HomeMy WebLinkAbout52-80 RESOLUTION•
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RESOLUTION NO.
WCROWAS)
A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK
TO EXECUTE A CONTRACT WITH BLACK & VEATCH, CONSULTING
ENGINEERS, FOR A COMPREHENSIVE WATER AND WASTE WATER
RATE STUDY.
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY
OF FAYETTEVILLE, ARKANSAS:
That the Mayor and City Clerk are hereby authorized and
directed to execute a contract with Black & Veatch Consulting
Engineers for a comprehensive water and waste water rate study.
A copy of the contract authorized for execution hereby is
attached hereto marked Exhibit
and made a part hereof.
PASSED AND APPROVED this J7 day of
,ATTEST:
City Clerk
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APPROVED:
, 1980.
ASSISTANT MAYOR
"mma,
CERTIFICATE OF RECORD
State of Arkansas
SS
City of Fayetteville (
1, Bonnie Goering,, City Clerk and Ex -Officio
recorder for the City of Fayetteville, do here-
by certify that the annexed er foregoing is
of record M my office and the same ap-
pears in Ordinance CD Resolu2on book
"t pageWitncsa rty
al this c2 ti day of
19 0
hand and
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,410 ag_ael ,
Air
Jaw
City Clerk and Ex -Officio Record"
6717780 •
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WATER AND WASTEWATER RATE STUDY • , 195
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Assistant Mayor Noland noted that this resolution would authorize the execution 395.1
of the contract with Black & Veatch Consulting Engineers which had been approved at
the June 3 meeting, and City Attorney McCord pointed out that Section II of the con-
tract should specify the engineer's standard rates.
Director Henry, seconded by Osborne, moved to authorize the execution of the 395.2
contract with Section II_amended to specify the engineer's standard rates
recorded vote was:
Ayes: Henry, Lancaster, Noland, Osborne, Sharp
Nays:. None
The Assistant Mayor -declared the resolution passed. Pi°
e".9
016Ce
RESOLUTION NO. 52-80 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK VIII.
CONDEMNATION AUTHORIZATION/HWY 62 WEST
0 City Manager Grimes said that a resolution authorizing the initiation of condem- 395.3
QJ nation proceedings on three properties in connection with the Highway 62 widening and
O utility relocation projects was routine. Director Lancaster, seconded by Sharp,
< moved to authorize the condemnation proceedings on the following property owners:
Thomas H. and Dorothy Ward, Floyd E. and Betty D. Gabbard, and Ray E. and Addie Lee
Lister.
Mr. Floyd Gabbard expressed concern that four Chinese Elm trees on his property 395.4
would be damaged, and Grimes said the trees would be taken into consideration with
the assessment of the value of the easement. There being no further discussion, the
recorded vote on the resolution was:
Ayes: Henry, Lancaster, Noland, Osborne, Sharp
Nays: None
The Assistant Mayor declared the resolution passed.
RESOLUTION NO. 53-80 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK VIII.
ALLEY CLOSING/NORTH OF HWY 62 WEST, BETWEEN RAZORBACK RD. & LEWIS AVE.
The City Attorney read an ordinance closing and vacating three unopened alleys, 395.5
running east and west, one block north of Hwy 62 West, between Razorback Road and
Lewis Avenue. He explained that this ordinance would vacate any interest the City
may have in this alley and that the City Engineer has reserved a utility easement.
Director Henry, seconded by Lancaster, moved the rules be suspended and the 395.6
ordinance be placed on second reading. The recorded vote was:
Ayes: Henry, Lancaster, Noland, Osborne, Sharp
Nays: None
The Assistant Mayor declared the motion passed and the City Attorney read the
ordinance for the second time.
Director Osborne, seconded by Henry, moved the rules be further suspended and 395.7
the ordinance be placed on third and final reading. The recorded vote was:
Ayes: Henry, Lancaster, Noland, Osborne, Sharp
Nays: None
The Assistant Mayor declared the motion passed and the City'Attorney read the ordi-
nance for the third and final time.
There being no further discussion, Assistant Mayor Noland asked if the ordinance 395.8
should pass. The recorded vote was:
Ayes: Henry, Lancaster, Noland, Osborne, Sharp
Nays: None
The Assistant Mayor declared the ordinance passed
ORDINANCE NO 2641.APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK VIII.
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CONTRACT FOR ENGINEERING SERVICES
THIS CONTRACT, executed in duplicate this /704day of
between Fayetteville, Arkansas, hereinafter called th
Veatch,vConsulting Engineers of Kansas City, Missouri,
called the Engineers:
, 191g,
OCihtitly2 and Black &
hereinafter
WHEREAS: The Engineers have proposed to prepare a comprehensive water
utility rate study and analyses concerned with the adequacy of revenues
resulting from the existing schedules of rates and the development of
recommended rate schedules to meet projected costs of providing service.
WHEREAS: The Engineers have proposed to prepare a wastewater utility
service charge study concerned with the adequacy of revenues resulting
from the existing schedules of charges and the development of recommended
schedules of charges to meet projected future costs of providing service.
WITNESSETH: That in consideration of the mutual covenants herein contained,
the City hereby agrees to employ the Engineers to perform the services
hereinafter outlined in connection with separate studies and reports for
the water and wastewater utilities on financial analysis, cost of
service, and rate matters, and agrees to pay them for such services
according to the schedule of fees herein contained.
SECTION I - SCOPE OF SERVICES
The services which the Engineers agree to perform are as follows:
A. Water Rate Study
1.
Revenue and Revenue Requirements
a. Analyze service area growth and water use, taking into
account climatic and other local conditions. Project
future customers served, water sales volumes, and revenues
which may be reasonably expected for a 3 to 5 year study,
period based on past records of numbers and types of
customers served, historical water use by customer class,
and revenues received under existing rates. Ascertain
the degree to which water sales and revenues have been
abnormally high or low so that future projections may
reflect normal conditions.
b. Analyze past water system operating expenses and project
future operating costs by recognizing increases in the
number of customers'served, water requirements, and the
effects of continuing inflation on cost levels.
'EXHIBIT A
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c. Develop a financing plan to meet proposed water utility
capital improvement requirements. Project debt service
requirements for principal and interest payments and
reserves on existing and any proposed bond issues.
d. Study projected annual revenue requirements on a basis of
total cash needs, including operating expenses, debt
service requirements, cost of routine annual capital
expenditures, and any other requirements for revenue.
e. Supervise the preparation of a water bill analysis for a
recent 12 month period. Meet with'appropriate City
officials and staff familiar with existing billing procedures
to outline the intent, purpose, and general procedures
involved in the analysis. Establish the 12 month period
to be analyzed, the format in which the billing data can
be compiled, and the most feasible procedure by which the
City might accomplish the desired analysis based on
existing billing methods, data, and facilities.
2. Cost of Service Analysis
a. Allocate total requirements for revenue, or cost of
service, to functional cost components of volume, peak
demands and customer elements to provide a basis for
determining the unit costs of service.
b. Estimate the relative responsibility of each customer
class for system capacity, total volumes required, and
customer elements based upon local experience and conditions.
Customer classes may include residential, commercial,
industrial, municipal, wholesale service, public fire
protection, and any other appropriate service group.
c. Distribute the functional costs of service to the various
customer classifications on the basis of estimated service
requirements for each class.
d. Compare revenues expected from each customer class under
the existing rate schedule with the distributed functional
cost of service to determine the adjustment in revenues
for each classification required to reasonably distribute
total cost of service to customers served.
3. Rate Design
ka. Design water rate schedules to recover revenues from
customer classes generally in accordance with costs of
service. Recognize practical aspects of historical
practice and the City's policy in the recommended rate
adjustments.
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b. Prepare a schedule of typical bills under proposed rates
for selected meter size and water sales in each class of
customers.
c. Compare revenues under cost of service rates to revenue
requirements, showing the flow of funds during the study
period.
B. Wastewater Service Charge Study
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1. Revenue and Revenue Requirements
a. Study the present wastewater service area. Project
future wastewater volumes and revenues, for a study
period encompassing the first years operation of new
facilities but not to exceed five years, based on historical
records of the number and type of customer served, historical
wastewater volumes by customer class, and revenues received
under current rate schedules. Base projections of sewage
volumes and revenues on normalized conditions, recognizing
adjustments required for water sales to which wastewater
service charges are not applicable as well as sewage
volumes from sources other than water sales.
b. Analyze historical system operating expenses and project
future operating costs recognizing growth in the service
area and the effects of continuing inflation on cost
levels.
c. Develop a financing plan for the proposed capital improvements
program of the sewerage system. Project debt service
requirements for principal and interest payments and
reserves on existing and any proposed bond issues required.
d. Project total annual revenue requirements of the wastewater
utility for the study period, including operating expenses,
debt service requirements, normal annual replacements and
system additions, and any other payments as required.
Determine the adequacy of estimated revenues to meet
requirements on a year by year basis for the study period.
Determine the need and extent of any overall revenue
level adjustments.
e. Supervise the preparation of a wastewater bill analysis
for a recent 12 month period. Meet with appropriate city
officials and staff familiar with existing billing
procedures to outline the intent, purpose, and general
procedures involved in the analysis. Establish the 12
month period to be analyzed, the format in which the
billing data can be compiled, and the most feasible
procedure by which the City night accomplish the desired
analysis based on existing billing methods, data, and
facilities.
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2. Cost of Service Analysis
a. Allocate total revenue requirements, or cost of service,
to functional cost components related to wastewater
volume, strength, infiltration/inflow, and customer
elements. Develop unit costs of service applicable to
all customer classes served.
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b. Based on available data from the City and the experience
of other utilities, estimate the relative responsibility
of each customer group, or customer class, for wastewater
volumes delivered, contributed strengths, infiltration/inflow,
and customer cost. Customer classes may include residential,
commercial, industrial, municipal, and any other distinguishable
group.
c. Distribute the costs by functional component to the
various customer classifications based on relative service
requirements. Guidelines of the Environmental Protection
Agency (EPA), in effect at the time of the authorization
to proceed, will be recognized in developing cost of
service allocations.
d. Compare revenues expected from each customer class with
the allocated costs of service, to determine the adequacy
of present revenue levels from each class. Determine the
adjustment in revenues required to reasonably distribute
costs of service to respective classes.
3. Service Charge Design
a. Develop a schedule of wastewater service charges which
will reasonably recover revenue from the various classes
of customers in proportion to total costs• of providing
service to each class. Charges to customers are to be
consistent with general policy established by the City
and current Federal requirements.
b. Develop unit charges recognizing EPA rules and regulations
for user charge and industrial cost recovery as of the
date of the authorization to proceed.
c. Prepare a schedule of typical bills under proposed charges
for selected meter size and volumes in each class of
customers.
d. Compare revenues under cost of service charges to revenue
requirements, showing the flow of funds during the study
period.
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C. Presentation of Findings
1. Prepare a letter report summarizing the preliminary findings
of water and wastewater revenue requirements and present the
findings to City representatives on a date agreeable to both
parties. Based on conclusions reached, the City may wish to
pursue additional study areas; however, such studies are
beyond the scope of this agreement.
2. Upon completion of the rate studies, prepare separate preliminary
reports summarizing revenue requirements,.cost allocations,
and rate design for the water and wastewater utilities and
present the findings in person to City representatives on a
date agreeable to both parties.
3. Upon receipt of review comments from the City, revise the
preliminary reports, if necessary, before submitting 20 copies
of each final report.
4. Included in the maximum payments limit is one appearance by
the Engineers before the City Council to explain the studies'
findings.
SECTION II - COMPENSATION
A. Water Rate Study
1. For the services set forth in SECTION IA and the water related
portion of SECTION IC, the City agrees to pay an amount based
upon the Engineers' itemized monthly statements within thirty
(30) days after date of billing. The total of the monthly
payments shall not exceed a maximum payments limit of THIRTY-
TWO THOUSAND SEVEN HUNDRED DOLLARS ($32,700) except that
additional work may be authorized by the City.
2. The Engineers shall render an itemized monthly statement to
the City for work performed and costs incurred during the
preceding month on the following basis of charges:
All Personnel Payroll Costs x 2
Payroll Costs Defined
Reimbursable Expenses
Actual Salary Costs
Plus 25% for Overhead
Actual Cost on
Engineer's Standard
Rates
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B. Wastewater Service Charge Study
1. For the services outlined in SECTION IB and the wastewater
portion of SECTION IC, the City agrees to pay the Engineers a
cost-plus fixed fee payment which shall include direct salary,
actual overhead, other indirect costs, direct expenses, and
fixed fee. The total fixed fee for the study shall be $3,200.
The total of the monthly payments shall not exceed TWENTY-FOUR
THOUSAND SIX HUNDRED DOLLARS ($24,600) without further authorization.
2. Cost shall mean salary, salary times a multiplier to cover
actual overhead and other indirect costs, plus reimbursable
expenses at actual cost. The multiplier to cover actual
overhead and facilities capital cost of money shall be 0.92908.
This multiplier shall apply until June 26, 1980. The multiplier
shall be changed annually on June 27 to agree with actual
overhead and other indirect costs of the Engineers during the
previous calendar year.
3. Reimbursable expenses and direct costs shall be actual out-of-
pocket travel and subsistence expenses of personnel engaged in
this work while away from the office of the Engineers and all
other direct out-of-pocket costs for printing, long distance
telephone, computer time charges, copying and other incidental
costs expended in connection with this work, including any
work performed by a subcontractor for the Engineers.
4. The City agrees to make monthly payments to the Engineers,
within thirty (30) days after the date of billing, for the
services rendered under this contract on the basis of statements
submitted each month. Statements shall be accompanied by
adequate itemization to fully indicate the basis of charges.
C. Additional Services
1. The maximum payments limits for the water and wastewater
studies outlined above shall not be exceeded unless additional
meetings, appearances, or studies are required and specifically
authorized by the City. Such supplemental services shall be
furnished on the basis of charges set forth in SECTION II,
Paragraph A2, except that they will not be included in the
stated maximum payments limits for either study.
2. For additional services, the City agrees to pay the Engineers,
within thirty (30) days after date of billing, the amount due
for such services rendered during the month.
SECTION III - MUTUAL UNDERSTANDING
It is mutually understood and agreed:
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A. That the City will provide, at its own expense, the following
items:
1. For both the water and wastewater utilities, a tabulation of
bills, by customer class and water usage or wastewater volumes
for a period of 12 months, prepared under the supervision of
and in a manner suitable for use by the Engineers.
2. Water and wastewater capital improvements programs for the
study period. Programs will describe each item of improvement,
including estimated costs and anticipated dates of construction.
3. Furnish available data on industrial wastewater volume and
strength characteristics as a basis for estimates of expected
industrial waste loadings on the wastewater system.
4. Make available to the Engineers any financial records, annual
operating or other reports, audits, maps, existing and proposed
tables of organization, and other data or information available
in the City's files as may be needed to complete the studies.
5. Provide policy direction on such matters as the City considers
appropriate and expeditiously review preliminary reports to
permit the timely completion of the studies.
B . That, if additional services not specifically provided for in this
contract are to be performed, written approval of the City must be
given.
C. That the Engineers shall perform the work under this contract in a
competent, timely and professional manner. The Engineers shall not
be liable for delays resulting from causes beyond the reasonable
control of the Engineers; that the Engineers have made no warranties,
expressed or implied, which are not expressly set forth in this
contract; and that under no circumstances will the Engineers be
liable for indirect damages.
D . That Appendix C-1 as published in the Federal Register on December 29,
1976 is made a part of this contract
E . That any notice or communications between the Engineers and the
City and required to be given under the terms of this contract,
shall be in writing and shall be deemed to have been sufficiently
given when sent by prepaid United States mail to the other party at
the addresses stated below:
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Mr. Don Grimes
;City Manager
• City of Fayetteville
P. 0. Drawer F
Fayetteville, Arkansas 72701
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2. Mr. J. R. Brown
Black & Veatch, Consulting Engineers
P. 0. Box 8405
Kansas City, Missouri 64114
SECTION IV
IN WITNESS WHEREOF, the parties hereto have executed this contract this
/7day of 1„4„1.,„.1L, , 1980.
A ATTEST:
44,..EtTY
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" II. 5:37 /LA a At
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CLERK
CITY OF FAYETTEVILLE, ARKANSAS
By
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BLACK & VEATC , CONSULTING ENGINEERS
By
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.• or data noecurrent(ks certified in his certifi-
• cation of current cost or pricing data (EPA
. form 5700-41), then such price, cost.. or
profit shall be reduced accordingly and the
. agreement shall be modified in writing to
reflect such reduction.
OD Failure to agree on a reduction shall
be subject to the remedies clause of this
agreement.
(Note.—Since the agreement is subject to
reduction under this clause by reason of de-
.•fective cost or .pricing data .submitted in
connection with certain subcontracts, Vic
engineer •may wish to include c clause in
each such subcontract requir:ng the subcon-
. . tractor to appropriately indemnify the
cthi-
neer. It ft also expected that any subcontrac-
- . tor subject to such indemnification will gen-
erally require substantially sintilar indemni-
fication for defective cost or pricing data re-
quired to be submitted by his lower tier sub;
'contractors)
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, 11. 3013CONTRACTS . .
• • (a) Any subcontractors and outside asso-
ciates or consultants required by the engi-
neer in connection with services under this
• agreement will be limited to such individ-
• uals or firms as were specifically.identified
and agreed to during negotiations, or as the
owner specifically authorizes during the
perforrnance of this agreernent. The owner
must give prior approval for any substitu-
tions in or additions to such subcontractors,
associates, or consultants.
(b) The engineer may not subcontract ser-
vices in excess of thirty (30) percent (or
percent. if the owner and the engi-
neer hereby agree) of the contract price to
• subcontractors 6r consultants without the
owner's prior written approval.
12: LABOR STANDARDS
To the extent that this agreement In-
volves "COPISCTIICUOD" (as defined by the
Secretary of Labor). the engineer agrees
that such construction work shall be subject
to the following labor standards provisions.
to the extent applicable: • •
(a) Davis-T3acon Act. (40 U.S.C. 276a -
276a -7):
(b) Contract Work Hours and Safety
Standards Act (40 U.S.C. 327-333):
Cc/Copeland 'Anti -Kickback Act (18 U.S.C.
874): and
(d) Executive Order 11246 (Equal Employ-
ment Opportunity):
and litiplementing "rules, regulations. and
relevarit orders of the Secretary of Labor or
EPA_ The engineer further agrees that this
agreement shall include and be subject to
the "Labor Standards Provisions for Feder-
ally Assisted Construction Contracts" (EPA
/dna 5720-4) In effect at the time of execu-
tion of this agreement.
13. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with EPA policy as ex-
pressed• In 40 CFR 30.420-5. the engIneer
agrees that he will not discriminate against
any employee or applicant for employment
because of race, religion. color, sex. age, or
national origin.
. 11. Pintas -rims OF SMALL AND MINORITY
BUSINESS
In accordance with EPA policy as ex-
pressed In 40 CFR 35.036-7, the engineer
agrees that qualified small business and mi-
nority business enterprises shall have the
maximum practicable opportunity to par-
ticipate In the performance of EPA grant•
aSsIsted contracts and subcontracts.
15. COVENANT AGAINST CONTINGENT PEES
The engineer warrants that no person or
selling agency has been employed or re-
tained to solicit or secure this contract upon
an agreement. or understanding for a com-
mission, percentage, brokerage. or contin-
gent fee, excepting bona fide employees. For -
breach or violation of this warranty the
owner shill have the right to annul this
agreement without liability or In •its discre-
tion to deduct from the contract price or
consideration, or otherwise recover, the full
amount of such commission, percentage,
brokerage. or contingent. fee.
16. GRATUITIES
(a) If It Is found, after notice and hearing.
by the owner that the engineer. or any of
the engineer'sagents or representatives. of-
fered or gave gratuities (in the form of. en-
tertainment. gifts. or otherwise), to any off'•
cial, employee, or agent of the owner, of the
State, or of EPA -in an attempt to secure a
contract or favorable treatment in award.
Ing. amending. or making any, determina-
tions related to- the performance of this
agreement, the •owner may.. by written
notice to the engineer. terminate the right
of the engineer to proceed under this agree-
ment. The ovmer may also pur§ue other
rights and remedies that the law or this
agreement provides. However, the existence
of the facts upon which the Owner bases
such findings shall be in issue and may be
reviewed in proceedings under the remedies
clause of this agreement.
(b) In the event this agreement Is termi-
nated -as provided in Paragraph (a) hereof,
th:shall Is: __1•.•,1. (13 71-0 puisue
the same remedies against the engineer as it
could pursue In the event of a breach of the
contract by the engineer, and (2). as a penal-
ty, in addition to any Other damages to
which it may be entitled by law, to exempla-
ry damages M an amount (as determined by
the owner) which shall be not less than 3
nor more than 10 times the costs the engi-
lleet IDCUTS in providing any such gratuities
to any such officer or employee.
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17. PATENTS
If this agreement invokes research, devel-
opmental, experimental. or demonstration
work and any discovery or -invention arises
or -Ls developed in the course of or under
this agreeme.nt, such imiention or discovery
shall be subject to the reporting and rights
provisions of subpart D of 40 CFR part 30.
In effect on the date of execution of this
agreement, including appendix 8 of part 30.
In such case, the engineer shall report the
discovery or invention to EPA directly or
through the owner, and shall otherwise
comply with the owners responsibilities in
accordance with subpart D of 40 CFR part
30. The engineer agrees that the disposition
of rights to inventions made under this
agreement shall be in accordance with the
terms and conditions of appendix B. The en-
gineer shall inclOde appropriate patent proi.
visions to achieve the purpose of this condi-
tion in all subrontracts involving research,
devcloprnent7.I. experimental. or denionstra-
Lion work.
113. COPYRIGHTS AND RIGHTS IN DATA
(a) The engineer agrees that any plans,
drawings. designs, specifications. computer
programs (which are substantially Pald for
with EPA grant funds), technical reports,
operating manuals, and other work submit-
ted with a step I facilities. plan or with a
step 2 or step 3 grant application or which
are specified• to • be delivered under this
agreement or which are developed or pro.
duccd and paid for under this agreement
(referred to In this clause as "Subject
Data") are subject to the rights In the
United States. as set forth In subpart D of
40 CFR part 30 and In appendix C to 90
CFR part 30, In effect on the date of execu-
tion of this agreement. These rights include
the right to use. duplicate, and disclose such
subject data, In whole or in part, in any
manner for any purpose .whatsoever, and to
have others do so. For purptises of this
clause. "grantee" as used in appendix C
refers to the engineer. If the material Is co.
pyrightable, the engineer may copyright
as appendix C perrnits, subject to the rights
Ln the Government In appendix C, but the
owner and the Federal Government reserve
a royalty -free, nonexclusive, and irrevocable
license to reproduce, publish, and use such
materials, In *hole or In part, and to audio.
rite others to do so. The engineer shall in-
clude appropriate provisions to achieve the
purpose of this condition In all subcontracts
expected to produce copyrightable subject
data.
(b) All such subject data furnished by the
engineer pursuant to this agreement arc in. -
struments of his services in respect of the
project. It is understood that the engineer
does not represent such subject data to be
suitable for reuse on any other. project or
Mr any other purpose. If the owner reuses.
the subject data without the engineer's spe-
cific written verification or adaptation, 'such
reuse will be at'the risk of the ov.-ner, with-
out liability to the engineer. Any such ver-
IfiCation or adaptation will entitle the engi-
neer to furthercompensation at rates
agreed upon by the owner and the engineer.
FEDERAL REGISTER, VOL. 43, /.10. 188—WEDNESDAY, SEPTEMBER 27, 1970
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APPTNDI X C-1—RPGNI/RED PROVISIONS—
CONSULTING Escraaraine AGP.EL-rdENTS
1. General'
2. Responsibility of the Engirv:er
3. Scope of Work
4. Changes
5. Termination
6. Remedies
7. Payment
8. Project De.sIgn
Ilk Audit; Access to Records
10. Price Reduction for Defective Cost or
Pricing Data
11. Subcontracts
12. Labor Standards
13. Equal Employment Opportunity
14. IRILizatioti of Small or Minority Busi-
ness
15. Covenant Against Contingent -Fees
16. Gratuities .
17. Patents
18. Copyrighti and Rights in Data
• I. GENERAL
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• (a) The owner and the engineer agree that
the following provisions apply to the EPA
grant -eligible work to be perfonned tinder
this agreement and that such provisions su-
persede any conflicting provisions of this
agreement.
(b) •The work under this agreement is
funded in part by.a grant frorn the U.S. En-
vironmental Protection Agency. Neither the
'United States nor the 17.S. Environmental
Protection Agency (hereinafter, "EPA") is a
party to this agreement. This agreement
which covers p -ant -eligible work Is subject
to regulations contained in 40 Cr R 3a.93o.
35.937..and 35.939 in effect on the date -of
execution of this agreement. As used in
these clauses, the words the date of execu-
tion of thIs agreeznent" mean the date of
Execution of this agreement and any subse-
quent modification of the terms, compensa:
Mon or scope of services pertinent to unper-
formed work.
• (c) The owner's rights and remedies pro-
vided in these clauses are in addition to any
other rights and remedies provided by law
or this agreement.
2. RESPONSIBILITY ENGINLTR
(a) The engineer shall be responsible for
the professional quality, technical accuracy.
timely completion. and the coordination of
alfclesigna drawings. Specifications. reports.
and other services furnished by the engi-
neer under this agreement. The engineer
shall, without additional compensation, cor-
rect or revise any errors. omissions, or other
deficiencies In his designs, drawings, specifi-
cations. reports, and other services.
(b) The engineer shalt perform such pro-
fessional services as may be necessary to ac-
complish the work required to be performed
under this agreement, in accordance with
this agreement and applicable EPA require-
ments in effect on the date of execution of
this agreement.
(c) The owner's or ETA s approval of
drawings. designs. specifications, reports,
and incidental engineering work or materi•
als furnished hereunder shall not in any
way relieve the engineer of responsibility
for the technical adequacy of his work. Nei-
ther the owner's nor EPA's review. approval
or acceptance of, nor payment for, any of
the services shall be construed to operate as
a waiver of any rights under this agreement
or of any eause of action arising out df the
performance of this agreemenL
(d) The engineer shall be and shall remain
liable. In accordance with app/icable law, for
all damages to the owner or EPA caused by
the engineer's negligent performance of any
of the services furnished under this agree.:
ment; except for errors.- omissions or other
deficiencies to the extent attributable to the•
owner. owner -furnished data or any third
party. The engineer shalt not be responsible
for any time delays in the project caused by
circumstances beyond the engineeer's cons
trol. Where innovative processes or tech-
niques (see 40 CFR 35.908) are recommend-
ed by the engineer and are used, the engi-
neer shall be liable only for gross negligence'
to the extentbf such use.
•
• S. SCOPE OP WORK •
The services to be performed by the engi-i
neer shall.include all services required to
complete the task or Step In accordance:
with applicable EPA regulations (40 CFR.
Part 35, Subpaxt Z In effect on the data of
execution of this agreement) to the extent,
of the scope of work as defined and set out
in the engineering services agreement to,
which these provisions are attached.
4. GRANGES
(a) The owner may. at any time. by writ- •
ten order make changes within the general
scope of thti agreement in the services or • .
work to be performed: If such changes cause
an increase or decrease in the engineers
cost of, or time re.quired.far. performance of
any services under this agreement, whether
or not changed by .any order, an equitable
adjustment shall be made and this agree-
ment shall be modified in wrising according-
ly. The engineer must assert any claim for
adjustment under this clause In writing
within 30 days from the date of receipt by
the engineer of the notification of change, . 7
unless the owner grants a further period of -
timobefore the &ate of final payment under
this agreement.
(b) No services for which an additional
compensation will be charged by the engi•
neer shall be furnished without the written
authorization of the owner.
(0 In the event that there is a modifica-
tion of EPA requirements relating to the
services to be performed under this agree-
ment after the date of execution of this
agreement, the increased or decreared cost
of performance of the serviees provided for
in this agreement shall be reflected in an
appropriate modification of this agreement.
a TERMINATION
(a) Either party may terminate this agree-
ment, in whole or in part, In writing. if the
other party substantially fails to fulfill its
obligations under this agreement through
no fault of the terminating party. Ilowever.
no such termination may be effected unless
the other party is given (1) not less than ten
(I0) calendar days written notice (delivered
by certified mail, return receiptrequested)
of Intent to terininate and (2) an opportuni-
ty for consultation with the terminating
party before termination.
(b) The owner may terminate this agree-
ment, in whole or in part, in writing, for its
convenience. if the termination is for good
cause (Such as for legal or financial reasons.
major changes In the work Or program re.
GuirenieriLS, initiation of a new step) and the
engineer Is given (1) not less than ten (10)
calendar days written notice (delivered by
FEDERAL REGISTER, VOL. 43, NO. 188—WEDNESDAY, SEPTEMBER 27, 7978
•
certified mail, return receipt requested) Of
Intent to terminate, and (2) an opportunity
for consultation with the terminating party
before termination.
(c) If the owner terminates for default. an
equitable adjustment in the price provided
for in this agreement shall be made. but (1)
no amount shall be allowed for anticipated
profit on unperfonned services or other
work. and (2) any payment due to the engi-
neer at the Wile of termination may be ad-
justed to the extent of any additional costa
the owner incurs because of the engineer's
default. If the engineer terminates for de-
fault or 0 the owner terminates for convert•
fence, the equitable adjustment shall in-
clude a reasonable profit for services or
other work performed. The equitable ad-
justment far any terrnlnatIon shall provide
for payment to the engineer for services
rendered and expenses Incurred before the
termination, in addition to termination set-
tlement costs the engineer reasonably
incurs relating to commitments which had
become fims before the termination.
(d) Upon receipt of a termination action
under paragraphs (a) or (b) above, the engi-
neer shall (1) promptly discontinue all ser-
vices affected (unless the notice directs oth-
erwise). and (2) deliver or otherwise make
available to the owner all data, drawings,
specifications, reports. estimates, summar-
ies, and such other information and materi-
als as the engineer may have accumulated
in performing this agreement, whether com-
pleted or In process.
(e) Upon termination under paragraphs
(a) or (b) abcive, the owner may take over
the work and prosecute the same to comple-
tion by agreement with another party or
otherwise. Any work the owner takes over
for completion will be completed at the
owners rise, ana tne owner win note narm-
less the engineer from all claims and dam-
ages arising out of improper use of the engi-
neers work.
(f) If, after termination for failure of the
engineer to fulfill contractual obligations, it
is determined that the engineer had not so
failed, the termination shall be deemed .to
have been effected for the corwenience of
the owner. In such event, adjustment of the
Price provided for In this agreement shall be
made as paragraph (c) of this clause pro-
vides.
II. REMEDIES
Except as this agreement otherwise pro-
vides, till claims, counter-clatms, disputes,
and other matters in question between the
owner and the engineer arising out of or re-
lating to this agreement or the breach of it
will be decided by arbitration lf the parties
hereto mutually agree, or in a court of com-
petent jurisdiction within the State In
which the owner is located.
7. PAYMENT
(a) Payrnent shall be made in accordance
with the payment schedule incorporated in
this agreement as soon as practicable upon
submission of statements requesting Pay-
ment by the engineer to the owner. If no
such payment schedula Is incorporated in
this agreement, the payment provisions of
paragraph (b) of this clause shall apply.
ao The engineer may request monthly
Proeress payments and the owner shall
make them as soon as practicable upon eub-
mLssion of statements requesting payment
by the engineer to the owner. When such
progress payments are made, the owner may
withhold up to ten (10) percent of the vote
chered amount until satisfactory completion
by the engineer of work and services within
a step called for under this agreement.
When the owner determines that the work
under thLs agreement or any specified task
hereunder Is substantially complete and
that the amount of retained percentages Is
In excess of the amount consgered by him
to be adequate for his protection, he shall
release to the engineer such excess arnount.
(c) No payment request made under para-
graph (a) or (b) of this clause shell exceed
the estimated amotuit and value of the work
and services performed by the engineer
under this agreement. The engineer shall
prepare the estimates of work perforrned
and shall supplement thern with such sup-
porting data as the owner may require.
(d) Upon satisfactory completion of the
work performed under this agreement, as a
condition precedent to final payment under
this agreement or to settlement upon termi-
nation of the agreement. the engineer shall
execute and deliver to the owner a release
of all claims against the owner arising under
or by virtue of this agreement. other than
such claims, if any, as may be specifically
exempted by the engineer from the oper-
ation of the release in stated amounts to be
set forth therein.
S. PROJECT DESIGN
(a) In the performance of this agreement,
the engineer shall. to the extent practicable,
provide for maximum use of structures, ma-
chines, products, materials, corestrumion
methods. and equipment which are readily
available through competitive procurement,
or through standard or proven production
techniques, methods, and processes, consist,
ClIir WA 40 CFR .35.i.i6-5azd5leeea-i5 in
effect on the date of execution of this agree-
ment, except to the extent to which innova-
tive technology may be used under 40 CFR
35.908 in effect on the date of execution of
this agreement.
(b) The engineer shall not, in the perform.
ance of the work under this agreement. pro-
duce a design or specification which would
require the use of structures, machines,
products, materials, construction methods,
equipment. or processes which the engineer
knows to be available only from a soie
source. unless the engineer has adequately
Justified the use of a sole source Ln writing.
(e) The engineer shall not. In the perform -
ranee of the work under this agreement. pro-
duce a &siert or specification which would
be restrictive in violation of sec. 204(a)(6) of
the Clean Water Act. This statute requites
that no specification for bids or statement
of work shall be written in such a manner as
to contain proprietary, exclusionary, or dis-
criminatory requirements other than those
based upon performance, unless such re-
quirements are necessary to test or demon-
strate a specific thing, or to provide for nec-
essary iaterchartgeability of parts and
equipment, or at least two brand names or
trade names of comparable quality or titility
are listed and are followed by the words "or
equal." With regard to materials. If a single
material is specified, the engineer must be
prepared to substantiate the basis for the
selection of the material.
(c) The engineer shall report to the owner
any sole -source or restrictive design or speci-
fication giving the reason or reasons why It
Is necessary to restrict the dc•ign or specie -
cation.
(e) The engineer shall not knowingly
specify or approve the performance of work
at a facility which is in violation of clean air
or water standards and which Is listed b.
the Director of the EPA Office of Federal
AcRvities under 40 CFR Part 15.
9. AUDIT; ACCESS TO RECORDS
(a) Thc engineer shall niaintain books
records, documents, and other evidence di-
rectly pertthent to performance on E?A
grant work under this agreement In accord-
anc.e with generally • accepted accounting
principles and practices consistently ap-
plied. and 40 CFR 30.605, 30.805. and 35.935-
7 in effect on the date of execution of this
agreement. The engineer shall also main-
tain the financial information and data used
by the engineer in the preparation or sup-
port of the cost submission required under
40 CFR 35.9374(b) in effect on the date of
execution of this agreement and a copy Of
the cost sure:nary submitted to the owner,
The U.S. Environmental Protection Agency,
the Comptroller General of the United
States, the U.S. Department of Labor,
owner, and /the State water pollution con-
trol agency] or any of their duly authorized
representatives shall have access to such
books, records, documents, and other m4 -
dente for inspection, audit, and copying.
The engineer will provide proper facilities
for such access and inspection.
(b) The engineer agrees to include para-
graphs (a) through (e) of this clause In all
his contracts and all tier subcontracts di-
rectly related to project Perfermanee that
are In excess of S10,000.
tc) Audits conducted under this provision
shall be in accordance with cencrally ate'
cepted auditing standards and established
procedures and guidelines of the reviewing
or audit agency(ies).
(d) The engineer agrees to the disclosure
of all information and reports resulting
from access to records under.paragraphe(a)
and (b) of this clause, to any of the agencies
referred to in paragraph (a), provided that
the engineer is afforded the opportunity for
an audit exit conference and an opportunity
to conunent and submit any supportIna doc-
umentation on the pertinent portions of the
draft audit report and that the final audit
report will Include written comments of rea-
sonable length, if any, of the engliteer.
(e) The engineer shall maintain and make
available records under paragraphs (a) and
(b) of this clause during performance on
EPA grant work under thls agreement and
until 3 years from the date of final EPA
grant payment for the project. In addition,
those records which relate to any Dispute"
appeal under an EPA grant. agreement, to
litigation, to the Settlement of claims aris-
ing out of such performance. or to costs or
Items to which an audit exception has been
taken, shall be maintained and made availa-
ble until 3 years after the date of resolution
of such appeal, litigation, claim, or excep-
tion.
10. PRICE REDUCTION FOR DEFECTIVE COST OR
PRICING DATA
(This clause is applicable if the aMount
this agreement exceeds $100,000.)
(a) If the owner or EPA determines that
any price, including profit, negotiated In
connection with this agreement or any cost
reimbursable under this agreement was in-
creased by any significant stuns because the
engineer or any subcontractor furnished in
complete or inaccurate cost or pricing (Mt.
FEDERAL REGISTER, VOL 43, NO. ISR—WEDNISDAY, SEPTEMUlt 27, 1971
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