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HomeMy WebLinkAbout142-84 RESOLUTION-0•0 - RESOLUTION ND. 142-84 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AMENDMENT 10 THE CITY'S BASIC AGREEMENT WITH CH2M HILL SOUTHEAST, INC., DATED JULY 20, 1983, INCLUDING TASK ORDER NO. 2, FOR IMPROVEMENTS TO THE CITY'S WASTEWATER TREATMENT PLANT TO INCORPORATE CONTRACT REQUIREMENTS IMPOSED BY THE ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVI'1E, ARKANSAS: That the Mayor and City Clerk are hereby authorized and directed to execute an amendment to the City's basic agreement with CH2M Hill Southeast, Inc., dated July 20, 1983, including Task Order No. 2, for improvements to the City's Wastewater Treatment Plant to incorporate contract requirements imposed by the Arkansas Department of Pollution Control and Ecology. A copy of the amendment authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 7th day of December , 1984. ..,,,4;.«.. . t• ''4' Ci r'^if"r el<. 1:44'P 4 4 / 61.7" . Ti. By: -1 AGREEMENT TO FURNISH WASTEWATER ENGINEERING SERVICES TO THE CITY OF FAYETTEVILLE, ARKANSAS BASIC AGREEMENT This Agreement made this 141. day of $ , between the firm of CH2M HILL Southeast, Inc , hereinafter referred to as the ENGINEER, and the City of Fayetteville, Arkansas, hereinafter referred to as the OWNER, wherein the ENGINEER agrees to provide certain engineering services as defined in Article 1 and for the consideration defined in Article 2 herein. This Agreement amends the Basic Agreement dated July 20, 1983. ARTICLE 1 The OWNER, utilizing the Professional Contract Policy (adopted April 21, 1981) for the selection of firms to provide professional services, has selected the ENGINEER to provide the necessary services to implement a wastewater program to serve the City of Fayetteville. These services, when requested by the OWNER, will be described in specific Task Orders which become a part of this Agreement upon execution. The ENGINEER agrees to perform the services described in the Task Orders after execution by both parties to the agreement. The services provided by the ENGINEER are anticipated to include Design Services (Task Order 1), Services During Construction (Task Order 2), and Plant Operation and Mainte- nance Services (Task Order 3). The ENGINEER guarantees that the treatment facilities to be designed and constructed, will consistently meet the applicable NPDES permit limits for a period of two years following plant start-up, provided Services During Construction (Task Order 2) and Plant Operation and Maintenance Services (Task Order 3) are provided to the OWNER by the ENGINEER. Services to be provided under Task Order 2 shall include but shall not be limited to: 1) Preparation of a Plan of Operation 2) Bid advertising and sale of plans and specifica- tions at the Engineer's cost 3) Pre-bid conference assistance and follow-up 4) Bid evaluation/recommendation 5) Pre -construction meeting assistance 6) Shop drawing submitted review 7) COE/Regulatory coordination 8) Resident and field engineering services 9) Preparation of record drawings 10) Grant administration submittal 11) Preparation of Operation and Maintenance Manual EXHIBIT ; A 12) Operation certification The ENGINEER agrees tooprovide a draft of Task Order 3 to the OWNER within 60 days following execution of Task Order 1 and to make every effort to conclude final negotiations within 30 additional days. Task Order 3 will detail pro- visions of the plant operation, guarantee, penalties, compensation, and other provisions relative to this service. ARTICLE 2 The compensation for services to be provided will be negoti- ated and will be specified in each Task Order. ARTICLE 3 Payment to the ENGINEER for services provided as described in Article 1 is to be made within 15 days after date of billing, the amount due will be for services rendered during the previous month, unless prescribed differently in the Task Order. ARTICLE 4 It is further mutually agreed by the parties hereto: 4.1 That the OWNER will designate a representative to direct and coordinate the ENGINEER's efforts who will be the only source of instructions to the ENGINEER and who shall have the authority to interpret the OWNER's policy as necessary to maintain the ENGINEER's work schedule, administer the Agreement, and certify the ENGINEER's payment request. 4.2 That the OWNER shall make available to the ENGINEER all technical data in the OWNER's possession, including maps, surveys, borings, and other information required by the ENGINEER and relating to his work. 4.3 That, the estimates of cost for the Projects provided for herein are to be prepared by the ENGINEER through exercise of his experience and judgment in applying presently available cost data, but it is recognized that the ENGINEER has no control over cost of labor and materials conditions, so that he cannot warrant that the project construction costs will not vary from his cost estimates. 4.4 That, the ENGINEER's Salary Overheads are defined as a percentage of wages or salaries of employees working and premiums measured by or applicable at the time of performance to such wages or salaries, such as, but not limited to, Worker's Compensation Insurance, Social Security, State and Federal unemployment insurance, medical -hospital insurance, salary continuation insur- ance, pension plan costs, and pro rata allowances for vacation, sick pay, and holiday pay. Direct Salary plus Salary Overhead is defined as Payroll Cost. 4.5 That, the ENGINEER's direct expenses are defined as the costs incurred on or directly for the Project, other than the Salary and General Overhead Costs (as defined hereinbefore). Such direct expenses shall be computed on the basis of actual purchase price for items ob- tained from commercial sources and on the basis of usual commercial charges for items provided by the ENGINEER. Direct expenses shall include, but not be limited to, necessary transportation costs, including mileage at the.ENGINEER's current rate per mile when the ENGINEER's own automobiles are used, meals, and lodging, laboratory tests and analyses, computer services, word processing services, telephone, print- ing, binding, and multilith charges. 4.6 That, in soils investigation work and in determining subsurface conditions for the Project, the characteris- tics may vary greatly between successive test points and sample intervals. The ENGINEER will perform this work in accordance with generally accepted soils engineering practices and makes no other warranties, expressed or implied, as to the professional advice provided under the terms of this Agreement. 4.7 That, if payment of the amount due as prescribed in Article 2, or any portion thereof, is not made within the period specified in Article 3, interest on the unpaid balance thereof will accrue at the rate of 12 percent per annum and become due and payable at the time said overdue payments are made. 4.8 That, the ENGINEER shall maintain a level of compentency presently maintained by other practicing professional engineers in the same type of work in the southeastern United States, for the professional and technical soundness and accuracy of all designs, drawings, specifications, and other work and materials furnished under this Agreement. 4.9 Either party may terminate this Agreement any time by a notice in writing to the other party. If the Agreement is terminated as provided herein, the ENGINEER will be paid for services actually performed; the amount of said payment shall bear the same ratio to the total compensation specified in the executed task orders as the services actually performed bear to the total services of the ENGINEER covered by the executed task orders, less payments of compensation previously made. 4.10 The OWNER may, from time to time, request changes in the scope of the services of the ENGINEER to be per- formed hereunder. Such changes, including any increase or decrease in the amount of the ENGINEER's compen- sation, which are mutually agreed upon by and between the OWNER and the ENGINEER, shall be incorporated in written amendments to this Agreement. 4.11 That, the OWNER, shall pay for all costs of publishing advertisements for bids and for obtaining permits and licenses that may be required by local, State, or Federal authorities and shall secure the necessary land, easements and rights-of-way as described by the ENGINEER. 4.12 That, all claims, counter -claims, disputes and other matters in question between the OWNER and the ENGINEER arising out of or relating to this Agreement or in the breach thereof will be decided by arbitration only if both parties hereto specifically agree to the use of arbitration in regard to the individual matter in dispute. 4.13 That, in the event of any legal or other controversy requiring the services of the ENGINEER in providing expert testimony in connection with the Project, except suits or claims by third parties against the OWNER arising out of errors or omissions of the ENGINEER, the OWNER shall pay the ENGINEER for services rendered in regard to such legal or other controversy, on a basis to be negotiated. That, the OWNER will pay the ENGINEER for labor and expenses incurred in satisfying the requirements and assisting in any audit required by the OWNER, the United States Environmental Protection Agency, the Comptroller General, the United States Department of Labor, the State Regulatory Agency or any of their duly authorized representatives. The basis of payment will be specified in an Amendment to this Agreement. 4.14 That, visits to the construction site and observations made by the ENGINEER as part of his services shall not relieve the construction contractor(s) of his obligation to conduct comprehensive inspections of the work sufficient to ensure conformance with the intent of the Contract Documents, and shall not relieve the construction contractor(s) of his fully responsibility for all construction means, methods, techniques, sequences, and procedures necessary for coordinating and completing all portions of the work under the construction contract(s) and for all safety precautions incidental thereto. Such visits by the ENGINEER are not to be construed as part of the observation duties of the onsite observation personnel defined in other parts of this Agreement. 4.15 That, the ENGINEER shall provide onsite observation personnel and will make reasonable efforts to guard the OWNER against defects and deficiencies in the work of the contractor(s) and to help determine if the con- struction contract has been fulfilled. Their day-to-day observation will not, however, cause the ENGINEER to be responsible for those duties and respon- sibilities which belong to theconstruction contrac- tor(s) and which include, but are not limited to, full responsibility for the techniques and sequences of construction and the safety precautions incidental thereto, and for performing the construction work in accordance with the Contract Documents. 4.16 That the ENGINEER has the right to subcontract services however the OWNER has the right to reject Subcontrac- tors who perform work on the project in excess of $50,000. 4.17 All documents including drawings, specifications, estimates, field notes and other data pertaining to the work or to the project shall become the property of the OWNER. The OWNER shall not be restricted in the subsequent use of the design, design documents or ideas incorporated in the work. However, the ENGINEER shall bear no responsibility for such reuse of the design. unless specifically agreed to in writing. 4.18 That, this Agreement is to be binding on the heirs, successors, and assigns of the parties hereto and is not to be assigned by either party without first obtaining the written consent of the other. ARTICLE 5 IN WITNESS WHEREOF, the parties hereto each herewith sub- scribe the same in triplicate. FORCII�TTY�0j' FAYETTEVILLE, ARKANSAS By :gC!X/( (Name) ATTEST: 7 1 (T L`le) FOR CH2M HHILL SOUTHEAST, INC. 0,6 p By: / me) /rte/ (Title) jd/CGT/008 • AMENDED TASK ORDER NUMBER 2 SERVICE DURING AND AFTER CONSTRUCTION Task Order Number 2 amends the Basic Agreement executed between CH2M HILL Southeast, Inc. (Engineer), and the City of Fayetteville, Arkansas (Owner), on the 20th day of July, 1983. 1 ARTICLE 1 The wastewater program will be constructed using three Construction Contracts that will require approximately three years for total completion. An approximate schedule is shown in Figure 1. The facilities to be constructed are described in the 201 facilities Plan and more specifically in the Detailed Plans and Specifications but in summary include: o An 11.4 MGD average daily flow biological phospho- rus removal plant that will meet a permit limit of 5, 5, 2, 1 (BOD, total solids, ammonia nitrogen, and phosphorus): Included with the treatment plant is an effluent pump station and a 47 -acre storage pond to store effluent or return off -spec waste for reprocessing. o A 670 -acre city -owned sludge application site with a combination of sprinkler application, surface spreading, and subsurface injection. This project also includes a sludge force main, sludge storage, and an equipment maintenance building. o Collection system improvement that includes one new pump station, upgrading four existing pump stations, and approximately 60,000 linear feet of interceptors and force mains. The total estimated cost of the program is approximately $28,000,000. The engineering services to be provided are separated into three distinct phases for each project: Bid Phase, Con- struction Phase, and Post -Construction Phase. The Bid Phase will occur at three separate times under the current con- struction schedule. This Contract assumes that the project moves from one phase to another and begins approximately as scheduled. Significant departure from this assumption is cause for Contract scope and fee amendment. Payment for any services requiring a change of work scope will be made in accordance with Article 2 to this Agreement. a SLUDGE DIGESTION 4 LIQUID TREATMENT AWARD CONTRACT COMPLETE PROJECT a T a O 0 O . _ o) T T l. CO 0 co N TREATMENT PLANT SLUDGE TREATMENT a a cc 0 r a wz UO cc wa *- z CO M SCHEDULE FOR PROJECT CONSTRUCTION BY QUARTER A detailed description of the services to be provided is shown along with budget financial information in Appendix A. Services specifically excluded from the scope of work, but that may be required include: 1. Pilot plant planning, design, operation and report. 2 Survey work other than to establish the base line and to field locate the digested sludge force main and electrical transmission line. 3. Bid protests and disputes. 4. Extensions of time for project completion beyond the time described in Appendix A. 5. User charge studies, rate studies, or any related financial services during the Bid and Construction Phases. 6. Materials testing. ARTICLE 2 As consideration for providing the services enumerated in Article 1 above, the Owner shall pay the Engineer in accor- dance with the lump sum schedule shown below for labor and expense: Phase Compensation Bid Phase Construction Phase Post -Construction Phase Total Project $ 83,613. $1,831,531 $ 134,717 $2,049,861 Payment for services outside of the scope of work herein described shall be on the basis of raw labor cost plus 162% for overhead plus 15% for profit plus all project related direct expenses. Additional services to be provided must be agreed to in writing by the Engineer and the OWNER. Payment for these services are as described in Article 3. ARTICLE 3 Payment to the Engineer for services provided as described in Article 1 and Appendix A is due to be made within 30 days after date of billing, the amount due will be for services • rendered during the previous month based on percentage of completion. It should be recognized by the Owner that all costs provided for under this Contract are not Grant reim- bursable Costs such as interest on unpaid invoices (4.7), services provided under Article 4.13, and ADPC&E unapproved scope adjustment (4.10) are examples of such nonreimbursable costs. ARTICLE 4 4.1 - The Engineer, in preparing his monthly invoice for submittal to the Owner and later to ADPC&E, (in addition to those included in Master Agreement) will delineate grant eligible and ineligible costs. 4.2 - The provisions of EPA 40. CFR 33.1030Y,__which is attached to this Agreement, are hereby made a part of this Agreement. 4.3 - The Engineer agrees to amend the scope of services and compensation following eligibility review by ADPC&E. Such amended scope will be developed by negotiation and mutual agreement. ARTICLE 5 IN WITNESS WHEREOF, the parties hereto each herewith sub- scribe the same in triplicate. FOR THE CITY OF FAYETTEVILLE ARKANSAS By: FOR CH2M HILL SOUTHEAST, INC. By: !� me) (Title) Dated this .3v day of 1984 ATTEST: cm 1---- \<�sa� mss_ 3h/CGT/008 111:2440 FEDERAL REGULATIONS Labor regulations (29 CFR Part 3). This Act provides that each contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the construction, completion. or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to EPA. § 33.1020 Minimum wage clause. When required by the EPA assistance - program legislation, all construction (as defined by the Secretary of Labor) subagreements in excess of S2,000 awarded by recipients and any lower tier shall include a provision for compliance with the Davis -Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5). Under this Act contractors are required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less often than once a week. The recipient shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a subagreement shall be conditioned upon the acceptance of the wage determination. The recipient shall report all suspected or reported violations to EPA. § 33.1021 Work hours and safety standards clause. All subagreements in excess of S2,000 for construction contracts (as defined by the Secretary of Labor) and in excess of $2,500 for other subagreements which involve the employment of mechanics or laborers shall include a provision for compliance with section 103 and 107 of the Contract Work Flours and Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CFR Part 5). Under section 103 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard workday of 8 hours and a standard workweek of 40 hours. Work in excess of the standard workday or workweek is permissible provided that the worker is compensated at a rate of not less than one and one half times the basic rate of pay for all hours worked in excess of 8 hours in any calendar day or 40 hours in the workweek. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary. hazardous, or dangerous to his health and safety as determined under construction. safety, and health standards promulgated by the Secretary of Labor. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market. or contracts for transportation or tramsmission of intelligence. § 33.1022 Patents, data, and copyrights clause. Subagreements shall include notice of EPA requirements and regulations pertaining to reporting and patent rights under any subagreement involving research, developmental, experimental or demonstration work with respect to any'discovery or invention which arises or 's developed in the course of or under such subagreement and of EPA requirements and regulations pertaining to copyrights and rights in data contained in 40 CFR Part 30. § 33.1023 Violating facilities clause. Subagreements in excess of S100.000 shall contain a provision which requires contractor compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U,S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and EPA regulations (40 CFR Part 15) which prohibit the awarding of nonexempt Federal contracts, grants, or loans to facilities included on the EPA List of Violating Facilities. The provision shall require contractors to report violations to the EPA. . § 33.1024 Energy efficiency clause. Subagreements shall follow mandatory standards and policies on energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94- 163). § 33.1030 Model subagreement clauses. (a) Recipients must include, when appropriate, the following fourteen clauses or their equivalent in each subagreement. (b) Recipients may substitute other terms for "recipient" and "contractor" in their subagreements. 1. Supersession The recipient and the contractor agree that this and other appropriate clauses in 40 CFR 33.1030 or their equivalent apply to the EPA grant -eligible work to be performed under this subagreement and That these clauses supersede any conflicting provisions of this subagreement. Environment Reporter • 2. Privity of Subagreement This subagreement is expected to be funded in part with funds from the U.S. Environmental Protection Agency. Neither the United States nor any of its departments. agencies. or employees is or will be a party to this subagreement or any lower tier subagreement. This subagreement is to be subject to regulation contained in 40 CFR Pert 33 in effect on the date of the assistance award for this project. 3. Changes (a) This clause iv paragraph (al applies only to subagreements for construction. (1) The recipient may. at any time. without notice to any surety. by written order designated or indicated to be a change order. make any change in the work within the general scope of the subagreement, including but not limited to changes: (i) In the specifications (including drawings and designs); (ii]in the time. method. or manner of performance of the work; (iii) In the recipient -furnished facilities. equipment. materials. services. or site; or (iv) Directing acceleration in the performance of the work. (2) A change order shall also be any other written or oral order (including direction. instruction. interpretation or determination) from the recipient. which causes any change. provided the contractor gives the recipient written notice stating the date, circumstances. and source of the order and that the contractor regards the order as a change order. (3) Except as provided in this clause. no order, statement. or conduct of the recipient shall be treated as a change under this clause or entitle the contractor to an equitable adjustment. (4) If any change under this clause causes an increase or decrease in the contractor's cost or the time required to perform any part of the work under this contract, whether or not changed by any order. an equitable adjustment shall be made and the subagreement modified in writing and. except for claims based on defective specifications. no claim for any change under paragraph a)(2) above shall be allowed for any costs ncurred more than 20 days before the contractor gives written notice as required in paragraph (a)(2). In the case of defective specifications for which the recipient is responsible. the equitable adjustment shall include any increased cost reasonably incurred by the contractor in attempting to comply with those defective specifications, (5) If the contractor intends to assert a claim for an equitable adjustment under this clause, he must. within 30 days after receipt of a written change order under paragraph (1) of this change clause or the furnishing of a written notice under paragraph (2) of this clause, submit to the recipient a written statement setting forth the general nature and monetary extent of such claim. The recipient may extend the 30 -day period. The statement of claim may be included in the notice under paragraph (2] of this change clause. (6) No claim by the Contractor for an equitable adjustment shall be allowed if 52 [Sec. 33.1030(b)] C c • er i S-676 EPA GRANTS 111:2441 made after final payment under this subagreement. (b) The clause in this paragraph applies only to subagreements for services. (1) The recipient may. at any time. by written order. make changes within the general scope of this agreement in the services or work to be performed. If such changes.cause an increase or decrease in the contractor's cost or time required to perform any services under this agreement. whether or not changed by any order. an equitable adjustment shall be made and this agreement shall be modified in waiting. The contractor must assert any claim for adjustment under this clause in writing within 30 days from the date of receipt by the contractor of the notification of change unless the recipient grants additional time before the date of final payment. (2) No services for which an additional . compensation will be charged by the contractor shall be furnished without the written authorization of the recipient. (c) This mouse in paragraph (cl applies only to scbcgreemen!s for sapplies. 11) The recipient may at any time. by a written order. and without notice to the sureties, make changes. within the general scope of this subagreement. in any one or more of the following: (i) Drawings. designs. or specifications. where the supplies to be furnished are to be specially manufactured for the recipient; (ii) method of shipment or parking: and (iii) place of delivery. (2) If any change causes an increase or decrease in the cost or the time required to perform any part of the work under this subagreement. whether or not changed by any such order. an equitable adjustment shall be made in the subagreement price or delivery schedule, or both. and the subagreement shall be modified in writing. Any claim by the contractor for adjustment under this clause must be asserted within 30 days from the date of receipt by the contractor of the notification of change. If the recipient decides that the facts justify such action. the recipient may receive and act upon any such claim asserted at any time before final payment under this subagreement. Where the cost of property made obsolete or excess as a result of a change is included in the contractors claim for adjustment, the recipient shall have the right to prescribe the manner of disposition of such property. Nothing in this clause shall excuse the contractor from proceeding with the subagreement as changed. 4. Differing Site Conditions (This clause is applicable only to construction subagreements./ • (a) The contractor shall promptly, and before such conditions are disturbed, notify the recipient in writing of: (1] subsurface or latent physical conditions at the site differing materially from those indicated in this subagreement. or (2) unknown physical conditions at the site. of an unusual nature. differing materially from those ordinarily encountered and generally rece nized as inhering in work of the character provided for in this subagreement. The recipient shall promptly 11-25-83 Published by T investigate the conditions, and if it finds that conditions materially differ and will cause an increase or decrease in the contractor's cost or the time required to perform any part of the work under this subagreement, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the subagreement modified in writing. (b] No claim of the contractor under this clause shall be allowed unless the contractor has given the notice required in paragraph (a) of this clause. However. the recipient may extend the time prescribed in paragraph (a). (cl No claim by the contractor for an equitable adjustment shall be allowed if asserted after final payment under this subagreement. 5. Suspension of Work (This clause is applicable only to construction subagreements.) (a) The recipient may order the contractor in writing to suspend. delay. or interrupt all or any part of the work far such period of time as the recipient may determine to be appropriate for the convenience of the. recipient. (b) If the performance of all or any part of the work is suspended. delayed, or interrupted for an unreasorable period of time by an act of the recipient in administration of this subagreement. or by the recipient's failure to act within the time specified in this subagreement (or if no time is specified. within a reasonable time), an adjustment shall be made for any increase in the cost of performance of this subagreement (excluding profit) necessarily caused by such unreasonable suspension, delay. or interruption and the contract modified in writing. However. no adjustment shall be made under this clause far any suspension, delay. or interruption to the extent (1) that performance would have been so suspended. delayed, or interrupted by any other cause, including the fault or negligence of the contractor or (2) for which an equitable adjustment is provided for or excluded under any other provision of this subagreement. (c) No claim under this clause shall be allowed (1) for any costs incurred more than 20 days before the contractor notified the recipient in writing of the act or failure to act involved (this requirement does not apply to a claim resulting from a suspension order). and (2) unless the claim. in an amount stated, is asserted in writing as soon as practicable after the termination of such suspension. delay, or interruption. but not later than the date of final payment under the subagreement. 6. Termination (a) This subagreement 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 subagreement through no fault of the terminating party, provided that no termination may be effected unless the other party is given (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate and (2) an opportunity for consultation with the terminating party prior to termination. HE BUREAU OF NATIONAL AFFAIRS INC.. Washingto (b This subagreement may be terminated in whole or in part in writing by the recipient for i s convenience. provided that the contractor is given (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested) of . _ intent to terminate and (2) an opportunity for consultation with the terminating party prior to termination. (c) If termination for default is effected by the recipient. an equitable adjustment in the price provided for in this subagreement shall be made. but (1) no amount shall be allowed for anticipated profit on unperformed services or other work. and (21 any payment due to the contractor at the time of termination may be adjusted to cover any additional casts to the recipient because of the contractor's default. If termination for default is effected by the contractor. or if termination for convenience is effected by the recipient, the equitable adjustment shall include a reasonable profit far services or other work performed. The equitable adjustment for any termination shall provide for payment to the contractor for services rendered and expenses incurred prior to the termination.. in addition to termination settlement costs reasonably incurred by the contractor relating to commitments which had become firm prior to the termination. (d) Upon receipt of a termination action pursuant to paragraphs (a) or (b) above. the contractor shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2) deliver or otherwise make available to the recipient ail data. drawings, specifications. reports, estimates. summaries. and such other information and materials as may have been accumulated by the contractor in performing this subagreement. whether completed or in process. (e) Upon termination under paragraphs (a) or (b) above. the recipient may take over the work and may award another party of subagreement to complete the work under this subment. (f) If. atteragreeto urination for failure of the contractor to fulfill contractual obligations. it is determined that the contractor had not failed to fulfill contractual obligations. the termination shall be deemed to have been for the convenience of the recipient. In such , event, adjustment of the price provided for in this subagreement shall be made as provided in paragraph (c) of this clause. 7. Remedies Except as may be otherwise provided in this subagreement, all claims. counter -claims, disputes, and other matters in question between the recipient and the contractor arising out of or relating to this subagreement or the breach thereof will be decided by arbitration if the parties mutually agree. or in a court of competent jurisdiction within the State in which the recipient -is located. 0. Price Reduction for Defective Cost or Pricing Data Note.—This clause is applicable to Many subagreement negotiated between the recipient and its contractor in excess of 3500.000: (27 negotiated subagreement amendments or change orders in excess of $500,000 or 30 percent of the subagreement [Sec. 33.1030(b) n. D.C. 20037 53 til 111:2442 FEDERAL REGULATIONS whichever is less. affecting me the price 010 formally advertised. campetitr vely oerordPi/. fr cd price subagreement: ur /JI ally lower tier snbugree:nent or purchae order r:i excess uJ SJ00.000 or 10 percent u`thc ussistouce agreement, whichever is less. under a subagreement other than a .formally advertised. competitively owarded. fixed price subagreement. This clause is not applicable for subagreements to the extent that they ore awarded an the basis of effective price competition. The contractor and subcontractor, where appropriate, warrant that cost and pricing data submitted for evaluation with respect to negotiation of prices for negotiated subagreements, lower tier subagreernents. and change orders is based on current. accurate, and complete data supported by their books and records. If the recipient or EPA determines That any price (including profit) negotiated in connection with this subagreement. any lower tier subagreement. or any amendment thereunder was increased by arty significant sums because the data provided was incomplete. inaccurate. or not 'current at the time of submission. then such price or cost or profit shall be reduced accordingly; and the subagreement shall be modified in writing to reflect such action. Note.—Since the subagreement is subject to reducton under this clause by reason of defective cost or pricing data submitted in connection with lower tier subagreements, the contractor may wish to include a clause in each lower tier subagreement requiring (he lower tier subcontractor to appropriately indemnify the contractor. It is also expected that any lower tier subcontractor subject 10 such indemnification will generally require substantially similar indemnification for defective cost or pricing data required to be submitted by lower tier contractors. 9. Audit; Access to Records (a) The contractor shall maintain books, records. documents. and other evidence directly pertinent to performance on EPA grant work under this subagreement in accordance with generally accepted accounting principles and practices consistently applied. and 40 CFR Part 30, in effect on the date of execution of this subagreement. The contractor shall also maintain the financial information and data used by the contractor in the preparation or support of the cost submission required under 40 CFR 33.290 for any negotiated subagreement or change order and a copy of the cost summary submitted to the recipient. The United States Environmental Protection Agency. the Comptroller General of the United States. the United States Department of Labor, recipient. and (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. The contractor will provide proper facilities for such access and inspection. (b) 1f this is a formally advertised. competitively awarded. fixed price subagreement, the contractor agrees to make paragrnphs (a) through (f) of this clause applicable to all negotiated change orders and subagreement amendments affecting the subagreement price. In the case of all other types of prime subagreernents. the contractor agrees to include paragraphs (a) through (f) of this clause in alt his subagreements in excess of 510.000 and all lower tier subagreements in excess of 510.000 and to make paragraphs (a) through (f) of this clause applicable to all change orders directly related to project performance. (c) Audits conducted under this provision shall be in accordance with generally accepted auditing standards and established procedures and guidelines of the reviewing or audit agency(ies). Id) The contractor agrees to disclose all information and reports resulting from access to records under paragraphs (a) and (bl of this clause, to any of the agencies referred to in paragraph (a). - (e) Records under paragraphs (a) and (b) above, shall be maintained and made available during performance on EPA assisted work under this subagreement and until three years from the date of final EPA payment for the project. In addition. those records which relate to any controversy arising under an EPA assistance agreement. to litigation. to the settlement of claims 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 dale of resolution of such appeal. litigation. claim. or exception. (f) This right of access clause (with respect to financial records) applies to: (1) Negotiated prime subagreements. (2) Negotiated change orders or subagreement amendments in excess of $70.000 affecting the price of any formally advertised, competitively awarded. fixed price subagreement. and (3) Suhagreements or purchase orders under any subagreement other than a formally advertised. competitively awarded, fixed price subagreement. However. this right of access does not apply to a prime subagreement. lower tier subagreement. or purchase order awarded aper effective price competition. except: (i) With respect to records pertaining directly to subagreement performance. (excluding any financial records of the contractor,) (ii) If there is any indication that fraud. gross abuse. or corrupt practices may be involved or (iii) if the subagreement is terminated for default or for convenience. 10. Covenant Against Contingent Fees The contractor warrants that no person or selling agency has been employed or retained to solicit or secure this subagreement upon an agreement or understanding for a commission, percentage, brokerage. or contingent fee. excepting bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business. For breach or violation of this warranty the recipient shall have the right to annul this agreement without liability or in its discretion to deduct from the contract price or consideration, or otherwise recover. the Environment Reporter full amount of such commission. percentage. brokerage. or contingent fee. 11. Gratuities (a) 1f the recipient finds after a notice and hearing that the contractor. or any of the contractor's agents or representatives. offered or gave gratuities (in the form of entertainment, gifts, or otherwise). to any official, employee. or agent of the recipient. the State. or EPA in an attempt to secure a subagreement or favorable treatment in awarding. amending. or making any determinations related to the performance of this agreement. the recipient may. by written notice to the contractor. terminale this agreement. The recipient may also pursue other rights and remedies that the law or this agreement provides. However. the existence o the facts on which the recipient 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 subagreement is terminated as provided in paragraph (a) the recipient may pursue the same remedies against the contractor as it could pursue in the event of a breach of the subagreement by the contractor. and (2) as a penalty, in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by the recipient) which shall be not less than three nor more than ten times the costs the contractor incurs in providing any such gratuities to any such officer or employee. 12. Buy American (This clause applies to subagreements awarded under 40 CFR Part 35, Subparts E and L) In accordance with section 215 of the Clean Water Act (33 USC 1251 et. seq.) and implementing EPA regulations and guidelines. the contractor agrees that preference will be given to domestic construction material by the contractor, subcontractors, materialmen. and suppliers in the performance of this subagreement. 13. Responsibility of the Contractor (a) This clause in paragraph (a) applies to all subagreements for services. 11) The contractor is responsible for the professional quality, technical accuracy.' timely completion, and the coordination of all designs. drawings, specifications, reports, and other services furnished by the contractor under this agreement. The contractor shall. without additional compensation. correct or revise any errors. omissions. or other deficiencies in his designs. drawings, specifications, reports. and other services. (2) The contractor shall perform the professional services necessary to accomplish the work required to be performed under this agreement. In accordance with this agreement and applicable EPA requirements in effect on the date of execution of the assistance agreemenl for this project. (3) The owner's or EPA's approval of drawings, designs, specifications, reports, and incidental work or materials furnished hereunder shall not in any way relieve the 54 (Soc. 33.10301b11 C c ay S-676 EPA GRANTS 111:2443 contractor of responsibility for the technical adequacy of his work. Neither the owner's nor EPA's review, approval, acceptance. or payment far any of !he 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. (4I The contractor shall be and shall remain liable. in accordance with applicable law. for all damages to the owner or EPA caused by the contractor's negligent performance of any of the services furnished under this agreement except for errors. omissions or other deficiencies to the extent attributable to the owner. owner -furnished data. ur any Third party: The contractor shall not be responsible for any time delays in the project caused by circumstances beyond the contractor's control. (5) The contractor's obligations under this clause are in addition to the contractor's other express or implied warranties under this agreement or State law and in no way diminish any other rights that the owner may have against the contractor for faulty materials. equipment or work. (b) The clause in paragraph (b) applies only to subogrcements for construction. (1) The contractor agrees to perfomt all work under this agreement in accordance with this agreement's designs. drawings, and specifications. (2) The contractor warrants and guarantees for a period of one (1) year from the date of substantial completion of the system that the completed system is free from all defects due to faulty materials. equipment or workmanship: and the contractor shall promptly make whatever adjustments or corrections necessary to cure such defects. including repairs of any damage to other parts of the system resulting from such defects. The owner shall give notice to the contractor of observed defects with reasonable promptness. In the event that the contractor fails to make adjustments. repairs, corrections or other work that may be made necessary by such defect. the owner may do su and charge the contractor the cost incurred. The performance bond shall remain in Full force and effect through the guarantee period. (3) The contractor's obligations under this clause are in addition to the contractors other express or implied warranties under This agreement or State law and in no way diminish any other rights that the owner may haw. Huainst the contractor for faulty materials. equipment. or work. 14. Final Payment Upon satisfactory completion of the work performed under this agreement. as a condition before final payment under this agreement, or as a termination settlement under thisagreement. the contractor shall execute and deliver to the owner a release of all claims against the owner arising under or by virtue of this agreement. except claims which are specifically exempted by the contractor to be set forth therein. Unless otherwise provided in this agreement nr 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 the owner's claims against the contractor nr his sureties under this agreement or applicable performance and payment bonds. Subpart G—Protests § 33.1105 Applicability and scope of this • subpart. (a) This subpart sets forth the administrative process that EPA will use for the rapid resolution of protest appeals filed with the award official. (b) A protest is a written complaint concerning the award of a recipient's subagreement filed with the recipient by a party with a direct financial interest adversely affected by a recipient's procurement action. (c) A protest appeal is a complaint filed with the award official regarding the recipient's determination of protest. § 33.1110 Limitations on protest appeals. (a) The award official shall not accept a protest appeal from a recipient's determination of protest until the protester has exhausted all administrative remedies at the recipient level. (b) A protest appeal may only be filed with the award official for: (1) Issues arising under the procurement provisions of this Part: (2) Alleged violations of State or local law or ordinances and when the award official determines that there is a contravening Federal requirement; (3) Provisions of Federal regulations applicable to direct Federal contracts. if such provisions are explicitly referred to or incorporated in this Part; (4) Basic project design determinations which clearly relate to questions of source selection or application of restrictive specifications: or (5) Award of lower tier - subagreements: (i) If the recipient mandated the award to a particular entity; or (ii) If it were based on a violation of the requirements in § 33.295 "Lower tier subagreements.' § 33.1115 General requirements. (a) Any party with an adversely affected direct financial interest may file a written protest appeal with the award official in accordance with this subpart. (b) The recipient is responsible for the prompt initial determination of the protest. (c) The award official may summarily dismiss an appeal without proceedings under this subpart. if the protest or appeal is untimely or entirely addresses issues which are beyond the scope of this subpart. or the protester fails to comply with the intent of the procedural requirements of this subpart. (d) The award official may summarily deny a protest appeal. without proceedings under this subpart. if. after considering the facts in a light must favorable to the protester. the award official believes that the protest lacks merit. § 33.1120 Filing requirements for protest appeals. (a) A protest appeal to the award official must be in writing and must adequately state the basis for the protest appeal. Appeals must be received by the award official within one week after the complaining party has received the recipient's determination of protest. if the last day falls on a Saturday. Sunday or holiday, the last day to submit a request shall be the next working day. A copy of the recipient's determination of protest and other documentation in support of the appeal shall be transmitted with the appeal. (b) The award official will dismiss as untimely any protest appeals based upon alleged improprieties in the solicitation which were apparent before [Sec. 33.1120(b)] 11-25-83 Published by THE BUREAU OF NATIONAL AFFAIRS INC.. Washington. D.C. 20037 55 • • APPENDIX A WORK SCOPE AND BUDGET • The engineering services will be provided by CH2M HILL to the City of Fayetteville. McClelland Consulting Engineers will provide, under subcontract to CH2M HILL, a significant part of the total services provided. Figure 2 illustrates a simplified project organization structure illustrating the project team approach of the two firms. McClelland will have primary responsibility for the Collection Improvement Project as they had a principal role in the design, and a support role to improve project efficiency and cost-effectiveness. BID PHASE The Bid Phase services will be provided three separate times, once for each construction project. The total calendar time required to provide Bid Phase services is approximately 120 days. Bids will be received 45 days from the first date of the three weekly advertisements. Approxi- mately three weeks will be required to analyze bids, recom- mend awards, accept the bid awards, and submit the required information package to ADPC&E for approval. Forty-five days is anticipated to receive the needed approvals and 14 days needed to prepare contracts and issue a Notice to Proceed. The time schedule, work scope, and budget assumes that a bid protest does not occur. The specific Tasks to be performed are shown below. Table 1 shows the anticipated mandays of various labor categories for the Engineer and McClelland. 1. Prepare and Place Advertisements 2. Communicate with Prospective Bidders 3. Prebid Conferences 4. Technical Interpretations 5. Preparation of Addenda 6. Bid Openings 7. Analysis of Bids - Recommend Awards 8. Grant Administration 9 Prepare Contracts 10. Notices to Proceed Construction Phase The specific services/tasks to be provided during this phase of the project are shown below: 1. Project Management 2. Preconstruction Conferences Y OF FAYETTEVILLE CH2M HILL PRINCIPAL -IN -CHARGE CH2M HILL PROJECT MANAGER PROJECT CONSULTANTS CH2M HILL/McCLELLAND CH2M HILL LEAD ENGINEERS McCLELLAND PROJECT MANAGER CH2M HILL ENGINEERS U _ W CC > W W ¢ CO W m W 0UZ ~ Z Z Z } W W 0 > (7OC< W • W CC (n J RESIDENT ENGINEER FIGURE 2; PROJECT ORGANIZATION • • 3. Final Plan of Operation 4. Coordination of Resident Staff 5. Client Meetings 6. Change Order Preparation 7. Shop Drawing Submittal Tracking 8 Shop Drawing Review 9. Survey to Locate Sludge Pipeline and Electrical Transmission Routings 10. Review of Payment Estimates 11. Prepare Monthly Status Reports 12. Claims Management 13. Periodic Site Visits 14. Factory Witness and Field Tests 15. Final Inspections - Punch List 16. Grant Administration 17. Project Closeout 18. Resident Observation 19. Record Drawing 20. Draft and Final Operations and Maintenance Manual 21. Start-up Services A brief narrative of the services to be provided follows. There will be three separate Construction Contracts as previously described. The total time of construction is budgeted to be three years thus project management will be provided for the entire period. There will be three sepa- rate preconstruction conferences as the projects will not be initiated at the same time. A one -day meeting to discuss the project requirements will be held along with a visit to the site to review specifics with the contractors. The Final Plan of Operation will be prepared and submitted to ADPC&E prior to requesting 50% of the grant funds. Coordination of resident staff will be ongoing but this activity includes responding to questions raised by the contractors', superintendent, interpretation of the plans and specifications, and review of the reports prepared by the resident observers. Client meetings are scheduled to occur each month to review progress on the construction and to respond to questions on the written project status reports. These reports will be also presented to ADPC&E along with the monthly grant payment request. A budget to manage and process contract change orders has been included based upon the complexity of the project and the Engineer's experience on similar projects. In a similar manner, a budget has been established to manage potential contractor claims. This activity is an active ongoing review and response to potential claims that Contractors might make and is designed to minimize or prevent formal claims from being submitted. When formal claims are made, this effort will provide the Owner with documentation that will be useful in assessing the validity of claims. The timely but careful review of shop drawings is essential to a successful construction project. Hundreds of shop drawings are anticipated to be submitted with approximately 50% of the original submittals anticipated to require multiple reviews. Tracking of the status of shop drawing submittals is essential to maintain prompt review and response to the contractors. A total of 450 plan sheets and more than 3000 pages of technical specifications have been developed for the three projects. The budget shown repre- sents the mandays of effort for lead engineers in all of the required review disciplines and represents historical requirements for projects of similar size and complexity. The Engineer will review the monthly pay requests submitted by the Contractor's as to accuracy. Upon approval by the Engineer, the pay requests will be made a part of the grant payment request package to be submitted to ADPC&E each month. This package will be prepared for the Owner's approval and execution. The project manager will visit the construction site at least two times each month to review construction progress with the resident engineer and contractors. One visit each month will be performed in conjunction with the monthly client meeting. Resident services for all three projects will be coordinated by a resident engineer who will be located at the wastewater treatment plant construction site. He will provide stan- dards to be utilized by all construction observers and will monitor the progress of all three projects. The resident engineer will be located in Fayetteville at the time a Notice to Proceed is given and will participate in the preconstruction conference. The resident engineer is budgeted to remain in Fayetteville for the full three years or until final close-out on all projects. For all resident observers, vacation, sick leave, and holidays are offset by anticipated overtime requirements. Twelve days are budgeted for relocation of the senior resident to and from Fayetteville. An additional technician resident observer will assist the chief resident at the treatment plant for the full three years. Also, 24 days of technician time is budgeted to assist during major concrete pours or other construction activities requiring additional observation. The sludge application project will require a full-time resident for 12 months. The collection system project will require two residents full-time for one year. The budget developed for resident observation assumes the following full-time resident periods: o Treatment Plant - 36 months o Collection system Improvement - 12 months o Sludge Application Site - 12 months Additional requirements for resident observers, considering the net effect of all three projects, will constitute a change in work scope with additional compensation to the Engineer. This additional compensation will be as described in Article 2 of this Task Order. Survey services will be provided to locate the original survey base line at the treatment plant and locate the sludge force main and electrical transmission line. No additional survey needs are anticipated or budgeted. Factory witness and field tests are anticipated to be required based upon the complexity of the project. These tests may include observation of aerator performance at the factory, checking primer paint systems prior to shipment, and field check out of electrical systems prior to making terminations. Final inspection, project close out, and general grant administration will be provided to complete the three construction projects. General grant administration will occur near the end of the project but will also include efforts required to file additional grant applications each year as necessary. The record drawings will be furnished to the Owner 60 days following the completion of each project. A11 changes will be based on known changes made during construction as provided by the contractor and concurred by the resident engineer. A draft of the Operation and Maintenance Manual will be provided to the Owner and ADPC&E prior to requesting 50% of the grant funds and a Final Manual will be provided prior to requesting 90% of the grant funds. POST CONSTRUCTION PHASE The Engineer will provide post construction services follow- ing the requirements of 40 CFR 35.2218 for project perfor- mance.