory agencies as required for utility
infrastructure improvements.
6. Coordinate with subconsultants: structural engineer, electrical engineer, and other sub -
consultants including, site lighting, CXT vendor, and hec-ras modeling.
7. Prepare outline of site related technical specifications for coordination with other disciplines.
8. Design Development Drawing package submission.
9. Update the Opinion of Probable Cost with additional details gained in this task, including
quantities and unit cost for each.
TASK D: Construction Documents (90 business days + 4 weeks of city review *nclud'e^^ C mc-6'
Based on the approved Design Development Design Drawings and Client Comments, EDG will perform
the following construction document tasks:
1. Virtual coordination meetings as required, including up to (2) design/owner coordination
meetings in Fayetteville, Arkansas.
Ecological Design Group, Inc. 1 120 South Izard Street, Little Rock, AR 72201 1 www.ecologicaldg.com
2. Prepare landscape architectural and civil engineering construction documents including all phase
one elements.
3. Prepare construction site work details including sections, elevations, and plan details.
4. Prepare a planting plan (including soil design, planting details and irrigation plan).
5. Provide 50% and 90% site construction drawings for review including, but not limited to the
following:
a. Site Demolition Plans
b. Site Erosion Control and Tree Protection Plans
c. Site Layout Plans
d. Site Utility Plans
e. Site Electrical Plan
f. Site Grading and Drainage Plans including cut and fill related to the floodplain.
• Stormwater control plans and calculations.
g. Sitework Details
h. Planting Plan, Soil Design, Plant Legend, Details & Notes
i. Irrigation Plan & Details
j. Site Furnishings and Signage Schedule
k. CXT Denali Restroom plans
6. Provide stamped site construction drawings including, but not limited to the above -mentioned
drawings.
7. Provide technical specifications for phase one elements at 50% & 90% completion.
8. Submit Construction Documents to the City of Fayetteville for Grading and utility Permits Review,
address city comments, and resubmit drawings, as necessary.
9. Prepare a draft bid tab including deductive alternatives.
TASK E: Large Scale Development Submission (Completed within Task D Timeline)
EDG will perform the following tasks to seek approval from the City of Fayetteville and other jurisdictional
agencies to begin construction of the project.
1. Attend pre -submittal review meeting with the City of Fayetteville staff.
2. Submit 50% Construction Drawings as prepared during Task D to the City of Fayetteville in
accordance with Large Site Improvement Plan approval process outlined in the City's subdivision
code of ordinances. This includes the preparation of the following additional information beyond
the construction drawings prepared in Task D:
a. Stamped Drainage Report and associated calculations.
b. Preparation of the Large Site Improvement Application and associated documentation for
submittal.
c. Additional drawings required by the City that are not included in the Construction
Drawings.
3. Revise and edit the drawings and specifications as required based on comments received by the
City of Fayetteville from the Planning Department.
4. Submit revised drawings and specifications to the City of Fayetteville Planning Department.
5. Assist the Client in preparation of the building permit application; and
Ecological Design Group, Inc. 1 120 South Izard Street, Little Rock, AR 72201 1 www.ecologicaldg.com
6. Submit the Construction Drawings and specifications for the proposed water and sewer system
improvements along with design calculations to the Arkansas Department of Health (ADH) for
review and approval.
TASK F: Bidding and Negotiations
EDG to assist the City of Fayetteville in preparation of the Bid Package and Bidding of the Project, leading
a pre -bid meeting, answering bidder's questions, and any work to support addendums if needed.
TASK G: Construction Administration + Project Inspections (Approximately 12 months)
Perform Construction Administration including:
1. Organize and lead a pre -construction meeting with COF and Contractor/Subcontractor staff.
2. Monthly OAC meetings to review construction progress including, but not limited to:
3. RFI Tracking and Responses.
4. Submittal Log Schedule.
5. Submittal Reviews.
6. Shop Drawing Reviews.
7. Pay Application Review; and
a. Site visits as required to confirm compliance with construction documents, resolve infield
conflicts with design intent, photo documentation of all elements of construction.
b. Perform required inspections of public infrastructure scope as required by the City of
Fayetteville as role of Engineer of Record (EOR). The FOR is required to schedule all
inspections with the city engineering department and have a representative at said
inspections.
c. Prepare as -built documents using as -built data provided by the contractor and surveyor
as required by the City of Fayetteville to obtain a Certificate of Occupancy.
d. Schedule and Facilitate the Site Final Inspection with the City of Fayetteville.
e. Prepare Civil Engineering as -built documents as required by the City of Fayetteville to
obtain a Certificate of Occupancy.
REMUNERATION Landscape Architecture + Civil Engineering Basic Services
We propose to perform Basic Services work described above based on a lump sum fee as indicated below.
The fee is based on 8% of the budgeted construction cost of $2,400,000 and shall be adjusted accordingly
if increased or decreased.
TASK A: Schematic Design $19,200.00
TASK B: Design Development Drawings $42,000.00
TASK C: Construction Documents $74,800.00
TASK D: Large Scale Development Submission $12,600.00
TASK E: Bidding and Negotiations $ 2,400.00
TASK D: Construction Administration + Project Inspections $41,000.00
Total LA + CIVIL Basic Services $192,000.00
Ecological Design Group, Inc. 1 120 South Izard Street, Little Rock, AR 72201 1 www.ecologicaldg.com
The following are allowances for documentation required for preparation of construction documents
and/or permitting required for construction of the project. Sub consultant invoices will be issued for
reimbursement and not to exceed the following:
ALLOWANCE NO.1: Existing Conditions and Boundary Survey $20,000.00
ALLOWANCE NO.2: Wetland Delineation + USACE Permit if Required $15,000.00
ALLOWANCE NO.3: Hec-Ras Modeling to assure no impact $25,000.00
ALLOWANCE NOA: Geotechnical Report $ 5,000.00
REIMBURSABLE EXPENSES: See Item A below $ 5.000.00
Allowance Total Not to Exceed $70,000.00
Total LA + Civil Basic Services + Allowances not to exceed $262,000.00
A. Reimbursable Expenses:
The Client shall, in addition to payment of the fee, reimburse the Consultant for
expenditures made for such items as, surveys, drawings and reports necessary to conduct
the work and not otherwise furnished by the Client; computer plots; reproductions; prints;
postage; mileage (IRS standard mileage rate) Reimbursable expenses will be billed at 1.0
times direct cost.
We thank you for the opportunity to submit this proposal and look forward to working with you on this
exciting project. Your signature in the space provided on this proposal, returned to us, will indicate
Agreement and permit us to proceed with the work as directed.
Respectfully submitted,
ECOLOGICAL DESIGN GROUP,INC.
Martin L. Smith, PLA Brahm Driver, P.E.
End of Scope of Services.
See City of Fayetteville Contract for additional information.
Ecological Design Group, Inc. 1 120 South Izard Street, Little Rock, AR 72201 1 www.ecologicaldg.com
Attachment B
Underwood Community Park Phase 1 Exhibit/Program
Park Planning - 1/31/2024
Note: The program elements defined below are preliminary and may need to be changed based
on information
discovered in the design process. The preliminary cost estimates will be
refined in the design process and are not
meant to set budgets for each line item, but meant to provide a rough estimate of how to prioritize the design work.
Item
QtV
Unit
Costs
1 Mobilization, Bonds, Insurance
1 LS
$75,000
$75,000
2 Entry Drive and Parking
48,000 SF
$10
$480,000
3 Drive and Parking Lighting
14 Pole
$4,000
$56,000
4 Parking Stormwater Features/Landscaping
1 LS
$125,000
$125,000
5 Dean to Hub Area Sidewalks
1,480 LF
$75
$111,000
6 Walk along Dean Solomon
225 LF
$110
$24,750
7 CXT Denali Restroom & Sewer
1 LS
$145,000
$145,000
8 Electrical Infrastructure
1 LS
$35,000
$35,000
9 Berms / Grading
1 LS
$50,000
$50,000
10 Drainage
1 LS
$110,000
$110,000
11 Hub Entry area enhancements / sitting
1 LS
$20,750
$20,750
12 Pickleball/Basketball (no lights)
11,200 sf
$25
$280,000
13 Playground
1 LS
$500,000
$500,000
14 Picnic Area with Small Pavilion (s) (-16'x24')
1 LS
$125,000
$125,000
15 Trees/Landscaping (not parking)
1 LS
$35,000
$35,000
16 Cameras/IT
1 LS
$15,000
$15,000
17 Phase One Open Space (Mowing)
1 LS
$2,500
$2,500
18 Signage
1 LS
$20,000
$20,000
19 Benches/Trash Cans
1 LS
$30,000
$30,000
20 Work on existing trails/bridges
1 LS
$110,000
$110,000
21 Miscellaneous
1 LS
$50,000
$50,000
Estimated Construction Costs $2,400,000
Planning/Design/CA (not to exceed)
$262,000
Estimated Project Costs $2,662,000
NWALT
1 9
3
Clabber Creek I
r
park boundary
T , 14 /
3 _
• ,4
y0
a�
��eaQ •
�`` • .
� reconnected
5 creek
meander
a
• 8 0000
restored
Wetland A
5 wet Prairie
19
13
I
y � ,
I
29 3 rr
1 " = 300'
C1a�_er creek I
Mutli-Use
Trail
1
26 ( ��
1 �• 6 36 sPa�es -
j 15 17, t NWALT
11 66 spares
2 wet prairie
10 21 _
3
0 .7 �
` 30
F e
wetland
- 1
9
9
1 20 _ F'
9
12
4
/ 17
24 �� 6
Y
Q
w
expanded
lake
18
3
�5
16
restored
wetland
5
28
1
.
UNDERWOOD PARK
16
VISION PLAN PROGRAM
1
lature Trails
2
Alayground
q
Walking /Jogging Paths
4
Open Multi -Use Green Space
ek WlEcological
Restoration Areas
abberCr
6
trance + Parking
7
ckleball Courts
Aletland
g
11 Boardwalk
g
eek Play Access
10
lashpad
vilion + Rest Rooms (RR)
*11,Do
g Park
Mishing
Piers
bisc
14
Golf (Partial)
15Entry
Plaza + Picnic Area
16
Kayak + Paddle Board Access
17
lity Planted + Cared for Gardens
(111janlarged
Pond
1g
Bird Watching Wildlife Blind
o
Art Infused Bridge
21
Food Truck Court
Hammock Pole Area
23
Basketball Court
4
Performance Space + RR
5
ake Deck
26
uffer Area
27
Possible Lake Access
g
Historic Interpretation Area
9
ossible Access Points
o
fitting / Social Area
City of Fayetteville Staff Review Form
2025-0626
Item ID
N/A
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Melissa Evans 8/5/2025 PARKS & RECREATION (520)
Submitted By Submitted Date Division / Department
Action Recommendation:
Staff recommends approving Change Order #2, the Contract Amendment from Ecological Design Group, Inc., to
add design services necessary to revise the stormwater treatment design at Underwood Park. This additional
design work for a lump sum fee of $4,025 will be funded with a portion of the project's (Project # 46050-7570)
design contingency.
Budget Impact:
4705.860.7570-5860.02
Parks Projects 2022 Bonds
Account Number Fund
46050.7570 Park Improvements (2019/2022/2024 Bonds),
Underwood Improvements
Project Number
Budgeted Item? Yes
Does item have a direct cost? Yes
Is a Budget Adjustment attached? No
Total Amended Budget
Expenses (Actual+Encum)
Available Budget
Item Cost
Budget Adjustment
Remaining Budget
Project Title
$ 3,966,780.00
$ 72,848.97
3,893,931.03
$ 4,025.00
3,889,906.03
V20221130
Purchase Order Number: 2024-00000402 Previous Ordinance or Resolution # Res. # 96-24
Change Order Number:
Original Contract Number:
Comments:
#2
2024-00000021
Approval Date:
8/14/2025
Submitted Date
Yes
3,893,931.03$
21,325.00$
V20221130
Budgeted Item?
Does item have a direct cost?
Is a Budget Adjustment attached?
Total Amended Budget
Expenses (Actual+Encum)
Available Budget
Item Cost
Budget Adjustment
Remaining Budget
3,966,780.00$
72,848.97$
Yes
Yes 21,325.00$
3,893,931.03$
46050.7570
Project Number
Budget Impact:
Park Projects (2019/2022/2024 Bonds),
Underwood Improvements
Fund
Parks Projects 2022 Bonds4705.860.7570-5860.02
Account Number
Project Title
City of Fayetteville Staff Review Form
2025-0673
Item ID
N/A
City Council Meeting Date - Agenda Item Only
Staff recommends approving the Contract from Olsson, Inc. for professional services necessary for Geotechnical
Special Inspections and Construction Materials Engineering and Testing as required for project construction for a
fee not to exceed $21,325.00.
N/A for Non-Agenda Item
Action Recommendation:
Submitted By
Melissa Evans PARKS & RECREATION (520)
Division / Department
Comments:
Purchase Order Number:
Change Order Number:
Previous Ordinance or Resolution #Res. 162-25
Approval Date:
Original Contract Number:
TO: Mayor Molly Rawn
THRU: Keith Macedo, Interim Chief of Staff
Alison Jumper, Director Parks, Natural Resources and Cultural Affairs
Ted Jack, Park Planning Superintendent
FROM: Melissa Evans, Park Planner II
DATE: August 14, 2025
SUBJECT: Underwood Community Park Geotech Contract
RECOMMENDATION:
Staff recommends approving the Contract with Olsson, Inc. for professional services necessary
for Geotechnical Special Inspections and Construction Materials Engineering and Testing as
required for project construction for a fee not to exceed $21,325.00.
BACKGROUND:
Underwood Park has been designed, bid and will be ready for construction soon. Geotechnical
inspections and construction materials testing is standard during construction to ensure
installation is correct. Olsson is one of the three testing companies approved by Purchasing.
DISCUSSION:
Geotechnical inspections and construction materials testing will occur during different times in
the construction process. The contract includes a standard amount of testing for the various
proposed elements on site like the parking lot and pickleball courts. If less testing is used than
what is in the contract, then that portion of the estimated cost will not be billed.
BUDGET/STAFF IMPACT:
The budget for this Geotech work will be from Unallocated – Budget for 2022 Bonds.
GLACCOUNT PROJECT AMOUNT Notes:
4705.860.7570-5860.02 46050.7570 $21,325.00
Attachments:
1. SRF, Contract and Budget Adjustment Form
550 E. St. Louis Street / Springfield, MO 65806
O 417.890.8802 / olsson.com
LETTER AGREEMENT FOR
PROFESSIONAL SERVICES
8/20/2025
City of Fayetteville, AR
Attn: Melissa Evans
113 W Mountain St
Fayetteville, AR 72701
Re: AGREEMENT FOR PROFESSIONAL SERVICES
Special Inspections and Construction Materials Engineering and Testing
Underwood Park Pickleball Improvements
Fayetteville, Arkansas
Dear Melissa Evans:
It is our understanding that City of Fayetteville, AR (“Client”) requests Olsson (“Olsson”) perform
the following services pursuant to the terms of this Letter Agreement, Olsson’s General Provisions
and any exhibits attached thereto (hereinafter “the Agreement”) for the Project.
Olsson has acquainted itself with the information provided by Client relative to the Project and
based upon such information offers to provide the services described below for the Project. Client
warrants that it is either the legal owner of the property to be improved by this Project or that Client
is acting as the duly authorized agent of the legal owner of such property. Client acknowledges
that it has reviewed the General Provisions (and any exhibits attached thereto), which are
expressly made a part of and incorporated into this Agreement by this reference. In the event of
any conflict or inconsistency between this Agreement and the General Provisions regarding the
services to be performed by Olsson, the requirements of this Agreement shall take precedence.
Olsson shall provide the following services to Client (“Scope of Services”) for the Project:
Special Inspections and Construction Materials Testing as more specifically described in
“Scope of Services” attached hereto.
Should Client request work in addition to the Scope of Services (Optional Additional Services),
Olsson shall invoice Client for such services at the standard hourly billing labor rate charged for
those employees actually performing the work, plus reimbursable expenses if any. Olsson shall
not commence work on Optional Additional Services without Client’s prior written approval.
Olsson agrees to provide all of its services in a timely, competent, and professional manner in
accordance with applicable standards of care for projects of similar geographic location, quality,
and scope.
Compensation
Client shall pay to Olsson for the performance of the Scope of Services in accordance with the
Unit Rate Sheet attached to this Letter Agreement. Olsson’s services will be completed on a time
and materials, unit rate basis. Olsson shall submit invoices on a monthly basis and payment is
due within 30 calendar days of invoice date.
550 E. St. Louis Street / Springfield, MO 65806
O 417.890.8802 / olsson.com
Olsson has provided the proposed cost for the Special Inspections and Construction Materials
Testing as more specifically described in the attached Scope of Services.
Olsson’s Scope of Services will be provided on a time-and-expense basis not to exceed
$21,325.00.
Terms and Conditions of Service
Client understands that Olsson is not responsible for any previous testing, observations, and
inspections performed by others for this project.
We have discussed with you the risks, rewards and benefits of the Project, the Scope of Services,
and our fees for such services and the Agreement represents the entire understanding between
Client and Olsson with respect to the Project. The Agreement may only be modified in writing
signed by both parties.
If this Agreement satisfactorily sets forth your understanding of our agreement, please sign in the
space provided below. Retain a copy for your files and return an executed original to Olsson.
This proposal will be open for acceptance for a period of 60 days from the date set forth above,
unless changed by us in writing.
Olsson, Inc.
By _____________________________ By ______________________________
Kyle Bennett CMT Group Leader Nick Calton Senior Team Leader
By signing below, you acknowledge that you have full authority to bind Client to the terms of the
Agreement. If you accept the terms set forth herein, please sign:
City of Fayetteville, AR
By _____________________________
Name _________________________
Title ____________________________ Dated: _________________________
Attachments
Scope of Services
Unit Rate Sheet
General Provision
Molly Rawn
Mayor
Page 1 of 3
Scope of Services
This Scope of Services is hereby attached to and made a part of the Letter Agreement for
Professional Services dated 8/20/2025 between City of Fayetteville, AR (“Client”) and Olsson,
Inc. (“Olsson”) providing for professional services. Olsson’s Scope of Services for the Agreement
is indicated below.
Project Description and Location
Project Description: Underwood Park Pickleball Improvements
Project Location: Fayetteville, Arkansas
Scope of Services
This proposal is based on a review of project information provided by Melissa Evans (City of
Fayetteville, AR) via email on 06/2/2025, as well as an overall site plan dated 02/20/2025. Should
complete drawings or a request for additional services be made, we should be allowed to revise
our proposal as needed to better suit project requirements.
Construction testing services have been requested for fill placement, reinforced concrete, and
pavement subgrades, and asphaltic concrete pavements for the proposed improvements. We
propose to provide our testing services in the following manner:
Fill Placement/Utility Trench Backfill – Prior to fill placement, subgrades should be
stripped of vegetation, topsoil, and any other deleterious material. Representatives of
Olsson will observe the stability and moisture content of the subgrades. The subgrades
should be proofrolled with a fully loaded tandem axle dump truck.
Samples of materials proposed for use as structural fill and/or utility trench backfill will be
obtained for laboratory testing. Laboratory tests, including standard Proctors and
Atterberg limits tests, will be performed to classify and determine physical properties of
the proposed fill/backfill materials. Olsson will observe and test structural fill placed within
the footprint of the proposed building and surrounding pavement areas.
Reinforced Concrete - Olsson’s field technician will observe placement of reinforcing
steel in all concrete elements of the pickleball courts. Field tests, including slump, air
entrainment. and temperature, will be performed on samples of concrete obtained from
these structures. Cylinders will be cast from the concrete used in the construction of the
structures and pavements for compressive strength testing.
Pavement Subgrades – Olsson’s field personnel will evaluate pavement subgrades with
respect to stability and moisture content prior to construction of the on-grade slabs and or
pavements. Subgrades should be proofrolled with a fully loaded tandem axle dump truck.
The general contractor superintendent should schedule subgrade evaluations within 48-
hours of paving or following any significant weather event that could affect the
performance of the pavement subgrade. Subgrades should be reobserved if weather
conditions change or if construction of the on-grade slab and/or pavements is delayed
more than 48-hours after initial observation.
Page 2 of 3
Asphaltic Concrete Pavements – Field density tests will be performed in the base and
surface courses of asphaltic concrete pavements. To evaluate thickness and results of
the field density tests, coring will be performed on the full depth asphalt.
Reporting - Olsson’s field professionals will prepare typed field reports summarizing each
day's field observations, presenting test results, and detailing items not in compliance with
the project drawings and/or specifications. Draft copies of the field reports will be provided
daily to the designated field representative if requested.
Field reports will be reviewed by our project engineer and if required summarized in bi-
weekly letters transmitted to the Client, Architect, Structural Engineer, General Contractor
and Building Official. Olsson is not responsible for the Contractor’s means or methods
and does not have the obligation or authority to stop Contractor’s work. Olsson’s
responsibility as special inspector is to report our field observations and test results to the
Contractor and Client as provided herein.
Following completion of the project, if requested Olsson will prepare a final summary report
stating its opinion with regard to whether the portions of the work that were observed,
inspected and/or tested were in compliance with the project specifications.
Safety – It is the responsibility of the general contractor or their subcontractors to provide
safe access to work requiring observation or testing by the special inspector or tester. It is
also the responsibility of the general contractor or their subcontractors to provide OSHA
compliant barriers or barricades around excavations greater than 6 feet in depth. In
instances where barriers or barricades are not provided or work requiring observation or
testing must be performed while within the area protected by barriers or barricades, the
contractor shall provide and install an anchor point that meets the OSHA standard for fall
protection for use by the special inspector or tester. The anchorage point shall be provided
near excavations 6 feet or greater in depth where observation or testing is required. The
anchorage point cannot be a piece of equipment that can be moved (like a drill rig or piece
of earth working equipment). These anchorage points may need to be moved by the
contractor when work requiring observation or testing is needed in other locations.
When fall protection is needed for Olsson personnel to perform their work, we will supply our
personnel with harnesses and lanyards which can be tied off to contractor-provided
anchorage points. If the contactor cannot supply an anchorage point for Olsson personnel,
we will work with the general contractor to come up with a solution possibly including Olsson
providing our own anchorage, which may cause a delay to obtain the equipment needed and
will result in additional charges to Olsson’s Client.
Exclusions – Observation and testing relating to shop inspection for the fabrication of the
structural steel framing members and mechanical inspections of field erected members
(plumb or other dimensional characteristics) has not been included in this cost estimate.
Often, the Building Official will waive the special inspection requirement for shop
inspection of structural steel if the fabrication shop is certified and can provide proof of
certification on their signed company letterhead. If it is determined that these items are
required for special inspection, we would be willing to review the applicable project plans
and specifications to provide an additional estimate to provide these services.
SWPPP inspections are excluded, these will be performed by others.
Hot Mix sampling of asphaltic concrete pavement is omitted. Testing will be limited to field
densities, thickness, and bulk specific gravity of cores.
Page 3 of 3
Olsson is committed to providing quality service to its clients, commensurate with their
wants, needs and desired level of risk. If a portion of this proposal does not meet your
needs, or if those needs have changed, Olsson stands ready to consider appropriate
modifications, subject to the standards of care to which we adhere as professionals. If you
have any questions or concerns regarding this scope of work, please contact Kyle Bennett
at 417.818.7594 or at kbennett@olsson.com. We look forward to hearing from and
working with you and your firm on this project.
Scope of Work and Estimated Cost
Underwood Park
Fayetteville, Arkansas
Earthwork
6 Hrs Sr. Technician - Sampling/Proofroll @ $85.00 /hour $510.00
15 Hrs Technician - Fill Densities @ $85.00 /hour $1,275.00
15 Hrs Technician - Agg. Base Densities @ $75.00 /hour $1,125.00
2 Proctor - Standard @ $220.00 /each $440.00
2 Oversize Particle Correction @ $125.00 /each $250.00
2 Material Passing No. 200 Sieve @ $85.00 /each $170.00
2 Atterberg Limits @ $125.00 /each $250.00
12 Standard Field Equipment @ $25.00 /each $300.00
12 Trips @ $40.00 /trip $480.00
Reinforced Concrete
30 Hrs Sr. Technician - Subgrades Compaction @ $85.00 /hour $2,550.00
12 Hrs Technician - Pickleball Courts @ $85.00 /hour $1,020.00
3 Hrs Technician - Curb @ $85.00 /hour $255.00
45 Hrs Technician - Sidewalk/Pavement/Pads @ $85.00 /hour $3,825.00
104 Compression Test - Concrete @ $25.00 /each $2,600.00
10 Standard Field Equipment @ $25.00 /each $250.00
30 Trips @ $40.00 /trip $1,200.00
Asphaltic Concrete Pavement
10 Hrs Technician - Compaction @ $75.00 /hour $750.00
5 Hrs Technician - Coring/Sampling @ $75.00 /hour $375.00
6 Bulk Specific Gravity of Pavement Cores (1pt) $70.00 /each $420.00
1 Coring Equipment @ $300.00 /day $300.00
2 Standard Field Equipment @ $25.00 /each $50.00
1 Coring Trips @ $160.00 /trip $160.00
3 Trips @ $40.00 /trip $120.00
Subtotal $18,675.00
Project Engineering and Administration
8 Hrs Project Manager/Engineer $160.00 /hour $1,280.00
10 Hrs Field Manager @ $100.00 /hour $1,000.00
1 Hrs Senior Team Leader @ $220.00 /hour $220.00
2 Hrs Project Administration @ $75.00 /hour $150.00
Total $21,325.00
2025 Field Operations Services
Unit Rate Schedule
Special Inspections and Construction Materials Testing Services
Testing Services (3-Hour Minimum)
Field Technician ................................................................................................Hour $75.00
Senior Technician ..............................................................................................Hour $85.00
Steel Technician ................................................................................................Hour $105.00
Field Manager ....................................................................................................Hour $100.00
Project Manager / Project Engineer ...................................................................Hour $160.00
Senior Project Manager / Senior Engineer .........................................................Hour $220.00
Administrative Coordinator.................................................................................Hour $75.00
Mileage ..............................................................................................................Mile $0.85
Laboratory Testing Services
Aggregate Testing
Abrasion - LA Machine ......................................................................................Each $500.00
Atterberg Limit (Plasticity Index) .......................................................................Each $125.00
Bulk Density (Unit Weight) and Voids ...............................................................Each $110.00
Deleterious - Clay Lumps and Friable Particles ................................................Each $190.00
Deleterious - Flat & Elongated Particles ............................................................Each $375.00
Deleterious - Lightweight Particles ....................................................................Each $230.00
Deleterious - Organic Impurities ........................................................................Each $140.00
Material Finer than No. 200 Sieve .....................................................................Each $85.00
Minimum & Maximum Index Density (Vibratory Table) ......................................Each $260.00
Moisture Content ..............................................................................................Each $21.00
Oversize Particle Correction .............................................................................Each $125.00
Particle Size (Gradation) - Sieve Analysis <3/4" ...............................................Each $135.00
Particle Size (Gradation) - Sieve Analysis >3/4" ...............................................Each $220.00
Percent Fractured Particles in Coarse Aggregate .............................................Each $280.00
Proctor - Modified .............................................................................................Each $260.00
Proctor - Standard ............................................................................................Each $220.00
Sand Equivalent of Fine Aggregate ..................................................................Each $245.00
Soundness Aggregates (Sodium or Magnesium) ...............................................Each $305.00
Specific Gravity of Aggregate Coarse or Fine Aggregate ...................................Each $200.00
Uncompacted Void Content of Fine Aggregate ..................................................Each $80.00
Asphalt Testing
Asphalt Binder Content by Ignition .....................................................................Each $150.00
Gradation of Extracted Aggregates (Includes Binder by Ignition) .......................Each $200.00
Bulk Specific Gravity/ Pavement Cores (1pt) .....................................................Each $70.00
Marshall Density (3pt) ........................................................................................Each $240.00
Marshall Stability and Flow (3pt) ........................................................................Each $350.00
Percent Air Voids in Compacted Paving Mix ......................................................Each $45.00
Preparation & Density of Superpave Gyratory Compaction Specimens (2pt) .....Each $320.00
Theoretical Maximum Specific Gravity (Rice) (Gmm) .........................................Each $155.00
Cement, Concrete, & Masonry Testing
Chloride Ion .......................................................................................................Each $200.00
Compressive Strength – Block or Block Prism ...................................................Each $230.00
Compressive Strength - Concrete Cores ...........................................................Each $95.00
Compressive Strength - Cube (Grout & Mortar) .................................................Each $45.00
Compressive Strength - Cylinders .....................................................................Each $25.00
Density, Absorption & Voids of Hardened Concrete ...........................................Each $630.00
Flexural Strength of Concrete ............................................................................Each $75.00
Length Change of Hardened Hydraulic-Cement Mortar and Concrete ...............Each $400.00
Measuring Thickness of Concrete Elements (Drilled Cores) ..............................Each $70.00
Potential Alkali Silica Reactivity (ASR) ...............................................................Each $830.00
Equipment
Core Machine/Sampling ...................................................................................Day $300.00
Dynamic Cone Penetrometer (DCP) .................................................................Day $200.00
Electrical Resistivity - Field (AEMC Gauge) ......................................................Day $100.00
Floor Flatness Equipment .................................................................................Day $300.00
Relative Humidity Probe/Sensor .......................................................................Each $80.00
Settlement Monitoring Plate ..............................................................................Each $300.00
Standard Field Equipment ................................................................................Each $25.00
Vapor Emission Test Kit ...................................................................................Each $60.00
Soil Testing
Atterberg Limits (Plasticity Index) ......................................................................Each $125.00
CBR Laboratory Compacted (3pt) .....................................................................Each $630.00
CBR Laboratory Compacted (1pt) .....................................................................Each $230.00
Density (Wet/Dry) .............................................................................................Each $30.00
Direct Shear Test of Soils (Consolidated Drained) (3pt) ....................................Each $1,600.00
Dispersion - Crumb ...........................................................................................Each $95.00
Dispersion - Pinhole ..........................................................................................Each $190.00
Material Finer than No. 200 Sieve .....................................................................Each $85.00
Moisture Content ..............................................................................................Each $21.00
Moisture Content - Microwave ..........................................................................Each $50.00
One-Dimensional Consolidation Test ................................................................Each $440.00
Organic Content - Soils .....................................................................................Each $105.00
Oversize Particle Correction .............................................................................Each $125.00
Particle Size (Gradation) - Hydrometer .............................................................Each $250.00
Particle Size (Gradation) - Sieve Analysis ..........................................................Each $135.00
Permeability - Flexible Wall Permeameter (Intact) ............................................Each $550.00
Permeability - Flexible Wall Permeameter (Remold) ..........................................Each $650.00
Proctor - Modified .............................................................................................Each $260.00
Proctor - Modified w/Additive ............................................................................Each $340.00
Proctor - Standard ............................................................................................Each $220.00
Proctor - Standard w/Chem Additive .................................................................Each $290.00
Swell or Collapse (One Dimensional) ................................................................Each $315.00
Triaxial Compression – Consolidated Drained (Intact) ......................................Each $1,730.00
Triaxial Compression – Consolidated Drained (Remold) ....................................Each $1,930.00
Triaxial Compression – Consolidated Undrained (Intact) ..................................Each $1,575.00
Triaxial Compression – Consolidated Undrained (Remold) ................................Each $1,775.00
Triaxial Compression – Unconsolidated Undrained ...........................................Each $180.00
Unconfined Compressive Strength - Intact Rock ...............................................Each $125.00
Unconfined Compressive Strength - Soils .........................................................Each $85.00
Sprayed Fire Resistive Materials (SFRM)
Adhesion of SFRM to Structural Members (Field) ..............................................Each $25.00
Thickness and Density of SFRM to Structural Members ....................................Each $90.00
General Terms and Conditions
1. These Unit Fees are in effect until January 1, 2026. Services and fees not listed above will
be quoted upon request.
2. All services charged are portal-to-portal.
3. Services provided on Saturday, Sunday, Holidays, or in excess of 8-hours/day will be charged
at 1.5 times the unit fee.
4. Services provided before 6:00 a.m. and after 6:00 p.m. will be charged at 1.5 times the unit fee.
5. Mileage Rate subject to change based on Federal and IRS rate changes.
6. Subcontracted services and expenses will be invoiced at our cost plus 20%
7. Project Manager time will be included for project coordination and report review.
8. Per Diem will be billed at actual cost + 15% unless otherwise specified.
Page 1 of 8
GENERAL PROVISIONS
These General Provisions are attached to and made a part of
the respective Letter Agreement or Master Agreement, dated
August 20, 2025, between City of Fayetteville, AR (“Client”) and
Olsson, Inc. (“Olsson”) for professional services in connection
with the project or projects arising under such Letter Agreement
or Master Agreement (the “Project(s)”).
As used herein, the term "this Agreement" refers to these
General Provisions, the applicable Letter Agreement or Master
Agreement, and any other exhibits or attachments thereto as if
they were part of one and the same document.
SECTION 1—OLSSON’S SCOPE OF SERVICES
Olsson’s scope of services for the Project(s) is set forth in the
applicable Letter Agreement or Master Agreement (“Scope of
Services”).
SECTION 2—ADDITIONAL SERVICES
2.1 Unless otherwise expressly included, Scope of
Services does not include the categories of additional services
set forth in Sections 2.2 and 2.3.
2.2 If Client and Olsson mutually agree for Olsson to
perform any optional additional services as set forth in this
Section 2.2 (“Optional Additional Services”), Client will provide
written approval of the agreed-upon Optional Additional
Services, and Olsson shall perform or obtain from others such
services and will be entitled to an increase in compensation at
rates provided in this Agreement. Olsson may elect not to
perform all or any of the Optional Additional Services without
cause or explanation:
2.2.1 Preparation of applications and supporting
documents for governmental financial support of the Project(s);
preparation or review of environmental studies and related
services; and assistance in obtaining environmental approvals.
2.2.2 Services to make measured drawings of or to
investigate existing conditions of facilities.
2.2.3 Services resulting from changes in the general
scope, extent or character of the Project(s) or major changes in
documentation previously accepted by Client where changes
are due to causes beyond Olsson's control.
2.2.4 Services resulting from the discovery of
conditions or circumstances which were not contemplated by
Olsson at the commencement of this Agreement. Olsson shall
notify Client of the newly discovered conditions or
circumstances and Client and Olsson shall renegotiate, in good
faith, the compensation for this Agreement, if amended terms
cannot be agreed upon, Olsson may terminate this Agreement
and Olsson shall be paid for its services through the date of
termination.
2.2.5 Providing renderings or models.
2.2.6 Preparing documents for alternate bids
requested by Client.
2.2.7 Analysis of operations, maintenance or
overhead expenses; value engineering; the preparation of rate
schedules; earnings or expense statements; cash flow or
economic evaluations or; feasibility studies, appraisals or
valuations.
2.2.8 Furnishing the services of independent
professional associates or consultants for work beyond the
Scope of Services.
2.2.9 Services necessary due to the Client’s award of
more than one prime contract for the Project(s); services
necessary due to the construction contract containing cost plus
or incentive-savings provisions; services necessary in order to
arrange for performance by persons other than the prime
contractor; or those services necessary to administer Client’s
contract(s).
2.2.10 Services in connection with staking out the work
of contractor(s).
2.2.11 Services during out-of-town travel or visits to the
site beyond those specifically identified in this Agreement.
2.2.12 Preparation of operating and maintenance
manuals.
2.2.13 Services to redesign some or all of the
Project(s).
2.2.14 Preparing to serve or serving as a consultant or
witness or assisting Client with any litigation, arbitration or other
legal or administrative proceeding.
2.2.15 Services relating to Construction Observation,
Certification, Inspection, Construction Cost Estimating, project
observation, construction management, construction
scheduling, construction phasing or review of Contractor's
performance means or methods.
2.3 Whenever, in its sole discretion, Olsson determines
additional services as set forth in this Section 2.3 are necessary
to avoid a delay in the completion of the Project(s) (“Necessary
Additional Services”), Olsson shall perform or obtain from others
such services without waiting for specific instructions from
Client, and Olsson will be entitled to an increase in
compensation for such services at the standard hourly billing
rate charged for those employees performing the services, plus
reimbursable expenses, if any:
2.3.1 Services in connection with work directive
changes and/or change orders directed by the Client to any
contractors.
2.3.2 Services in making revisions to drawings and
specifications occasioned by the acceptance of substitutions
proposed by contractor(s); services after the award of each
contract in evaluating and determining the acceptability of an
unreasonable or excessive number of substitutions proposed by
contractor(s); or evaluating an unreasonable or extensive
number of claims submitted by contractor(s) or others in
connection with the Project(s).
2.3.3 Services resulting from significant delays,
changes or price increases occurring as a direct or indirect result
of material, equipment or energy shortages.
Page 2 of 8
2.3.4 Additional or extended services during
construction made necessary by (1) work damaged during
construction, (2) a defective, inefficient or neglected work by any
contractor, (3) acceleration of the progress schedule involving
services beyond normal working hours, or (4) default by any
contractor.
SECTION 3—CLIENT'S RESPONSIBILITIES
3.1. Client shall provide all criteria and full information as to
Client's requirements for the Project(s); designate and identify in
writing a person to act with authority on Client's behalf in respect
of all aspects of the Project(s); examine and respond promptly
to Olsson's submissions; and give prompt written notice to
Olsson whenever Client observes or otherwise becomes aware
of any defect in the Olsson’s services.
3.2 Client agrees to pay Olsson the amounts due for
services rendered and expenses within thirty (30) days after
Olsson has provided its invoice for such services. In the event
Client disputes any invoice item, Client shall give Olsson written
notice of such disputed item within fifteen (15) days after receipt
of such invoice and shall pay to Olsson the undisputed portion of
the invoice according to the provisions hereof.
3.2.1 If Client fails to make any payment due Olsson
for services and expenses within thirty (30) days after receipt of
Olsson's statement therefore, Olsson may, after giving seven (7)
days written notice to Client, suspend services to Client under
this Agreement until Olsson has been paid in full all amounts
due for services, expenses and charges and Client will not
obtain any license to any Work Product or be entitled to retain
or use any Work Product pursuant to Section 7.1 unless and
until Olsson has been paid in full and Client has fully satisfied all
of its obligations under this Agreement.
3.3 Payments to Olsson shall not be withheld, postponed
or made contingent on the construction, completion or success
of the Project(s) or upon receipt by the Client of offsetting
reimbursements or credit from other parties who may have
caused the need for additional services. No withholdings,
deductions or offsets shall be made from Olsson’s
compensation for any reason unless and until Olsson has been
found to be legally liable for such amounts.
3.4 Client shall also do the following and pay all costs
incident thereto:
3.4.1 Furnish to Olsson any existing and/or required
borings, probings or subsurface explorations; hydrographic
surveys; laboratory tests or inspections of samples, materials or
equipment; appropriate professional interpretations of any of the
foregoing; environmental assessment and impact statements;
property, boundary, easement, right-of-way, topographic or
utility surveys; property descriptions; and/or zoning or deed
restrictions; all of which Olsson may rely upon in performing
services hereunder.
3.4.2 Guarantee access to and make all provisions for
Olsson to enter upon public and private property reasonably
necessary to perform its services on the Project(s).
3.4.3 Provide such legal, accounting, independent
cost estimating or insurance counseling services as may be
required for the Project(s); any auditing service required in
respect of contractor(s)' applications for payment; and/or any
inspection services to determine if contractor(s) are performing
the work legally.
3.4.4 Provide engineering surveys to establish
reference points for construction unless specifically included in
Olsson’s Scope of Services.
3.4.5 Furnish approvals and permits from all
governmental authorities having jurisdiction over the Project(s).
3.4.6 If more than one prime contractor is to be
awarded the contract for construction, designate a party to have
responsibility and authority for coordinating and interfacing the
activities of the various prime contractors.
3.4.7 All fees and other amounts payable by Client
under this Agreement are exclusive of taxes and similar
assessments. Without limiting the foregoing, Client is
responsible and liable for all sales, service, use, and excise
taxes, and any other similar taxes, duties, and charges of any
kind imposed by any federal, state, county or local governmental
authority on any amounts payable by Client under this
Agreement, other than any taxes imposed on Olsson’s
income. In the event any governmental authority assesses
Olsson for taxes, duties, or charges of any kind in connection
with Scope of Services provided by Olsson to Client, Olsson
shall be entitled to submit an invoice to Client, its successors or
assigns, for the amount of said assessment and related interest
and penalties. Client shall pay such invoice in accordance with
Olsson’s standard payment terms.
3.5 Client shall pay all costs incident to obtaining bids or
proposals from contractor(s).
3.6 Client shall pay all permit application review costs for
government authorities having jurisdiction over the Project(s).
3.7 Contemporaneously with the execution of this
Agreement, Client shall designate in writing an individual to act
as its duly authorized Project(s) representative.
3.8 Client shall bear sole responsibility for:
3.8.1 Jobsite safety. Neither the professional activities
of Olsson, nor the presence of Olsson or its employees or sub -
consultants at the Project, shall impose any duty on Olsson
relating to any health or safety laws, regulations, rules,
programs, or procedures. Client, itself or through its separate
contractor(s), shall be responsible for jobsite safety.
Notwithstanding the foregoing, Olsson shall be responsible for
the safety of Olsson’s own employees.
3.8.2 Notifying third parties including any
governmental agency or prospective purchaser, of the existence
of any hazardous or dangerous materials located in or around
the Project(s) site.
3.8.3 Providing and updating Olsson with accurate
information regarding existing conditions, including the
existence of hazardous or dangerous materials, proposed
Project(s) site uses, any change in Project(s) plans, and all
subsurface installations, such as pipes, tanks, cables and
utilities within the Project(s) site.
Page 3 of 8
3.8.4 Providing and assuming all responsibility for:
interpretation of contract documents; Construction
Observations; Certifications; Inspections; Construction Cost
Estimating; project observations; construction management;
construction scheduling; construction phasing; and review of
Contractor’s performance, means and methods. Client waives
any claims against Olsson and releases Olsson from liability
relating to or arising out of such services and agrees, to the
fullest extent permitted by law, to indemnify and hold Olsson
harmless from any and all damages, liabilities or costs, including
reasonable attorneys’ fees and defense costs, relating to such
actions and services.
3.9 Client releases Olsson from liability for any incorrect
advice, judgment or decision based on inaccurate information
furnished by Client or others.
3.10 If reasonable precautions will be inadequate to prevent
foreseeable bodily injury or death to persons resulting from a
material or substance, including hazardous materials,
encountered on the site, Olsson may immediately stop work in
the affected area and report the condition to Client. Client shall
be solely responsible for retaining independent consultant(s) to
determine the nature of the material and to abate or remove the
material. Olsson shall not be required to perform any services or
work relating to or in the area of such material until the material
has been removed or rendered harmless and only after
approval, if necessary of the government agency with
jurisdiction.
SECTION 4—MEANING OF TERMS
4.1 The “Cost of Construction” of the entire Project(s)
(herein referred to as "Cost of Construction") means the total
cost to Client of those portions of the entire Project(s) designed
and specified by Olsson, but it will not include Olsson's
compensation and expenses, the cost of land, rights-of-way, or
compensation for or damages to, properties unless this
Agreement so specifies, nor will it include Client's legal,
accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with the
Project(s) or the cost of other services to be provided by others
to Client pursuant to Section 3.
4.2 The “Salary Costs”: Used as a basis for payment mean
salaries and wages (base and incentive) paid to all Olsson's
personnel engaged directly on the Project(s), including, but not
limited to, engineers, architects, surveyors, designers,
draftsmen, specification writers, estimators, other technical and
business personnel; plus the cost of customary and statutory
benefits, including, but not limited to, social security
contributions, unemployment, excise and payroll taxes, workers'
compensation, health and retirement benefits, sick leave,
vacation and holiday pay and other group benefits.
4.3 “Certify” or “a Certification”: If included in the Scope of
Services, such services shall be limited to a statement of
Olsson’s opinion, to the best of Olsson’s professional
knowledge, information and belief, based upon its periodic
observations and reasonable review of reports and tests created
by Olsson or provided to Olsson. Olsson shall not be responsible
for constant or exhaustive observation of the work. Client
understands and agrees that any certifications based upon
discrete sampling observations and that such observations
indicate conditions that exist only at the locations and times the
observations were performed. Performance of such observation
services and certification does not constitute a warranty or
guarantee of any type, since even with diligent observation,
some construction defects, deficiencies or omissions in the work
may occur. Olsson shall have no responsibility for the means,
methods, techniques, sequences or procedures selected by the
contractor(s) or for the contractor’s safety precautions and
programs nor for failure by the contractor(s) to comply with any
laws or regulations relating to the performance or furnishing of
any work by the contractor(s). Client shall hold its contractor(s)
solely responsible for the quality and completion of the
Project(s), including construction in accordance with the
construction documents. Any duty under this Agreement is for
the sole benefit of the Client and not for any third party, including
the contractor(s) or any subcontractor(s). Olsson shall sign pre-
printed form certifications only if (a) Olsson approves the form
of such certification prior to the commencement of its services,
(b) such certification is expressly included in the Scope of
Services, (c) the certification is limited to a statement of
professional opinion and does not constitute a warranty or
guarantee, express or implied. It is understood that any
certification by Olsson shall not relieve the Client or the Client’s
contractors of any responsibility or obligation they may have by
industry custom or under any contract.
4.4 “Opinion of Probable Cost”: An opinion of probable
construction cost made by Olsson. In providing opinions of
probable construction cost, it is recognized that neither the
Client nor Olsson has control over the costs of labor, equipment
or materials, or over the contractor’s methods of determining
prices or bidding. The opinion of probable construction costs is
based on Olsson’s reasonable professional judgment and
experience and does not constitute a warranty, express or
implied, that the contractor’s bids or the negotiated price of the
work on the Project(s) will not vary from the Client’s budget or
from any opinion of probable cost prepared by Olsson.
4.5 “Day”: A calendar day of 24 hours. The term “days”
shall mean consecutive calendar days of 24 hours each, or
fraction thereof.
4.6 “Construction Observation”: If included in the Scope of
Services, such services during construction shall be limited to
periodic visual observation and testing of the work to determine
that the observed work generally conforms to the contract
documents. Olsson shall not be responsible for constant or
exhaustive observation of the work. Client understands and
agrees that such visual observations are discrete sampling
procedures and that such procedures indicate conditions that
exist only at the locations and times the observations were
performed. Performance of Construction Observation services
does not constitute a warranty or guarantee of any type, since
even with diligent observation, some construction defects,
deficiencies or omissions in the work may occur. Olsson shall
have no responsibility for the means, methods, techniques,
sequences or procedures selected by the contractor or for the
contractor’s safety precautions and programs nor for failure by
the contractor to comply with any laws or regulations relating to
the performance or furnishing of any work by the contractor.
Client shall hold its contractor(s) solely responsible for the
quality and completion of the Project(s), including construction
in accordance with the construction documents. Any duty under
this Agreement is for the sole benefit of the Client and not for
any third party, including the contractor or any subcontractor.
Client, or its designees shall notify Olsson at least twenty-four
(24) hours in advance of any field tests and observations
required by the construction documents.
Page 4 of 8
4.7 “Inspect” or “Inspection”: If included in the Scope of
Services, such services shall be limited to the periodic visual
observation of the contractor’s completed work to permit Olsson,
as an experienced and qualified professional, to determine that
the observed work, generally conforms to the contract
documents. Olsson shall not be responsible for constant or
exhaustive observation of the work. Client understands and
agrees that such visual observations are discrete sampling
procedures and that such procedures indicate conditions that
exist only at the locations and times the observations were
performed. Performance of such observation services does not
constitute a warranty or guarantee of any type, since even with
diligent observation, some construction defects, deficiencies or
omissions in the work may occur. Olsson shall have no
responsibility for the means, methods, techniques, sequences
or procedures selected by the contractor(s) or for the
contractor’s safety precautions and programs nor for failure by
the contractor(s) to comply with any laws or regulations relating
to the performance or furnishing of any work by the
contractor(s). Client shall hold its contractor(s) solely
responsible for the quality and completion of the Project(s),
including construction in accordance with the construction
documents. Any duty under this Agreement is for the sole benefit
of the Client and not for any third party, including the
contractor(s) or any subcontractor(s). Client, or its designees,
shall notify Olsson at least twenty-four (24) hours in advance of
any inspections required by the construction documents.
4.8 “Record Documents”: Drawings prepared by Olsson
upon the completion of construction based upon the drawings
and other data furnished to Olsson by the Contractor and others
showing significant changes in the work on the Project(s) made
during construction. Because Record Documents are prepared
based on unverified information provided by others, Olsson
makes no warranty of the accuracy or completeness of the
Record Documents.
SECTION 5—TERMINATION
5.1 Either party may terminate this Agreement, for cause
upon giving the other party not less than seven (7) calendar days
written notice of default for any of the following reasons;
provided, however, that the notified party shall have the same
seven (7) calendar day period in which to cure the default:
5.1.1 Substantial failure by the other party to perform
in accordance with the terms of this Agreement and through no
fault of the terminating party;
5.1.2 Assignment of this Agreement or transfer of the
Project(s) by either party to any other entity without the prior
written consent of the other party;
5.1.3 Suspension of the Project(s) or Olsson’s
services by the Client for more than ninety (90) calendar days,
consecutive or in the aggregate.
5.2 In the event of a “for cause” termination of this
Agreement by either party, the Client shall, within fifteen (15)
calendar days after receiving Olsson’s final invoice, pay Olsson
for all services rendered and all reimbursable costs incurred by
Olsson up to the date of termination, in accordance with the
payment provisions of this Agreement.
5.2.1 In the event of a “for cause” termination of this
Agreement by Client and (a) a final determination of default is
entered against Olsson under Section 6.2 and (b) Client has fully
satisfied all of its obligations under this Agreement, Olsson shall
grant Client a limited license to use the Work Product pursuant
to Section 7.1.
5.3 The Client may terminate this Agreement for the
Client’s convenience and without cause upon giving Olsson not
less than seven (7) calendar days written notice
SECTION 6—DISPUTE RESOLUTION
6.1. Dispute Resolution
On the written notice of either party to the other of the election
to submit any dispute under this Agreement, each party shall
designate their representatives and shall meet within ten (10)
days after the service of the notice. The parties themselves shall
then attempt to resolve the dispute within ten (10) days of
meeting.
6.2 Certification of Merit
Client agrees that it will not assert any claim, including but not
limited to, professional negligence, negligence, breach of
contract, misconduct, error, omission, fraud, or
misrepresentation (“Claim”) against Olsson, or any Olsson
subconsultant, unless Client has first provided Olsson with a
sworn certificate of merit affidavit setting forth the factual and
legal basis for such Claim (the “Certificate”). The Certificate
shall be executed by an independent engineer (“Certifying
Engineer”) currently licensed and practicing in the jurisdiction of
the Project site. The Certificate must contain: (a) the name and
license number of the Certifying Engineer; (b the qualifications
of the Certifying Engineer, including a list of all publications
authored in the previous 10 years and a list of all cases in which
the Certifying Engineer testified within the previous 4 years ; (c)
a statement by the Certifying Engineer setting forth the factual
basis for the Claim; (d) a statement by the Certifying Engineer
of each and every act, error, or omission that the Certifying
Engineer contends supports the Claim or any alleged violation
of any applicable standard of care; (e) a statement by the
Certifying Engineer of all opinions the Certifying Engineer holds
regarding the Claim or any alleged violation of any applicable
standard of care; (f) a list of every document related to the
Project reviewed by the Certifying Engineer; and (g) a list of
every individual who provided Certifying Engineer with any
information regarding the Project. The Certificate shall be
provided to Olsson not less than thirty (30) days prior to any
arbitration or litigation commenced by Client or not less than ten
(10) days prior to the initial response submitted by Client in any
arbitration or litigation commenced by someone other than
Client. The Certificate is a condition precedent to the right of
Client to assert any Claim in any litigation or arbitration and
Client’s failure to timely provide a Certificate to Olsson will be
grounds for automatic dismissal of the Claim with prejudice. In
any such instance, Olsson shall be entitled to an award of
attorney’s fees, costs, and expenses.
SECTION 7—MISCELLANEOUS
7.1 Reuse of Documents
All documents, including drawings, specifications, reports,
boring logs, maps, field data, data, test results, information,
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recommendations, or opinions prepared or furnished by Olsson
(and Olsson's independent professional associates and
consultants) pursuant to this Agreement (“Work Product”), are
all Olsson’s instruments of service, do not constitute goods or
products, and are copyrighted works of Olsson. Olsson shall
retain an ownership and property interest in such Work Product
whether or not the Project(s) is completed. If Client has fully
satisfied all of its obligations under this Agreement, Olsson shall
grant Client a limited license to use the Work Product and Client
may make and retain copies of Work Product for use in
connection with the Project(s); however, such Work Product is
for the exclusive use and benefit of Client or its agents in
connection with the Project(s), are not intended to inform, guide
or otherwise influence any other entities or persons with respect
to any particular business transactions, and should not be relied
upon by any entities or persons other than Client or its agents
for any purpose other than the Project(s). Such Work Product is
not intended or represented to be suitable for reuse by Client or
others on extensions of the Project(s) or on any other Project(s).
Client will not distribute or convey such Work Product to any
other persons or entities without Olsson's prior written consent
which shall include a release of Olsson from liability and
indemnification by the third party. Any reuse of Work Product
without written verification or adaptation by Olsson for the
specific purpose intended will be at Client's sole risk and without
liability or legal exposure to Olsson, or to Olsson's independent
professional associates or consultants, and Client shall
indemnify and hold harmless Olsson and Olsson's independent
professional associates and consultants from all claims,
damages, losses and expenses including attorneys' fees arising
out of or resulting therefrom. Any such verification or adaptation
of Work Product will entitle Olsson to further compensation at
rates to be agreed upon by Client and Olsson.
7.2 Electronic Files
By accepting and utilizing any electronic file of any Work Product
or other data transmitted by Olsson, the Client agrees for itself,
its successors, assigns, insurers and all those claiming under or
through it, that by using any of the information contain ed in the
attached electronic file, all users agree to be bound by the
following terms. All of the information contained in any electronic
file is the work product and instrument of service of Olsson, who
shall be deemed the author, and shall retain all common law,
statutory law and other rights, including copyrights, unless the
same have previously been transferred in writing to the Client.
The information contained in any electronic file is provided for
the convenience to the Client and is provided in “as is” condition.
The Client is aware that differences may exist between the
electronic files transferred and the printed hard -copy original
signed and stamped drawings or reports. In the event of a
conflict between the signed original documents prepared by
Olsson and the electronic files, which may be transferred, the
signed and sealed original documents shall govern. Olsson
specifically disclaims all warranties, expressed or implied,
including without limitation, and any warranty of merchantability
or fitness for a particular purpose with respect to any electronic
files. It shall be Client’s responsibility to confirm the accuracy of
the information contained in the electronic file and that it
accurately reflects the information needed by the Client. Client
shall not retransmit any electronic files, or any portion thereof,
without including this disclaimer as part of any such
transmissions. In addition, Client agrees, to the fullest extent
permitted by law, to indemnify and hold harmless Olsson, its
officers, directors, employees and sub consultants against any
and all damages, liabilities, claims or costs, including
reasonable attorney’s and expert witness fees and defense
costs, arising from any changes made by anyone other than
Olsson or from any reuse of the electronic files without the prior
written consent of Olsson.
7.3 Opinion of Probable Cost
Since Olsson has no control over the cost of labor, materials,
equipment or services furnished by others, or over the
contractor(s)' methods of determining prices, or over competitive
bidding or market conditions, Olsson's Opinion of Probable Cost
provided for herein is made on the basis of Olsson's experience
and qualifications and represent Olsson's best judgment as an
experienced and qualified professional engineer, familiar with
the construction industry. Client acknowledges and agrees that
Olsson cannot and does not guarantee proposals or bids and
that actual total Project(s) or construction costs may reasonably
vary from Olsson’s Opinion of Probable Cost. If prior to the
bidding or negotiating phase Client wishes greater assurance as
to total Project(s) or construction costs, Client shall employ an
independent cost estimator as provided in paragraph 3.4.3. If
Olsson’s Opinion of Probable Cost was performed in
accordance with its standard of care and was reasonable under
the total circumstances, any services performed by Olsson to
modify the contract documents to bring the construction cost
within any limitation established by Client will be considered
Optional Additional Services and paid for as such by Client. If,
however, Olsson’s Opinion of Probable Cost was not performed
in accordance with its standard of care and was unreasonable
under the total circumstances and the lowest negotiated bid for
construction of the Project(s) unreasonably exceeds Olsson's
Opinion of Probable Cost, Olsson shall modify its work as
necessary to adjust the Project(s)’ size, and/or quality to
reasonably comply with the Client’s budget at no additional cost
to Client. Under such circumstances, Olsson’s modification of its
work at no cost shall be the limit of Olsson’s responsibility with
regard to any unreasonable Opinion of Probable Cost.
7.4 Prevailing Wages
It is Client's responsibility to determine whether the Project(s) is
covered under any prevailing wage regulations. Unless Client
specifically informs Olsson in writing that the Project(s) is a
prevailing wage project and is identified as such in the Scope of
Services, Client agrees to reimburse Olsson and to defend,
indemnify and hold harmless Olsson from and against any
liability, including costs, fines and attorneys' fees, resulting from
a subsequent determination that the Project(s) was covered
under any prevailing wage regulations.
7.5 Samples
All material testing samples shall remain the property of the
Client. If appropriate, Olsson shall preserve samples obtained
no longer than forty-five (45) days after the issuance of any
document that includes the data obtained from those samples.
After that date, Olsson may dispose of the samples or return
them to Client at Client's cost.
7.6 Standard of Care
Olsson will strive to perform its services in a manner consistent
with and limited to that level of care and skill ordinarily exercised
by members of Olsson’s profession providing similar services in
the same locality under similar circumstances at the time
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Olsson’s services are performed. This Agreement creates no
other representation, warranty or guarantee, express or implied.
7.7 Force Majeure
Any delay in the performance of any of the duties or obligations
of either party hereto (except the payment of money) shall not
be considered a breach of this Agreement and the time required
for performance shall be extended for a period equal to the
period of such delay, provided that such delay has been caused
by or is the result of any acts of God, acts of the public enemy,
insurrections, riots, embargoes, labor disputes, including strikes,
lockouts, job actions, boycotts, fires, explosions, floods,
shortages of material or energy, or other unforeseeable causes
beyond the control and without the fault or negligence of the
party so affected. The affected party shall give prompt notice to
the other party of such cause, and shall take promptly whatever
reasonable steps are necessary to relieve the effect of such
cause.
7.8 Equal Employment Opportunity
Olsson and any sub-consultant or subcontractor 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 or any other
protected characteristic under applicable law. 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, disability
or veteran status or any other protected characteristic under
applicable law. Olsson and any sub-consultant or subcontractor
certify that they do not operate any programs that promote DEI
in a way that violates applicable federal anti-discrimination laws.
7.9 Confidentiality
In performing this Agreement, the parties may disclose to each
other written, oral, electronic, graphic, machine-readable,
tangible or intangible, non-public, confidential or proprietary data
or information in any form or medium, including but not limited
to: (1) information of a business, planning, marketing ,
conceptual, design, or technical nature; (2) models, tools,
hardware, software or source code; and (3) any documents,
videos, photographs, audio files, data, studies, reports,
flowcharts, works in progress, memoranda, notes, files or
analyses that contain, summarize or are based upon any non-
public, proprietary or confidential information (hereafter referred
to as the "Information"). The Information is not required to be
marked as confidential.
7.9.1 Therefore, Olsson and Client agree that the
party receiving Information from the other party to this
Agreement (the “Receiving Party”) shall keep Information
confidential and not use the Information in any manner other
than in the performance of this Agreement without prior written
approval of the party disclosing Information (the “Disclosing
Party”) unless Client is a public entity and the release of
Information is required by law or legal process.
7.9.2 Prior to the start of construction on the Project,
the existence of discussions between the parties, the purpose
of this Agreement, and this Agreement shall be considered
Information subject to the confidentiality provisions of this
Agreement.
7.9.3 Notwithstanding anything to the contrary herein,
the Receiving Party shall have no obligation to preserve the
confidentiality of any Information which:
7.9.3.1 was previously known to the Receiving
Party free of any obligation to keep it confidential; or
7.9.3.2 is or becomes publicly available by other
than unauthorized disclosures; or
7.9.3.3 is independently developed by the
Receiving Party without a breach of this Agreement; or
7.9.3.4 is disclosed to third parties by the
Disclosing Party without restrictions; or
7.9.3.5 is received from a third party not subject to
any confidentiality obligations.
7.9.4 In the event that the Receiving Party is required
by law or legal process to disclose any of Information of the
Disclosing Party, the Receiving Party required to disclose such
Information shall provide the Disclosing Party with prompt oral
and written notice, unless notice is prohibited by law (in which
case such notice shall be provided as early as may be legally
permissible), of any such requirement so that the Disclosing
Party may seek a protective order or other appropriate remedy.
7.9.5 Notwithstanding anything to the contrary herein
(or to the contrary of any existing or future nondisclosure,
confidentiality or similar agreement between the parties), Olsson
is authorized, to use, display, reproduce, publish, transmit, and
distribute Information (including, but not limited to, videos and
photographs of the Project) on and in any and all formats and
media (including, but not limited to, Olsson’s internet website)
throughout the world and in all languages in connection with or
in any manner relating to the marketing, advertising, selling,
qualifying, proposing, commercializing, and promotion of Olsson
and/or its services and business and in connection with any
other lawful purpose of Olsson. In the event of any conflict or
inconsistency between the provisions of this section and any
other prior or future nondisclosure, confidentiality or similar
agreement between the parties, the terms of this section shall
take precedence.
7.9.6 Nothing contained in this Agreement shall be
construed as altering any rights that the Disclosing Party has in
the Information exchanged with or disclosed to the Receiving
Party, and upon request, the Receiving Party will return all
Information received in tangible form to the Disclosing Party, or
at the Receiving Party’s option, destroy all such Information. If
the Receiving Party exercises its option to destroy the
Information, the Receiving Party shall certify such destruction to
the Disclosing Party.
7.9.7 The parties acknowledge that disclosure or use
of Information in violation of this Agreement could cause
irreparable harm for which monetary damages may be difficult
to ascertain or constitute an inadequate remedy. Each party
therefore agrees that the Disclosing Party shall be entitled in
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addition to its other rights to seek injunctive relief for any
violation of this Agreement.
7.9.8 The obligations of confidentiality set forth herein
shall survive termination of this Agreement but shall only remain
in effect for a period of one (1) year from the date the Information
is first disclosed.
7.10 Damage or Injury to Subterranean Structures or
Utilities, Hazardous Materials, Pollution and Contamination
7.10.1 To the extent that work pursuant to this
Agreement requires any sampling, boring, excavation, ditching
or other disruption of the soil or subsurface at the Site, Olsson
shall confer with Client prior to such activity and Client will be
responsible for identifying, locating and marking, as necessary,
any private subterranean structures or utilities and Olsson shall
be responsible for arranging investigation of public subterranean
structures or utilities through an appropriate utility one-call
provider. Thereafter, Olsson shall take all reasonable
precautions to avoid damage or injury to subterranean
structures or utilities which were identified by Client or the one-
call provider. Olsson shall not be responsible for any damage,
liability or costs, for any property damage, injury or economic
loss arising or allegedly arising from damages to subterranean
structures or utilities caused by subsurface penetrations in
locations approved by Client and/or the one call provider or not
correctly shown on any plans, drawings or utility clearance
provided to Olsson, except for damages caused by the
negligence of Olsson in the use of such information.
7.10.2 It is understood and agreed that any assistance
Olsson may provide Client in the disposal of waste materials
shall not result in Olsson being deemed as a generator,
arranger, transporter or disposer of hazardous materials or
hazardous waste as defined under any law or regulation. Title to
all samples and waste materials remains with Client, and at no
time shall Olsson take title to the above material. Client may
authorize Olsson to execute Hazardous Waste Manifest, Bill of
Lading or other forms as agent of Client. If Client requests
Olsson to execute such documents as its agent, the Hazardous
Waste Manifest, Bill of Lading or other similar documents shall
be completed in the name of the Client. Client agrees to
indemnify and hold Olsson harmless from any and all claims that
Olsson is a generator, arranger, transporter, or disposer of
hazardous waste as a result of any actions of Olsson, including,
but not limited to, Olsson signing a Hazardous Waste Manifest,
Bill of Lading or other form on behalf of Client.
7.10.3 At any time, Olsson can request in writing that
Client remove samples, cuttings and hazardous substances
generated by the Project(s) from the project site or other
location. Client shall promptly comply with such request, and
pay and be responsible for the removal and lawful disposal of
samples, cuttings and hazardous substances, unless other
arrangements are mutually agreed upon in writing.
7.10.4 Client shall release Olsson of any liability for,
and shall defend and indemnify Olsson against any and all
claims, liability and expense resulting from operations under this
Agreement on account of injury to, destruction of, or loss or
impairment of any property right in or to oil, gas, or other mineral
substance or water, if at the time of the act or omission causing
such injury, destruction, loss or impairment, said substance had
not been reduced to physical possession above the surface of
the earth, and for any loss or damage to any formation, strata,
reservoir beneath the surface of the earth.
7.10.5 Notwithstanding anything to the contrary
contained herein, it is understood and agreed by and between
Olsson and Client that the responsibility for pollution and
contamination shall be as follows:
7.10.5.1 Unless otherwise provided herein, Client
shall assume all responsibility for, including control and removal
of, and protect, defend and save harmless Olsson from and
against all claims, demands and causes of action of every kind
and character arising from pollution or contamination (including
naturally occurring radioactive material) which originates above
the surface of the land or water from spills of fuels, lubricants,
motor oils, pipe dope, paints, solvents, ballast, bilge and
garbage, except unavoidable pollution from reserve pits, wholly
in Olsson’s possession and control and directly associated with
Olsson’s equipment.
7.10.5.2 In the event a third party commits an act or
omission which results in pollution or contamination for which
either Olsson or Client, for whom such party is performing work,
is held to be legally liable, the responsibility therefore shall be
considered as between Olsson and Client, to be the same as if
the party for whom the work was performed had performed the
same and all of the obligations regarding defense, indemnity,
holding harmless and limitation of responsibility and liability, as
set forth herein, shall be specifically applied.
7.11 Controlling Law and Venue
The parties agree that this Agreement and any legal actions
concerning its validity, interpretation or performance shall be
governed by the laws of the State of Arkansas. It is further
agreed that any legal action between the parties arising out of
this Agreement or the performance of services shall be brought
in a court of competent jurisdiction in Arkansas.
7.12 Subconsultants
Olsson may utilize as necessary in its discretion subconsultants
and other subcontractors. Olsson will be paid for all services
rendered by its subconsultants and other subconsultants as set
forth in this Agreement.
7.13 Assignment
7.13.1 Client and Olsson each are hereby bound and
the partners, successors, executors, administrators and legal
representatives of Client and Olsson (and to the extent
permitted by paragraph 7.13.2 the assigns of Client and Olsson)
are hereby bound to the other party to this Agreement and to the
partners, successors, executors, administrators and legal
representatives (and said assigns) of such other party, in
respect of all covenants, agreements and obligations of this
Agreement.
7.13.2 Neither Client nor Olsson shall assign, sublet or
transfer any rights under or interest in (including, but without
limitation, moneys that may become due or moneys that are
due) this Agreement without the written consent of the other,
except to the extent that any assignment, subletting or transfer
is mandated by law or the effect of this limitation may be
restricted by law. Unless specifically stated to the contrary in any
written consent to an assignment, no assignment will release or
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discharge the assignor from any duty or responsibility under this
Agreement. Nothing contained in this paragraph shall prevent
Olsson from employing such subconsultants and other
subcontractors as Olsson may deem appropriate to assist in the
performance of services under this Agreement.
7.13.3 Nothing under this Agreement shall be
construed to give any rights or benefits in this Agreement to
anyone other than Client and Olsson, and all duties and
responsibilities undertaken pursuant to this Agreement will be
for the sole and exclusive benefit of Client and Olsson and not
for the benefit of any other party. There are no third -party
beneficiaries of this Agreement.
7.14 Indemnity (Omitted)
7.15 Limitation on Damages
7.15.1 Notwithstanding any other provision of this
Agreement, and to the fullest extent permitted by law, neither
party’s individual employees, principals, officers or directors
shall be subject to personal liability or damages arising out of or
connected in any way to the Project(s) or to this Agreement.
7.15.2 Notwithstanding any other provision of this
Agreement, and to the fullest extent permitted by law, neither
Client nor Olsson, their respective officers, directors, partners,
employees, contractors or subconsultants shall be liable to the
other or shall make any claim for any delay damages, any
punitive damages or any incidental, indirect or consequential
damages arising out of or connected in any way to the Project(s)
or to this Agreement. This mutual waiver of delay damages and
consequential damages shall include, but is not limited to,
disruptions, accelerations, inefficiencies, increased construction
costs, increased home office overhead, loss of use, loss of profit,
loss of business, loss of income, loss of reputation or any other
delay or consequential damages that either party may have
incurred from any cause of action including, but not limited to,
negligence, statutory violations, misrepresentation, fraud,
deceptive trade practices, breach of fiduciary duties, strict
liability, breach of contract and/or breach of strict or implied
warranty. Both the Client and Olsson shall require similar
waivers of consequential damages protecting all the entities or
persons named herein in all contracts and subcontracts with
others involved in the Project(s).
7.15.3 Notwithstanding any other provision of this
Agreement, Client agrees that, to the fullest extent permitted by
law, Olsson’s total liability to the Client for any and all injuries,
claims, losses, expenses, damages, or claims expenses of any
kind arising from any services provided by or through Olsson
under this Agreement, shall not exceed the amount of Olsson’s
fee earned under this Agreement. Client acknowledges that
such causes include, but are not limited to, negligence, statutory
violations, misrepresentation, fraud, deceptive trade practices,
breach of fiduciary duties, strict liability, breach of contract
and/or breach of strict or implied warranty. This limitation of
liability shall apply to all phases of Olsson’s services performed
in connection with the Project(s), whether subsequent to or prior
to the execution of this Agreement.
7.16 Entire Agreement/Severability
This Agreement supersedes all prior communications,
understandings and agreements, whether oral or written.
Amendments to this Agreement must be in writing and signed
by the Client and Olsson. If any part of this Agreement is found
to conflict with applicable law, such part alone shall be null and
void and considered stricken, but the remainder of this
Agreement shall be given full force and effect.
General Provisions Updated: 08/20/2025