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HomeMy WebLinkAbout121-85 RESOLUTIONxEsolurlaa ND. 1121-85 SCANNED, A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK To EXECUTE A CONTRACT WITH MCCLELLAND CONSULTING ENGINEERS, INC. FOR THE DESIGN AND OONSTRUCTION SUPERVISION OF DRAINAGE FACILITIES ALONG ARKANSAS HIGHWAY 16 WEST NEAR RUPPLE ROAD. BE IT FESOLVED BY THE BDMD OF DI1=r0RS OF THE CITY OF FAYEMVILLEr That the Mayor and City Clerk are hereby authorized and directed to execute a contract with McClelland Consulting Engineers, Inc., for the design and construction supervision of drainage facilities along Arkansas Highway 16 West near Rupple Road. A copy of the contract authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof. it'ASSED AND APPFDVED this .19th day of Novpmhpr , 1985e _ r :AN F) 66 s xEsolurlaa ND. 1121-85 SCANNED, A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK To EXECUTE A CONTRACT WITH MCCLELLAND CONSULTING ENGINEERS, INC. FOR THE DESIGN AND OONSTRUCTION SUPERVISION OF DRAINAGE FACILITIES ALONG ARKANSAS HIGHWAY 16 WEST NEAR RUPPLE ROAD. BE IT FESOLVED BY THE BDMD OF DI1=r0RS OF THE CITY OF FAYEMVILLEr That the Mayor and City Clerk are hereby authorized and directed to execute a contract with McClelland Consulting Engineers, Inc., for the design and construction supervision of drainage facilities along Arkansas Highway 16 West near Rupple Road. A copy of the contract authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof. it'ASSED AND APPFDVED this .19th day of Novpmhpr , 1985e _ r :AN F) 66 E a � l 4; tai-Ps:- FAYETTEVILLE, ARKANSAS P. O. DRAWER F 72701 January 22, 1986 McClelland Consulting Engineers, Inc. P.O. Box 1229 Fayetteville, Arkansas 72702 Dear Sir: 15011621-7700 1Y11l.nOF'LMED Re: Highway 16 West (Rupple Road) Drainage, Engineering Contract The above referenced contract has been executed by both parties involved. Enclosed is a copy for your use and file. This letter also constitutes your "Start Work Order" effective January 22, 1986, under the provisions of the above referenced contract. Enclosure , as stated ` ' "Zbti cc: City Clerk City Purchasing Officer CPP/tat Yours truly,. CLAYTON PP OW Contract Construction Administrator STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT made as of 1�v�6 s;, t,�� _ 19 Flf i between the City of Fayetteville, Arkansas (OWNER) and McClelland Consulting Engineers, Inc. (ENGINEER). OWNER intends to construct drainage improvements along Rupple Road, on Highway 16 West. Work shall include: A. Coordination with the Arkansas Highway and Transportation Department to construct a culvert(s) underneath Highway 16 West. Also obtain necessary Permit from Arkansas Highway and Transportation Department (AHTD) for construction. B. Field surveys adequate to perform design and to write easements. C. Design of an earthen drainage channel along Rupple Road. F D. Preparation of easements including legal description and tract maps for all drainage and street right-of-way. E. Construction management and periodic construction observation. (hereinafter called the project). OWNER and ENGINEER in consideration of their mutual covenants herein agree in respect of the performance of professional engineering services by ENGINEER and the payment.for those services by OWNER as set forth below. ENGINEER shall provide engineering services for OWNER in all phases of the Project to which this Agreement applies, serve as OWNER'S professional engineering representative for the Project as set forth below and shall give professional engineering consultation and advice to OWNER during the performance of services hereunder. J STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT made as of 1�v�6 s;, t,�� _ 19 Flf i between the City of Fayetteville, Arkansas (OWNER) and McClelland Consulting Engineers, Inc. (ENGINEER). OWNER intends to construct drainage improvements along Rupple Road, on Highway 16 West. Work shall include: A. Coordination with the Arkansas Highway and Transportation Department to construct a culvert(s) underneath Highway 16 West. Also obtain necessary Permit from Arkansas Highway and Transportation Department (AHTD) for construction. B. Field surveys adequate to perform design and to write easements. C. Design of an earthen drainage channel along Rupple Road. F D. Preparation of easements including legal description and tract maps for all drainage and street right-of-way. E. Construction management and periodic construction observation. (hereinafter called the project). OWNER and ENGINEER in consideration of their mutual covenants herein agree in respect of the performance of professional engineering services by ENGINEER and the payment.for those services by OWNER as set forth below. ENGINEER shall provide engineering services for OWNER in all phases of the Project to which this Agreement applies, serve as OWNER'S professional engineering representative for the Project as set forth below and shall give professional engineering consultation and advice to OWNER during the performance of services hereunder. SECTION.1 - BASIC SERVICES OF ENGINEER 1.1 General 1.1.1. ENGINEER shall perform professional services as hereinafter stated which include customary civil engineering services incidental thereto. 1.2 (Not Applicable) 1.3 Preliminary Design Phase After authorization to proceed, ENGINEER shall: 1.3.1. In consultation with OWNER determine the extent of the Project. 1.3.2. Prepare preliminary design documents consisting of design criteria and preliminary drawings. 1.3.3. Based on the information contained in the preliminary design . documents, submit an opinion of probable Project Cost. 1.3.4. Furnish five copies of the above preliminary design documents for the Owner's review. -2- The duties and responsibilities of ENGINEER during the Preliminary Design Phase are amended and supplemented as indicated in paragraph 2 of Exhibit A "Further Description of Basic Engineering Services and Related Matters". 1.4 Final Design Phase After authorization to proceed with the Final Design Phase, ENGINEER,shall: 1.4.1. On the basis of the accepted preliminary design documents and the opinion of probable Project Cost, prepare for incorporation of the Contract Documents final drawings to show the character and extent of the Project (hereinafter called "Drawings") and Specifications. 1.4.2. Furnish to OWNER such documents and design data as may be required so that OWNER may apply for approvals of such governmental authorities as have jurisdiction over design criteria applicable to the Project. 1.4.3, Advise OWNER of any adjustments to the latest opinion of probable Project Cost caused by changes in extent or design requirements of the Project or Construction Costs based on the Drawings and Specifications. 1.4.4. Prepare for review and approval by OWNER, his legal counsel and other advisors contract agreement forms, general conditions and supplementary conditions, and bid forms, invitations to bid and instructions to bidders. 1.4.5. Furnish five copies of the above documents and present and review them in person with OWNER. The duties and responsibilities of ENGINEER during the Final Design Phase are amended and supplemented as indicated in paragraph 3 of Exhibit A "Further Description of Basic Engineering Services and Related Matters". 1.5 Bidding Phase After authorization to proceed with the Bidding Phase, ENGINEER shall: 1.5.1. Assist OWNER in obtaining bids for construction. 1.5.2. Consult with and advise OWNER as to the acceptability of subcontractors and other persons and organizations proposed by the prime contractor (hereinafter called "Contractor") for those portions of the work as to which such acceptability is required by the bidding documents. 1.5.3. Consult with and advise OWNER as to the acceptability of substitute materials and equipment proposed by Contractor. 1.5.4. Assist OWNER in evaluating bids and in assembling and awarding contracts. -3- 1.6 Construction Phase During the Construction Phase.ENGINEER shall: 1.6.1. Consult with and advise OWNER and act as his representative. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said Standard General Conditions shall not be modified, except to the extent provided in paragraph 6 of Exhibit A "Further Description of Basic Engineering Services and Related Matters" and except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor(s) will be issued through ENGINEER who will have authority to act on behalf of OWNER except as otherwise provided in the aforementioned Exhibit A. 1.6.2. Make visits to the site at intervals appropriate to the various stages of construction to observe the progress and quality of the executed work of Contractor(s) and to determine in general if such work is proceeding in accordance with the Contract Documents. ENGINEER shall not be responsible for the means, methods, techniques, sequences or procedures of construction selected by Contractor(s) or the safety precautions and programs incident to the work of Contractor(s). ENGINEER's efforts will be directed toward providing a greater degree of confidence for OWNER that the completed work of Contractor(s) will conform to the Contract Documents, but ENGINEER shall not be responsible for the failure of Contractor(s) to perform the work in accordance with the Contract Documents. During such visits and on the basis of on-site observations ENGINEER shall keep OWNER informed of the progress of the work, shall endeavor to guard OWNER against defects and deficiencies in such work and may disapprove or reject work failing to conform to the Contract Documents. 1.6.3, Review Shop Drawings and samples, the results of tests and inspections and other data which each Contractor is required to submit, but only for conformance with the design concept of the Project and compliance with the information given in the Contract Documents (but such review and approval or other action shall not extend to means, methods, sequences, techniques or procedures of construction or to safety precautions and programs incident thereto); determine the acceptability of substitute materials and equipment proposed by Contractor(s); and receive and review (for general content as required by the Specifications) maintenance and operating instructions, schedules, guarantees, bonds and certificates of inspection which are to be assembled by Contractor(s) in accordance with the Contract Documents. 1.6.4. Issue all instructions of OWNER to Contractor(s); issue necessary interpretations and clarifications of the Contract Documents and, in . connection therewith prepare change orders as required; have authority, as OWNER's representative, to require special inspection or testing of the work; act as initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the work thereunder and make decisions on all claims of OWNER and Contractor(s) 'relating to the -4- acceptability of the work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of the work. 1.6.5. Based on ENGINEER'S on-site observations as an experienced and qualified design professional and on review of applications for payment and the accompanying data and schedules, determine the amounts owing to Contractor(s) and recommend in writing payments to Contractor(s) in such amounts; such recommendations of payment will constitute a representation to OWNER, based on such observations and review, that the work has progressed to the point indicated, that, to the best of ENGINEER'S knowledge, information and belief, the quality of such work is in accordance with the Contract Documents (subject to an evaluation of such work as a functioning Project upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, and to any qualifications stated in his recommendation), and that payment in the amount recommended is due Contractor(s). 1.6.6 Conduct a project site visit to determine if the Project is sub- stantially complete and if the work has been completed in accordance with the Contract Documents and if.each Contractor has fulfilled all of his obligations thereunderso that ENGINEER.may.-recommend,'in writing, final payment to each Contractor and may give written notice to OWNER and the Contractor's that the work is acceptable (subject to any conditions therein expressed). 1.6.7 ENGINEER shall not be responsible for the acts or omissions of any Contractor, or subcontractor, or any of the Contractor(s)' or subcontractors' agents or employees or any other persons (except 'ENGINEER'S own employees and agents) at the site or otherwise performing any of the Contractor(s)' work; however, nothing contained in paragraphs 1.6.1 thru 1.6.7., inclusive shall be construed to release ENGINEER from liability for failure to properly perform duties undertaken by him in the Contract Documents. -5- SECTION 2 - ADDITIONAL SERVICES OF ENGINEER 2.1 General If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of .the following types which are not considered normal or customary Basic Services except to the extent provided otherwise in Exhibit A "Further Description of Basic Engineering Services and Related Matters"; these will be paid for by OWNER as indicated in Section 5. 2.1.1. Preparation of applications and supporting documents for governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effect on the design requirements of the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2.1.2. Services to verify the accuracy of drawings or facilities, or to. verify the accuracy of drawings or other information furnished by OWNER. 2.1.3. Services resulting from significant changes in extent of the Project or its design including, but not limited to, changes in size, complexity, OWNER's schedule, or character of construction or method of financing; and revising previously accepted studies, reports, design documents or Contract Documents when such revisions are due to causes beyond ENGINEER's control. 2.1.4. Providing renderings or models for OWNER's use. 2.1.5. Preparing documents for alternate bids requested by OWNER for Contractor(s)' work which is not executed or documents for out -of -sequence work. 2.1.6. Investigations involving detailed consideration of operations, maintenance and overhead expenses; providing Value Engineering during the course of design; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing and assisting OWNER in obtaining process licensing; detailed quantity surveys of material, equipment and labor; and audits or inventories required in connection with construction performed by OWNER. 2.1.7. Furnishing the services of special consultants for other than the normal civil and structural engineering incidental thereto, and providing data or services of the types described in paragraph 3.3 when OWNER authorizes ENGINEER to provide such data or services in lieu of furnishing the same in accordance with paragraph 3.3. -6- 2.1.8. Services resulting from the award of more separate prime contracts for construction, materials, equipment or services for the Project and services resulting from the arranging for performance by persons other than the principal prime contractors of services for the OWNER and administering OWNER's contract for such services. 2.1.9. Providing field surveys for staking to enable Contractor to proceed with his work; and providing other special field surveys. 2.1.10. Services in connection with change orders to reflect changes requested by OWNER if the resulting change in compensation for Basic Services is not commensurate with the additional services rendered, services after the award of each contract in evaluating substitutions proposed by Contractor(s), and in making revisions to Drawings and Specifications occasioned thereby, and services resulting from significant delays, changes or price increases occurring as a direct or indirect result of material, equipment or energy shortages. 2.1.11. Services during out-of-town travel required of ENGINEER other than visits to the site as required by Section 1. 2.1.12. Preparing for OWNER, on request, a set of reproducible record prints of Drawings showing those changes made during the construction process, based on the marked -up prints, drawings, and other data furnished by Contractor(s) to ENGINEER and which ENGINEER considers significant. Two sets of record prints will be included with Basic Services. 2.1.13. Additional or extended services during construction made necessary by (1) work damaged by fire or other cause during construction, (2) a significant amount of defective or neglected work of Contractor(s), (3) prolongation of the contract time of any prime contract by more than sixty calendar days, (4) acceleration of the progress schedule involving services beyond normal working hours, and (5) default by Contractor(s). 2.1.14. (Not Applicable) 2.1.15. Services after completion of the Construction Phase,,such as inspections during any guarantee period and reporting observed discrepancies under guarantees called for in any contract for the Project. 2.1.16 Preparing to serve or serving as a consultant or witness for OWNER in any litigation, public hearing or other legal or administrative proceeding involving the Project (except as agreed to under Basic Services). -7- 2.1.17. Additional services Din connection with the Project, including services normally furnished by OWNER and services not otherwise provided for in this Agreement. 2.2. Resident Services During Construction 2.2.1. If requested by OWNER and agreed to in writing by ENGINEER, a Resident Project Representative will be furnished and will act as directed by ENGINEER in order to assist ENGINEER in observing performance of the work of Contractor(s). Such services will be paid for by OWNER as indicated in Section 5. 2.2.2. (Not applicable). 2.2.3. Through more extensive on-site observations of the work in progress and field checks of materials and equipment by the Resident Project Representative and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the work of Contractor(s); but the furnishing of such resident Project representation will not make ENGINEER responsible for construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or for"Contractor(s)' failure to perform their work in accordance with the Contract Documents. 2.2.4. (Not Applicable) SECTION 3 - OWNER'S RESPONSIBILITIES OWNER shall: 3.1. Provide all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications. 3.2, Assist ENGINEER by placing at his disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. -8- 3.3. Furnish to ENGINEER, as required for performance of ENGINEER's Basic Services (except to the extent provided otherwise in Exhibit A "Further Description of Basic Engineering Services and Related Matters")., data prepared by or services of others, including without limitation core borings, probings and subsurface explorations, laboratory tests and - inspections of samples, materials and equipment; appropriate professional interpretations of all of the foregoing; environmental assessment and impact statements; zoning, deed and other land use restriction; and other special data or consultations not covered in Section 2; all of which ENGINEER may rely upon in performing his services. 3.4. (Not applicable). 3.5. Arrange for access to and make all provisions for ENGINEER to enter upon public and private property as required for ENGINEER to perform his services. 3.6. Examine all studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by ENGINEER, obtain advice of an attorney, insurance counselor and other consultants as OWNER deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of ENGINEER. 3.7. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. 3.8. Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER may require or ENGINEER may reasonable request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid to him under the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule or regulation applicable to their performance of the work. 3.9. Designate a person to act as OWNER's representative with respect to the services to be rendered under this Agreement, Such person shall have . complete authority to transmit instructions, receive information, interpret and define OWNER's policies and decisions with respect to materials, equipment, elements and systems pertinent to ENGINEER's services. 3.10. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of ENGINEER's services, or any defect in the work of Contractor(s). -9- 3.11 Furnish, or direct ENGINEER to provide, necessary Additional Services as stipulated in Section 2 of this Agreement or other services as required. 3.11.1 Obtain the necessary lands, easements and rights of way for the construction of the work. 3.11.2 Pay the cost of making necessary soundings, borings, analyses of materials and laboratory work exclusive of the ENGINEER'S supervision thereof:. 3.11.3 Pay all plan review costs and all cost of advertising in connection with the Project. 3.12 Bear all costs incident to compliance with the requirements of this Section 3. 3.13. The following Exhibits are attached to and made a part of this Agreement. 3.13.1 Exhibit A "Further Description of Basic Engineering Services and Related Matters" consisting of three pages. 3.13.2 (Not Applicable). 3.14. This Agreement (consist of pages 1 - 16, inclusive), together with the Exhibits and schedules identified above constitute the entire agreement between OWNER and ENGINEER and supersede all prior written or oral understandings. This Agreement and said Exhibits and schedules may only be amended, supplemented, modified or cancelled by a duly executed written instrument. SECTION 4 - PERIOD OF SERVICE 4:1 The provisions of this Section 4 and the various rates of compensation for ENGINEER'S services provided for elsewhere in this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion of the Construction Phase. ENGINEER's obligation to render services hereunder will extend for a period which may reasonably be required for the design, award of contracts and construction of the Project including extra work required extensions thereto. 4.2. (Not Applicable) 4.3 ENGINEER shall proceed with the performance of the services called for in the Preliminary Design Phase, and shall submit preliminary design documents and an opinion of probable Project Cost within the stipulated period indicated in paragraph 3 of Exhibit A "Further Description of Basic Engineering Services and Related Matters" authorization to proceed with that phase of services. - 10 - 4.4:: After acceptance by OWNER of the Preliminary Design Phase documents indicating any specific modifications or changes in the extent of the Project desired by OWNER, and upon authorization from OWNER, ENGINEER shall proceed with the performance of the services called for in the Final Design Phase; and shall deliver Contract Documents within the stipulated period indicated in paragraph 4 of Exhibit A "Further Description of Basic Engineering Services and Related Matters" after authorization to proceed with that phase of services. 4.5 ENGINEER's services under the Preliminary Design Phase and Final Design Phase shall each be considered complete at the date when the submissions for that phase have been received by OWNER. r + 4.6 After acceptance by OWNER of the ENGINEER's Drawings, Specifications, and other -Final Design Phase documentation and upon authorization to proceed, ENGINEER shall proceed with performance of- the services called for in the Bidding Phase, This Phase shall terminate and .the services to be rendered thereunder shall be considered complete upon commencement of the Construction Phase (except as maybe otherwise required to complete the services called for in paragraph 6.2.2.5). 4.7 The Construction Phase will commence with the execution of the prime contract to be executed for the work of the Project and will terminate upon written approval by ENGINEER of final payment on the prime contract to be completed. Construction Phase services may be rendered at different times in respect of separate prime contracts if the Project involves more than one prime contract. 4.8. If OWNER has requested significant modifications or changes in the extent of the Project, the time of performance of ENGINEER's services and his various rates of compensation shall be adjusted appropriately. 4.9. If OWNER fails to give prompt authorization to proceed with any phase of services after completion of the immediately preceding phase, or if the Construction Phase has not commenced within 120 calendar days (plus such additional time as may be required to complete the services called for under paragraph 6.2.2.5) after completion of the Final Design Phase, ENGINEER may, after giving seven days' written notice to OWNER, supsend services under this Agreement. 4.10, If ENGINEER's services for design or during construction of the, Project are delayed or suspended i.n'whole or in part by OWNER for more than three months for reasons beyond ENGINEER'S control, ENGINEER shall on written demaod:to OWNER (but without termination of this Agreement) be paid as provided in.paragraph 5.3.2. If such delay or suspension extends for more than one year for reasons beyond ENGINEER's control, or if ENGINEER for any reason is required to render services more than one year after. Substantial Completion of the first phase of construction, the various rates of compensation provided for elsewhere in this Agreement shall be subject to renegotiation. SECTION 5 - PAYMENTS-JO_ENG.INEER 5.1 Methods of Payment for Services and Expenses of ENGINEER 5.1.1 For Basic Services. OWNER shall pay ENGINEER for Basic Services rendered under Section 1, paragraphs 1.2 through 1.5 (as amended and supplemented by Exhibit A "Further Description of Basic Engineering Services and Related Matters") a lump sum fee of $3,350.00 5.1.2. For Construction Phase Services. OWNER shall pay ENGINEER for construction phase services rendered under Section 1, paragraph 1.6, on an hourly rate basis. construction management and field observation shall be payable at a rate of $35.00/hour. Other disciplines shall be billed at Direct Labor times a multiplier of 2.,74 (which includes overhead and profit). The total fee shall not exceed $2,500.00, provided that the construction work is performed within 60 calendar days, as will be allotted in the contract specifications. 5.1.3. For Additional Services. OWNER shall pay ENGINEER for Additional services rendered under Section 2 as follows: 5.1.3.1. General. For Additional Services rendered under paragraphs 2.1.1 through 2.1.17, inclusive (except services covered by paragraph 2.1.7 and services as a consultant or witness under paragraph 2.1.16.), on the basis of Direct Labor Costs times a factor of 2.74 for services rendered by principals and employees assigned to the Project. 5.1.3.2. (Not Applicable) 5.1.3.3. Serving as a Witness. Fgr.the services rendered by principals and employees as consultants or witnesses in any litigation, hearing or proceeding in accordance with paragraph 2.1.16, at the rate of $520 per day or any portion thereof (but compensation for time spent in preparing to appear in any such litigation, hearing or proceeding will be on the basis provided in paragraph 5.1.3:1). 5.1.4. Reimbursable Expenses. In addition to payments provided for in paragraphs 5.1.1, 5.1.2, and 5.1.3. OWNER shall allow ENGINEER to recoup the actual costs of.reproducing the Plans and Specifications by charging the prospective bidders a fee for sets of bid documents. 5.2 Times of Payments 5.2.1. ENGINEER shall submit monthly statements for Basic and Additional Services rendered. The statements will be based upon ENGINEER's estimate of the proportion of the total services actually completed at the time of billing. OWNER shall make prompt monthly payments. -in response to ENGINEER's monthly statements. 5.3 Other Provisions Concerning Payments --12 5.3.1. If OWNER fails to make any payment due ENGINEER for services and expenses within sixty days after receipt of ENGINEER's bill therefor, the amounts due ENGINEER shall include a charge at the rate of 1% per month or the maximum rate allowed by law, whichever is less, from said sixtieth day, and in addition, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement until he has been paid in full all amounts due him for services and expenses. 5.3.2. In the event of termination by OWNER under paragraph 7.1 upon the completion of any phase of the Basic Services, progress payments due ENGINEER for services rendered through such phase shall constitute total payment for such services. 5.4 Definitions 5.4.1. The Direct Labor Costs used as a basis for payment mean salaries and wages (basic) paid to all personnel engaged directly on the Project, including, but not limited to, engineers, surveyors, designers, draftsmen, specifications writers, estimators, other technical personnel, stenographers, typists and clerks. SECTION 6.- CONSTRUCTION COST AND OPINIONS OF COST 6.1 Construction Cost. The construction cost of the entire Project (herein referred to as "Construction Cost") means the total cost of the entire Project to OWNER, but it will not include ENGINEER's compensation and expenses, the cost of land, right-of-ways, or compensation for or damages to, properties unless . this Agreement so specifies, nor -will it include OWNER's legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project. 6.2 Opinions of Cost 6.2.1, Since ENGINEER has no control over the cost of labor, materials, equipment or services -furnished by others, or over the Contractor(s)' methods of determining prices, or over competitive bidding or market conditions, his opinions of probable Project Cost and Construction Cost provided for herein are to be made on the basis of his experience and qualifications and represent his best judgment as an experienced and qualified professional engineer, familiar with the construction industry; but ENGINEER cannot and does not guarantee that proposals, bids or actual Project or Construction Cost will not vary from opinions of probable cost prepared by him. If prior to the Bidding or NegotidtirigsPhase OWNER wishes greater assurance as to Project or Construction Cost he shall employ an independent cost estimator as provided in paragraph 3.8. SECTION 7 - GENERAL CONSIDERATIONS 7.1 Termination The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. 13 - 7.2 Reuse of Documents All documents including Drawings and Specifications prepared by ENGINEER pursuant to this Agreement shall become the property of.the OWjJER. 7.3. Controlling Law This Agreement is to be governed by the law of the State of Arkansas. 7.4. Successdrs and Assigns 7?4.1., OWNER AND ENGINEER each binds himself and his partners, successors, executors, adminstrators, assigns and legal representatives to the other party to this Agreement and to the partners, successors, executors, administrators, assigns and legal representatives of such other party, in respect to all covenants, agreements and obligations of this Agreement. 7.4.2, Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under or interest in (including), but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other, except as stated in paragraph 7.4.1 and except to the extent that the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent ENGINEER from employing such independent consultants, associates and subcontractors as he may deem appropriate to assist him in the performance of services hereunder. 7.4.3. Nothing herein shall be construed to give any rights or benefits hereunder to anyone other than OWNER and ENGINEER. SECTION 8 - SPECIAL PROVISIONS, EXHIBITS and SCHEDULES. 8.1 This Agreement is subject to the following special provisions. 8.1.1 Access to the Records. The OWNER, the U.S. Department of Housing and Urban Development, the comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the Engineer doing work under this contract which are directly pertinent to a specific grant program for the purpose of making audit, examination, excerpts, and transcriptions. 8.1.2. Insurance. ENGINEER shall secure and maintain such insurance as will protect him from claims under the Arkansas Workmen's Compensation Act and from claims for bodily injury, death, or property damage which may arise from the performance of his services under this contract. ENGINEER shall file certificates of insurance required hereby with OWNER before commencing work hereunder. 8.1.3. Equal Opportunity Provisions. During the performance of this Contract, the Engineer agrees as follows: - 14 - 8.1.3.1. The ENGINEER will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The ENGINEER will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include; but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates�of pay or other forms of compensation; and selection for training, including apprenticeship. The ENGINEER agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Contracting Officer setting forth the provisions of this nondiscrimination clause. 8.1.3:2. The ENGINEER will, in all"solicitations or advertisements for employees placed .by or on behalf of the ENGINEER, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 8.1.4. Conflict of Interest 8.1.4.1. Interest of OWNER. No officer, employee, or agent of the OWNER who exercises any functions or responsibilities in the review or approval or in connection with the carrying out of the project to which this Contract pertains shall have any personal interest, direct or indirect in this Contract. 8.1.4:2. Interest of Certain Federal Officials. No to the Congress of the United States, and no Resident be admitted to any share or part of this Contract or herefrom. 8.1.4.3. (Not Applicable) - 15 - member of or delegate Commissioner, shall to any benefit to arise IN WITNESS WHEREOF, the parties have made and executed this Agreement as of the day and year first above written. ENGINEER: OWNER: McCLELLAND CONSULTING ENGINEERS, INC. CJI"F FAYMEyLJ�d he, WV6&vul McClelland, P.E. J ident / a�9f�s Date: ) A5 Date: --- (SEAL) ^% a Attest: Attest: Y: By: C�/ • yr y ?� .' J Date: Date: 4 .16 - EXHIBIT A FURTHER DESCRIPTION OF BASIC ENGINEERING SERVICES AND RELATED MATTERS A. General 1. This is an exhibit attached to, made a part of and incorporated by reference into the Agreement made on , 19 between the City of Fayetteville, Arkansas OWNER and :ENGINEER) providing for professional engineering services. The Services of ENGINEER as described in Section 1 of the Agreement are amended or supplemented as indicated below and the time periods for the performance of certain services as indicated in Section 4 of the Agreement are stipulated as indicated below. 2. During the Preliminary and Final Design Phases ENGINEER shall: A. Coordinate with the Arkansas Highway and Transportation Department to determine the size and type of drainage structure that will be required to underdrain State Highway 16W at the Rupple Road intersection and assist the OWNER in obtaining the necessary permit for construction, including processing the application for the permit. The City will post any required bond. Design the drainage structure under Rupple Road on the north side of Highway 16 West. Also.design the drainage structure running east and west along Highway 16 West to drain to the drainage structure at Rupple Road as far as terrain topography will permit. Design the drainage structure running northand south along Rupple Road to the City limits on the north side of Highway 16 West and Owl Creek on the south end. The depth of this drainage structure should be established to facilitate draining the area east and west of Rupple Road along each side of Highway 16 as far as possible. Prepare specifications for these drainage structures. The basis for specifications along Rupple Road shall be open borrow ditch(es) with rip -rap and/or.check dams with alternate deductive specifications for concrete lined ditches or storm culverts. The specifications for structures along Highway 16 West shall be open borrow ditches or as required by the Arkansas Highway and Transportation Department. E. Prepare cost estimate, take bids and tabulate same. F. Prepare legal descriptions and tract maps for all drainage easements and street right-of-way. G. Determine the prorata share of the cost of this project for each parcel of land under present ownership for the entire drainage area. Also determine the prorata cost per acre within the drainage area. A-1 3. During the Construction Phase ENGINEER shall: A. Provide for periodic visits to the job sites to observe the overall progress and quality of the executed work, in order to certify Contractor's compliance with the Plans and Specifications. B. Provide a project engineer to manage and coordinate the construction activities. C. Provide other personnel such as secretaries, draftsmen, engineering technicians, etc., as may be needed to assist the project engineer in the various activities that may be required. D. Prepare monthly partial payment estimates and a final payment estimate to the Contractor. E. Provide for final review of the project in the company of representatives of the OWNER, the project engineer, a representative of the contractor and any other party designated by the OWNER. A-2