HomeMy WebLinkAboutOrdinance 4995 ORDINANCE NO. 4995
AN ORDINANCE WAIVING THE REQUIREMENTS OF
FORMAL COMPETITIVE BIDDING AND APPROVING A
CONTRACT WITH POWER SECURE, INC. FOR THE
PURCHASE OF BACK-UP POWER GENERATION EQUIPMENT
AND INSTALLATION SERVICES FOR THE WEST SIDE
WASTEWATER TREATMENT PLANT AND THE
HAMESTRING SEWER LIFT STATION IN THE AMOUNT OF
$ 1 ,986,786.68; AND APPROVING A 2% CONTINGENCY OF
$403000.00.
WHEREAS, due to the unique and proprietary nature of the switch gear equipment involved,
the long delivery times for generators and replacement . parts, and the requirement that power
management for all three major wastewater facilities be overseen by a single entity, it is essential that
all three back-up generators be of the same manufacture.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF FAYETTEVILLE, ARKANSAS:
Section 1 . That the City Council of the City of Fayetteville, Arkansas hereby finds that such
circumstances constitute an exceptional situation where competitive bidding is not feasible or
practical, waives the requirements of formal competitive bidding for back-up power generation
equipment and installation services, and approves a contract with Power Secure, Inc. for the purchase
of back-up power generation equipment and installation services for the West Side Wastewater
Treatment Plant and the Hamestring Sewer Lift Station in the amount of $ 1 ,986,786.68.
Section 2. That the City Council of the City of Fayetteville, Arkansas hereby approves a 2%
contingency of $40,000.00.
�• F,FK/TR64 , .,
c G� SG.
PASSED and APPROVED this 20'h day of March, 2007. ^U G
APPROVE : ATTEST: 'c : FAYETTEVILLE�
By: By:
DAN COODY, Mayor S NDRA E. SMITH, City Clerk/Treasurer
a
AGREEMENT
This contract executed this Mday of IgAV )4 2007, between the City of
Fayetteville, Arkansas and PowerSecure, Inc. In consideration of the mutual covenants
contained herein, the parties agree as follows:
1 . PowerSecure, at its own cost and expense shall furnish all labor, materials,
supplies, machinery, equipment, tools, supervision, bonds, insurance, tax permits,
and all other accessories and services necessary to complete the work described in
the proposal for PowerSecure Interactive Distributed Generation' Services,
Westside Wastewater Treatment Facility, Fayetteville, AR, and the work described
in the proposal for PowerSecure Interactive Distributed Generation' Services,
Hamestring Lift Station, Fayetteville, AR, and in accordance with specifications
attached hereto and made a part hereof under, all included herein as if spelled out
word for word.
2. The City of Fayetteville shall pay PowerSecure based on their proposal in an
amount not to exceed $ 1,986,786.68. Payments will be made after approval and
acceptance of work and submission of invoice. Payments will be made
approximately 30 days after receipt of invoice.
3. The Contract documents which comprise the contract between the City of
Fayetteville and PowerSecure consist of this Contract and the following documents
attached hereto, and made a part hereof:
A. Contract General Provisions
B. Exhibit A PowerSecure Interactive Distributed Generation' Services,
Westside Wastewater Treatment Facility, Fayetteville, AR.
C. Westside 2000kW Drawings.PDF
D. Exhibit B PowerSecure Interactive Distributed Generation' Services,
Hamestring Lift Station, Fayetteville, AR.
E. Hamestring 2000kW Drawings.PDF
4. Freedom of Information Act: City of Fayetteville contracts and documents
prepared while performing city contractual work are subject to the Arkansas
Freedom of Information Act. If a Freedom of Information Act request is presented
to the City of Fayetteville, the contractor will do everything possible to provide the
documents in a prompt and timely manner as prescribed in the Arkansas Freedom
of Information Act (A.C.A. 25-19-101 et. Seq.). Only legally authorized photo
coping costs pursuant to the FOIA, /may be assessed for this compliance.
WITNESS OUR HANDS THIS dSI DAY OF U , 2007.
CITY OF FAYETTEVILLE,
FAYETTEVILLE, ARKANSAS
DAN COODY, Mayor
Agree t Page 1 of 2
AGREEMENT
Attest: _ ; FAYETTEVILLE ; _?
�z0
9RkANSP��2,s
SONDRA SMITH, City Clerkitty C1l�eMrk�k
POWERSECURE, INC.
1 i
BYS , d+1ee4intrl FCes;den"r4- U j
NAME AND TITLE
i
Attest:
i
i
I
COMPANY SECRETARY
I
BUSINESS ADDRESS
Agreement Page 2 of 2
CONTRACT GENERAL PROVISIONS
ARTICLE 1 . INVOICING AND TERMS OF PAYMENT
1 .1 CITY OF FAYETTEVILLE shall pay POWERSECURE the price specified in paragraph 2 of the
agreement in accordance with the following schedule:
% of Contract
Price
POW ERSECURE's Receipt of 15
IDG® System Purchase Order
Equipment Ship Dale to 30
project site
Substantial Completion of 30
Installation
Final Commissioning/Start-up Commissioning/Start-up25
1 .2 Any work beyond the scope of Work described herein requested of and performed by
POWERSECURE ("Additional Work") shall be billed to CITY OF FAYETTEVILLE at mutually
agreed to rates. Prior to performing any Additional Work POWERSECURE will notify CITY OF
FAYETTEVILLE in writing of the Additional Work requested, the reason for such request and the
rates under which the Work will be performed. Changes, modifications, or amendments in scope,
price or fees to this contract shall not be allowed without a prior formal contract amendment
approved by the Mayor and the City Council in advance of the change in scope, cost or fees.
1 .3 The prices for the Work and any Additional Work are inclusive of federal, state, municipal or other
sales or use tax. The invoice will include a line item for sales tax.
1 .4 Payment for all Work, Additional Work or other services, if any, shall be due and payable by CITY
OF FAYETTEVILLE within thirty (30) days from CITY OF FAYETTEVILLE's receipt of the invoice
for such Work, Additional Work or other services. POWER SECURE will, upon completion of the
WORK and before final payment is due, furnish CITY OF FAYETTEVILLE with reasonable
evidence that all services, labor, materials, and equipment have been paid in full and agrees to
execute the Lien Waiver attached hereto as Exhibit B.
1 .5 If CITY OF FAYETTEVILLE fails to pay any invoice by the due date, CITY OF FAYETTEVILLE
shall liable to POWERSECURE for any attorney fees incurred in collection of any amount due and
shall pay interest to POWERSECURE on the amount past due in the amount of 1 .5% per month.
ARTICLE 2. OBLIGATIONS OF POWER SECURE
2.1 Independent Power Secure
POWER SECURE is an independent CONTRACTOR and will maintain complete control of and
responsibility for its employees, SUBCONTRACTORS, and agents. POWER SECURE shall also be solely
responsible for the means and methods for carrying out the Scope of Services and for the safety of its
employees.
2.2 Lower-Tier Contractors
2.2. 1 Within 30 working days after the execution of this AGREEMENT, POWER SECURE will submit to
CITY OF FAYETTEVILLE the names of all Lower-Tier Contractors proposed for the Work. POWER
SECURE will not employ any Lower-Tier Contractors that CITY OF FAYETTEVILLE may object to
as lacking capability to properly perform. No changes will be allowed from the approved Lower-Tier
Contractor list without the prior written approval of CITY OF FAYETTEVILLE.
2.2.2 POWER SECURE agrees that it is as fully responsible to CITY OF FAYETTEVILLE for the acts
and omissions of its Lower-Tier Power Secures and of persons either directly or indirectly
employed by them as it is for the acts and omissions of persons directly employed by POWER
SECURE.
2.2.3 Nothing contained in this CONTRACT will be construed to create any contractual relationship
between any Lower-Tier Contractor and CITY OF FAYETTEVILLE.
1 of 9
CONTRACT GENERAL PROVISIONS
2.2.4 POWER SECURE will provide certification that the Lower-Tier Contractor has the necessary
permits and licenses for the Work proposed.
2.3 Differing Site Conditions
2.3. 1 POWER SECURE will promptly, and before such conditions are substantially disturbed, notify CITY
OF FAYETTEVILLE in writing of:
•(a) Subsurface or latent physical conditions at the site differing materially from those indicated
in this CONTRACT.
•(b) Physical conditions at the site, of an unusual nature, differing materially from those
ordinarily encountered and generally recognized as inherent in the Work.
2.3.2 Upon notice CITY OF FAYETTEVILLE will promptly investigate the conditions. If the conditions do
materially differ and cause an increase or decrease in POWER SECURE's cost of, or the time
required for, performing any part of the Work, CITY OF FAYETTEVILLE will make an equitable
adjustment and modify this CONTRACT in writing.
2.3.3 No claim of POWER SECURE under this clause will be allowed unless POWER SECURE has
given the notice required above.
2.4 Rejected Material
Any material rejected by CITY OF FAYETTEVILLE because of nonconformity with this CONTRACT will be
removed at once from the vicinity of the Work by POWER SECURE at its own expense.
2.5 Warranty
2.5.1 The Warranty period for equipment will be for a period of five (5) years commencing on the
acceptance date and the Warranty period for services will be for a period of one (1 ) year
commencing on the acceptance date.
2.5.2 POWERSECURE warrants that:
2.5.2.1 Services will be performed in a professional and workmanlike manner consistent with
industry standards;
2.5.2.2 Its agents, and employees, are qualified and competent to perform the Work and
Additional Work, if any, and that all tools and equipment furnished by POWERSECURE in
its performance of the Work and Additional Work are, and shall be, kept in good working
order.
2.5.2.3 All equipment will be free from defects in material and workmanship and will function in
accordance with the specifications;
2.5.2.4 That it has the requisite authority to sell the equipment;
2.5.2.5 There are no pending or threatened claims or causes of action that would have an
adverse effect on POW ERSECURE's ability to perform its obligations under this Contract
or upon the City of Fayetteville of Fayetteville's ability to use the equipment;
2.5.2.6 The equipment and services will not infringe on any patent, trademark or copyright;
2.5.3 In the event that CITY OF FAYETTEVILLE or the City of Fayetteville of Fayetteville notifies
POWERSECURE of any defect in materials or workmanship during the applicable warranty period,
POWERSECURE shall cored the defect at its own expense. POWERSECURE shall not be
responsible for any problems or defects attributable to improper operation, maintenance, or use of
the Work or any Additional Work.
2.5.4 THE WARRANTIES SET FORTH IN THIS CONTRACT ARE EXCLUSIVE, AND NO OTHER
WARRANTIES OR REMEDIES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL,
EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF
2of9
CONTRACT GENERAL PROVISIONS
INFRINGMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, OR
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, SHALL APPLY.
TO THE MAXIMUM EXTENT PERMITTED, POWERSECURE HEREBY ASSIGNS TO CITY OF
FAYETTEVILLE ALL EXPRESS AND IMPLIED WARRANTIES FROM THE MANUFACTURER OF
ANY PARTS AND EQUIPMENT INSTALLED BY POWERSECURE AS A PART OF THE WORK
(see Manufacturer's warranties for details). Except as provided in Section 2.2, POWERSECURE
shall not be responsible for any work done by others or for any loss, damage, cost or expense
arising out of or resulting from such work, unless authorized by POWERSECURE in advance.
2.6 Insurance
2.6.1 POWER SECURE will maintain throughout this CONTRACT the following insurance:
(a) Worker's compensation insurance in the statutory amount and employees liability
insurance in an amount not less than $500,000 for all employees engaged in the Work.
(b) Comprehensive automobile and vehicle liability insurance covering claims for injuries to
members of the public and/or damages to property of others arising from use of motor
vehicles, including onsite and offsite operations, and owned, non-owned, or hired vehicles,
with $1 ,000,000 combined single limits.
(c) Commercial general liability insurance covering claims for injuries of members of the
public or damage to property of others arising out of any covered act or omission of
POWER SECURE or of any of its employees, agents, or Power Secures, with $5,000,000
per occurrence and in the aggregate.
(d) Any other insurance required by law (e.g., U.S. Longshoreman and Harbors Act coverage,
when harbor operations, offshore operations, or operations on navigable waterways are
involved).
2.6.2 Insurance coverage in Items (b) and (c) above will name CITY OF FAYETTEVILLE as additional
insured. Such insurance will be the primary coverage to CITY OF FAYETTEVILLE.
2.6.3 Before commencing Work under this contract, POWER SECURE will furnish CITY OF
FAYETTEVILLE with certificates of insurance verifying coverage's and additional insureds.
Certificates also will state that the insurance carrier will give CITY OF FAYETTEVILLE thirty (30)
days notice of any insurance cancellation or material alteration.
2.7 Indemnity
2.7.1 To the maximum extent permitted by law, POWER SECURE will indemnify CITY OF
FAYETTEVILLE and its officers, Contractors, affiliated corporations, and employees from all
claims, damages, losses, and costs, including litigation expenses and attorney's fees, arising out of
or resulting from, or alleged to have resulted from, the performance of the Work, including any act
or omission of POWER SECURE, any Lower-Tier Contractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable. The foregoing will
not apply in the event that the claim, damages, losses, or expenses are caused by the sole
negligence of CITY OF FAYETTEVILLE but will apply to losses caused by the concurrent fault or
negligence of CITY OF FAYETTEVILLE and POWER SECURE.
2.7.2 This indemnification obligation shall not be limited in any way by any limitation on the amount of
compensation, damages or benefits payable under workers compensation, disability benefit or
other employee benefit acts.
2.8 Codes, Laws, and Regulations
POWER SECURE will comply with all applicable codes, laws, regulations, standards, and ordinances in
force during the term of this CONTRACT.
3of9
CONTRACT GENERAL PROVISIONS
2.9 Permits, Licenses, and Fees
POWER SECURE will obtain and pay for all permits and licenses required by law that are associated with
the Work.
2.10 Safety
POWER SECURE is solely responsible for health and safety of its employees and its SUBCONTRACTORS.
POWER SECURE shall have a health and safety plan fully compliant with health and safety laws and
consistent with CITY OF FAYETTEVILLE health and safety plans. POWER SECURE shall provide all
applicable safety training and equipment required in the health and safety plans. POWER SECURE is
responsible for ensuring that its SUBCONTRACTORS comply with this provision. Visits and observations
made by CITY OF FAYETTEVILLE will not relieve the POWER SECURE of its obligation to conduct
comprehensive safety inspections of the site and provide adequate safety in conformance with this
CONTRACT.
2.11 Protection of Work and Property
2.11 .1 POWER SECURE will at all times safely guard and protect from damage the Work and adjacent
property. All loss or damages arising out of the nature of the Work to be done under this
AGREEMENT, including, but not limited to, action of the elements, will be the responsibility of
POWER SECURE.
2.11 .2 POWER SECURE will confine its equipment, the storage of materials, and the operation of its
workers to limits shown on the Drawings or indicated by law, ordinances, permits, or directions of
CITY OF FAYETTEVILLE and will not unreasonably encumber the premises with its materials.
2.12 Responsibility of Power Secure to Act in Emergency
In emergencies affecting the safety of persons, work or property at the site and adjacent thereto, POWER
SECURE will act, without previous instructions from CITY OF FAYETTEVILLE, as the situation warrants.
POWER SECURE will notify CITY OF FAYETTEVILLE immediately thereafter. POWER SECURE will
submit the name, address, and phone number of a responsible individual or individuals who will be available
on a 24-hour basis to handle emergency problems in connection with the Work.
2.13 Equipment, Materials, and Appliances
2. 13.1 Unless otherwise stipulated, POWER SECURE will provide and pay for all materials, labor, water,
tools, equipment, heat, light, power, transportation, telephone, temporary facilities, and other
facilities, and incidentals necessary for the execution and completion of the Work. Unless otherwise
specified, all materials will be new, and both workmanship and materials will be of good quality.
2. 13.2 In selecting and/or approving equipment for installation in the project, POWER SECURE assumes
all responsibility for injury or claims resulting from failure of the equipment to comply with applicable
national, state, and local safety codes or requirements, or the safety requirements of a recognized
agency, or POWER SECURE's defective workmanship or materials.
2.14 Schedules and Progress Reports
2.14.1 The POWER SECURE must meet the schedule specified in the Scope of Services. When
requested by CITY OF FAYETTEVILLE and within 10 days prior to the start of the Work, POWER
SECURE will prepare and submit to CITY OF FAYETTEVILLE a progress schedule identifying the
completion of the Work outlined in this CONTRACT, within the deadlines and milestones
established herein.
2.14.2 During the progress of the Work, POWER SECURE will maintain material deliveries and employ
sufficient workers and equipment to accomplish the Work in conformance with the submitted
schedule or deadlines and milestones established.
2.14.3 If requested by CITY OF FAYETTEVILLE, POWER SECURE will forward to CITY OF
FAYETTEVILLE on the 20th day of each month, a summary report of the progress of the various
parts of the Work, slating the existing status, rale of progress, estimated time of completion, and
cause of delay, if any.
4of9
CONTRACT GENERAL PROVISIONS
2.14.4 If the completion of any part of the Work or the delivery of materials is behind the schedule,
POWER SECURE will submit in writing a plan for bringing the Work within the schedule. CITY OF
FAYETTEVILLE may require that one or more of the following courses of action be taken by
POWER SECURE to accelerate the schedule:
(a) Increase the working week to 6 or 7 days
(b) Increase the labor force
(c) Provide and utilize additional equipment
(d) Increase the working day to 10 hours or more.
2.14.5 POWER SECURE will remain on such accelerated work schedule until such time as, in the opinion
of CITY OF FAYETTEVILLE, the degree of completion of the Work complies with the original
schedule. All extra costs of any accelerated work schedule will be bome by POWER SECURE.
2.14.6 Failure to comply with such an accelerated work schedule may result in no further monthly
progress payments until such time as the degree of completion of the Work complies with the
approved schedule or a revised schedule has been approved by CITY OF FAYETTEVILLE.
2.15 Hazardous or Toxic Substances
If the Work under this AGREEMENT involves hazardous or toxic substances, POWER SECURE will strictly
comply with all safety or training requirements promulgated by law or regulation.
2.16 Publicity
POWER SECURE will not disclose the nature of its Work on the PROJECT or engage in any other publicity
public media disclosures with respect to this PROJECT without the prior written consent of CITY OF
FAYETTEVILLE.
2.17 Key Personnel
POWER SECURE will provide qualified personnel to perform its Work. Within 10 days of execution of this
CONTRACT or receipt of a written authorization to proceed, POWER SECURE will submit a list of key
personnel, including a designated project manager or superintendent, if requested by CITY OF
FAYETTEVILLE. POWER SECURE will not change or reassign any of the designated key personnel without
the written approval of CITY OF FAYETTEVILLE.
2.18 Copies of Data
One legible copy each of all notes, field notes, drilling logs, sample classifications, drawings, including
record drawings, prints, plans, and other applicable documents prepared under the terms of this
CONTRACT will be delivered by POWER SECURE to CITY OF FAYETTEVILLE upon completion of the
Work and prior to final payment under 1 .3 above.
2.20 Access to Records
POWER SECURE will maintain accounting records, in accordance with generally accepted accounting
principles and practices, to substantiate all invoiced amounts. Said records will be available for examination
by CITY OF FAYETTEVILLE during POWER SECURE's normal business hours for a period of 3 years after
POWER SECURE's final payment to the extent required to verify the costs incurred hereunder.
2.21 Suspension of Work
POWER SECURE will, upon written notice from CITY OF FAYETTEVILLE, suspend, delay or interrupt all or
a part of the Work. In such event, POWER SECURE will resume the Work upon written notice from CITY OF
FAYETTEVILLE, and an extension of time and/or an equitable adjustment in compensation, if appropriate,
will be mutually agreed upon.
2.22 Performance and Payment Bonds
5of9
CONTRACT GENERAL PROVISIONS
POWER SECURE will furnish Performance and Payment Bonds; each in an amount equal to the total
compensation under this CONTRACT, as security for compliance with the provisions of this AGREEMENT.
All bonds will remain in effect for at least a year after final payment and will be in a form and from a bonding
company acceptable to CITY OF FAYETTEVILLE. All .bonds will be filed with the County Clerk's office for
Washington County, Arkansas before beginning work on the project.
ARTICLE 3. OBLIGATIONS OF CITY OF FAYETTEVILLE
3.1 Changes
3.1 .1 CITY OF FAYETTEVILLE may, by written order, make changes, revisions, additions, deletions
(collectively hereinafter called "changes") in the Work. POWER SECURE will not proceed with any
proposed changes unless notified to proceed in writing by CITY OF FAYETTEVILLE.
3.1 .2 Nothing herein will be construed as relieving POWER SECURE of its obligations to perform the
Work, including without limitation the failure of the parties to agree upon POWER SECURE's
entitlement to, or the amount of, any adjustment in time or compensation.
3.1 .3 Any claim by POWER SECURE for an adjustment under this Article must be asserted in writing,
fully supported by factual information, to CITY OF FAYETTEVILLE within 30 days from the date of
receipt by POWER SECURE of the written change authorization from CITY OF FAYETTEVILLE or
within such extension of that 30-day period as CITY OF FAYETTEVILLE, in its sole discretion, may
grant in writing at POWER SECURE's request prior to expiration of said period..
3. 1 .4 If the Work is reduced by changes, such action will not constitute a claim for damages based on
loss of anticipated profits.
3.2 Observation of the Work
CITY OF FAYETTEVILLE reserves the right, but not the obligation, to inspect or otherwise evaluate the
Work during the various stages to observe the progress and quality of the Work and to determine, in
general, if the Work is proceeding in accordance with the intent of this CONTRACT. CITY OF
FAYETTEVILLE will not be required to make comprehensive or continuous inspections to check quality or
quantity of the Work. Visits and observations made by CITY OF FAYETTEVILLE will not relieve POWER
SECURE of its obligation to conduct comprehensive inspections of the Work, to furnish materials, to perforin
acceptable Work, and to provide adequate safety precautions in conformance with this CONTRACT.
3.3 Limitations of CITY OF FAYETTEVILLE's Responsibilities
CITY OF FAYETTEVILLE will not be responsible for POWER SECURE's means, methods, techniques,
sequences or procedures of the Work, or the safety precautions including compliance with the programs
incident thereto. CITY OF FAYETTEVILLE will not be responsible for POWER-SECURE's failure to perform
the Work in accordance with this CONTRACT.
3.4 CITY OF FAYETTEVILLE's Right to do Work
If POWER SECURE, in the opinion of CITY OF FAYETTEVILLE, neglects to prosecute the Work properly or
neglects or refuses at its own cost to take up and replace Work rejected by CITY OF FAYETTEVILLE, then
CITY OF FAYETTEVILLE will, without prejudice to any other right which CITY OF FAYETTEVILLE may
have under this CONTRACT, take over that portion of the Work which has been improperly executed and
make good the deficiencies and deduct the cost thereof from the payments then or thereafter due POWER
SECURE.
3.5 Furnished Data
CITY OF FAYETTEVILLE will provide POWER SECURE technical data in its possession, including, but not
limited to, previous reports, maps, surveys, borings, and other information relating to POWER SECURE's
Scope of Work. POWER SECURE may reasonably rely upon the accuracy of the information provided by
CITY OF FAYETTEVILLE. Nothing in this clause relieves POWER SECURE of its responsibility to obtain
any other data required for the execution of the Work.
ARTICLE 4. GENERAL LEGAL PROVISIONS
6of9
CONTRACT GENERAL PROVISIONS
4.1 Proprietary Information
Except as otherwise authorized in writing by CITY OF FAYETTEVILLE, all drawings, specifications,
technical data, and other information furnished to POWER SECURE or developed by POWER SECURE or
others in connection with the Scope of Work are, and will remain, the property of CITY OF FAYETTEVILLE,
and may not be copied or otherwise reproduced or used in any way except in connection with the Scope of
Work, or disclosed to third parties or used in any manner detrimental to the interest of CITY OF
FAYETTEVILLE.
4.2 Claims for Extra Work
In any case where POWER SECURE deems additional compensation will become due, POWER SECURE
will notify CITY OF FAYETTEVILLE, in writing, of its intention to make claim for such compensation before it
begins the Extra Work on which it bases the claim. If such notification is not given or POWER SECURE fails
to keep strict account of actual cost, then POWER SECURE hereby agrees to waive the claim for such
additional compensation. Such notice by POWER SECURE, and the fact that CITY OF FAYETTEVILLE has
kept account of the cost, will not be construed as proving the validity of the claim. Claims for additional
compensation will be made in detail and submitted, in writing, to CITY OF FAYETTEVILLE within 10 days
following completion of that portion of the Extra Work for which POWER SECURE bases its claim. In case
the claim is found to be just, it will be allowed and paid for as provided in this CONTRACT.
4.3 Assignment
Neither party shall have the power to or will assign any of the duties or rights or any claim arising out of or
related to this CONTRACT , whether arising in tort, contract or otherwise, without the written consent of the
other party. Any unauthorized assignment is void and unenforceable. These conditions and the entire
CONTRACT are binding on the heirs, successors, and assigns of the parties hereto.
4.4 Termination
4.4.1 Termination for Convenience
All or part of this CONTRACT may be terminated by CITY OF FAYETTEVILLE for its convenience.
In such event, POWER SECURE will be entitled to compensation for Work competently performed
up to the date of termination and reasonable termination expenses as determined within the
discretion of CITY OF FAYETTEVILLE. POWER SECURE will not be entitled to compensation or
profit on Work not performed.
4.4.2 Termination for Default
CITY OF FAYETTEVILLE may, by written notice, terminate the whole or any part of this
CONTRACT for default in the event that POWER SECURE fails to perform any of the provisions of
this CONTRACT, or fails to make progress as to endanger performance of this CONTRACT in
accordance with its terms, or, in the opinion of CITY OF FAYETTEVILLE, becomes financially or
legally incapable of completing the Work and does not correct such to CITY OF FAYETTEVILLE's
reasonable satisfaction within a period of 7 days after receipt of notice from CITY OF
FAYETTEVILLE specifying such failure. If, after notice of termination, it is determined for any
reason that POWER SECURE was not in default or that the default was excusable, the rights and
obligations of the parties will be the same as if the notice of termination had been issued pursuant
to "TERMINATION FOR CONVENIENCE" In the event of termination for default, POWER
SECURE will not be entitled to termination expenses.
4.4.3 Regardless of the cause of termination, the POWER SECURE shall deliver to CITY OF
FAYETTEVILLE legible copies of all completed or partially completed work products and
instruments of service and all materials and equipment previously paid for by CITY OF
FAYETTEVILLE.
4.4.4 The rights and remedies of CITY OF FAYETTEVILLE provided in this Article will not be exclusive
and are in addition to any other rights and remedies provided by law or equity or under this
CONTRACT.
4.5 Time of the Essence
749
CONTRACT GENERAL PROVISIONS
Time is of the Essence with respect to POWER SECURE's performance of the Work.
4.6 Delays and Extension of Time
4.6.1 If POWER SECURE intends to file a claim for extension of time for a delay, it will, within 48 hours
of the occurrence, give written notice of claim to CITY OF FAYETTEVILLE stating the circum-
stances, the possible extension involved, and the reasons for the claim. Within 7 days after the
cause of delay has been remedied, POWER SECURE will give written notice to CITY OF
FAYETTEVILLE of the actual time extension requested.
4.6.2 Within 15 days after POWER SECURE submits to CITY OF FAYETTEVILLE a specific written
request for an extension of time, CITY OF FAYETTEVILLE will make the final decision on the
request for extension of time.
4.6.3 No extension of time will be considered for weather conditions normal to the area in which the Work
is being performed. Unusual weather conditions, if determined by CITY OF FAYETTEVILLE to be
of a severity that would stop all progress of the Work may be considered as cause for an extension
of completion time.
4.6.4 Delays in delivery of equipment or material purchased by POWER SECURE or its
SUBCONTRACTORS (including CITY OF FAYETTEVILLE-selected equipment) or failure of
POWER SECURE or its SUBCONTRACTORS to perform will not be considered as a just cause for
delay. POWER SECURE will be fully responsible for the timely ordering, scheduling, expediting,
delivery, and installation of all equipment and materials.
4.7 Liquidated Damages
Should POWER SECURE fail to complete the Work or any part thereof within any time agreed upon in this
CONTRACT, with any authorized extensions, POWER SECURE will reimburse CITY OF FAYETTEVILLE
for the additional expense and damage for each calendar day, Sundays and legal holidays excluded, that
the Work remains incomplete after the CONTRACT completion date. It is agreed that the amount of such
additional expense and damage incurred by reason of failure to complete the Work is that stipulated in this
CONTRACT. The said amount is hereby agreed upon as a reasonable estimate of the damages that will
probably ensue or be incurred by the CITY OF FAYETTEVILLE in the event that POWER SECURE fails to
meet the completion date. It is expressly understood and agreed that this amount is not to be considered in
the nature of a penalty, but as liquidated damages that have accrued against POWER SECURE. CITY OF
FAYETTEVILLE will have the right to deduct such damages from any amount due or that may become due
POWER SECURE, or the amount of such damages will be due and collectible from POWER SECURE.
4.8 Waivers
No waiver by either party of any default by the other party in the performance of any provision of this
CONTRACT will operate as or be construed as a waiver of any future default whether like or different in
character.
4.9 Jurisdiction
The law of the state of Arkansas shall govern the validity of this CONTRACT, its interpretation and
performance, and any other claims related to it.
4.10 Severability and Survival
If any of the provisions contained in this CONTRACT are held invalid, illegal, or unenforceable, the
enforceability of the other remaining provisions shall not be affected or impaired thereby. Limitations of
liability, indemnities, and other express representations shall survive termination of this CONTRACT for any
cause.
4.11 Force Majeure
Neither party to this CONTRACT will be liable to the other party for delays in performing the Work, or for the
direct or indirect cost resulting from such delays, that may result from acts of God, acts of governmental
authorities, extraordinary weather conditions or other natural catastrophes, or any other cause beyond the
8of9
n
CONTRACT GENERAL PROVISIONS
reasonable control or contemplation of either party. Each party will take reasonable steps to mitigate the
impact of any Force Majeure.
4.12 Authorization to Proceed
Execution of this CONTRACT by CITY OF FAYETTEVILLE will be authorization for POWER SECURE to
proceed with the Work unless otherwise provided for in this CONTRACT.
4.13 No Third-Party Beneficiaries
This AGREEMENT gives no rights or benefits to anyone other than POWER SECURE and CITY OF
FAYETTEVILLE, and has no third-party beneficiaries.
4.14 Work
The word "Work" will include all material, labor, tools, and all appliances, machinery, and transportation,
necessary to perform and complete the Scope of Work, and such additional items not specifically indicated
or described that can be reasonably inferred as belonging to the item described or indicated and as required
by good practice to provide a complete and satisfactory system. As used herein, "provide" will be
understood to mean "furnish and install, complete in-place."
9of9