HomeMy WebLinkAbout42-85 RESOLUTIONRESOLUTION NO. 4285
SCANNED
A RESOLUTION AJTHORIZING THE MAYOR AND CITY CLFRK
TO EXECUTE A CONTRACT WITH MCCLELLAND (INSULTING
ENGINEERS. INC. FORSURVEYING,DESIGNANDCONSTRUCTION
MANAGEMENT OF DRAINAGE STRUCTURES ON NORTH OAKLAND
STREET.
BE IT RESOLVED BY THE BOARD OF DIRECIORS OF THE CITY OF FAYEITEVILLE,
ARKANSAS:
That the Mayor and City Clerk are hereby authorized and directed
to execute a contract with McClelland Consulting Engineers, Inc. for
,surveying, design and construction management of drainage structures
on North Oakland Street. A copy of the contract authorized for execution
hereby is attached hereto marked Exhibit "A" and made a part hereof.
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PASSED AND APPROVED this -16 day of April
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APPROVED
, 1985.
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STANDARD FORM OF AGREEMENT
BETWEEN
OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT made as of
the City of Fayetteville, Arkansas
02/ , 1935 between
(OWNER) and McClelland
Consulting Engineers, Inc. (ENGINEER). OWNER intends to
A. Survey and monument the Right -of -Way for North Oakland
(Mount Comfort to Sycamore) and the south side of Sycamore
(Leverett to North Oakland).
B. Provide Design Services for storm drainage on North Oakland
(Mount Comfort to Sycamore) and the south side of Sycamore
(Leverett to North Oakland) and the continuation of sidewalk
on the east side of North Oakland.
C. Provide construction management for storm drainage
construction and sidewalk construction.
(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.
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1.2 (Not Applicable)
1.3 Preliminary Design Phase
After authorization to proceed, and in conjunction with the Report Phase,
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 as
enclosures with the Report mentioned above.
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".
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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.
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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 as an experienced and qualified design
professional 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 and approve (or take other appropriate action in respect of)
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
Oven 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
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decisions on all claims of OWNER and Contractor(s) relating to the
acceptability of the work or the interpretation of the requirements of the
Contract Documents pertaining to the execution and progress of the work,
but ENGINEER shall not be liable for the results of any such
interpretations or decisions rendered by him in good faith.
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); but by recommending any payment
ENGINEER will not thereby be deemed to have represented that continuous or
exhaustive examinations have been made by ENGINEER to check the quality or
quantity of the work or to review the means, methods, sequences, techniques
or procedures of construction or safety precautions or programs incident
thereto or that ENGINEER has made an examination to ascertain how or for
what purposes any Contractor has used the moneys paid on account of the
Contract Price, or that title to any of the work, materials or equipment
has passed to OWNER free and clear of any lien, claims, security interests
or encumbrances, or that Contractor(s) have completed their work exactly in
accordance with the Contract Documents.
1.6.6. Conduct an inspection to determine of the Project is substantially
complete and a final inspection to determine if the work has been completed
in accordance With the Contract Documents and if each Contractor has
fulfilled all of his obligations thereunder so 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), but any such recommendation and notice shall
be subject to the limitations expressed in paragraph 1.6.5.
1.6.7. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or subcontractor, or any of the Contractor(s)1 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.
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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.
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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 of 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. Prepiring 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. One
set 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 one
hundred, twenty 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).
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2.1.17. Additional services in 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. 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. 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.
2.2.3. (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.
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
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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. 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.
3.5. 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.
3.6. 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.
3.7. 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.
3.8. 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.
3.9. 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).
3.10. Furnish, or direct ENGINEER to provide, necessary Additional
Services as stipulated in Section 2 of this Agreement or other services as
required.
3.11. Bear all costs incident to compliance with the requirements of this
Section 3.
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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. However,
it is understood that construction will take place in two phases.
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" after authorization to proceed
with that phase of services.
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.
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 may be 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
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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, suspend
services under this Agreement.
4.10. If ENGINEER's services for design or during construction of the
Project are delayed or suspended in whole or in part by OWNER for more than
three months for reasons beyond ENGINEER's control, ENGINEER shall on
written demand 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 TO ENGINEER
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 $5,624.00.
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 in accordance with the COST OR PRICE SUMMARY forms
attached hereto. The total fee shall not exceed $3,237.00 and overhead
shall be charged at 1.30 times the hourly direct labor rate, and a
professional fee in the amount of S422.00 shall be paid to the ENGINEER.
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 2.1.17 and
services as a consultant or witness under paragraph 2.1.16), on the basis
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of Direct Labor Costs times a factor of 2.65 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. For 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).
5.2 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.
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
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.
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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, rights-of-way, 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 Negotiating Phase 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.
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7.2 Reuse of Documents
All documents including Drawings and Specifications prepared by ENGINEER
pursuant to this Agreement are instruments of service in respect of the
Project. They are not intended or represented to be suitable for reuse by
OWNER or others on extensions of the Project or on any other project. Any
reuse without written verification or adaptation by ENGINEER for the
specific purpose intended will be at OWNER's sole risk and without
liability or legal exposure to ENGINEER; and OWNER shall indemnify and hold
harmless ENGINEER from all claims, damages, losses and expenses including
attorneys' fees arising out of or resulting therefrom.
7.3 Controlling Law
This Agreement is to be governed by the law of the principal place of
business of ENGINEER.
7.4 Successors and Assigns
7.4.1. OWNER and ENGINEER each binds himself and his partners, successors,
executors, administrators, 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.
7.5. Arbitration
7.5.1. All claims, counterclaims, disputes and other matters in questions
between the parties hereto arising out of or relating to this Agreement or
the breach thereof will be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American Arbitration
Association then obtaining, subject to the limitations and restrictions
stated in paragraphs 7.5.3 and 7.5.4 below. This Agreement so to arbitrate
and any other agreement or consent to arbitrate entered into in accordance
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herewith as provided in this paragraph 7.5 will be specifically enforceable
under the prevailing arbitration law of any court having jurisdiction.
7.5.2. Notice of demand for arbitration must be filed in writing with the
other parties to this Agreement and with the American Arbitration
Association. The demand must be made within a reasonable time after the
claim, dispute or other matter in question has arisen. In no event may the
demand for arbitration be made after institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would
be barred by the applicable statute of limitations.
7.5.3. All demands for arbitration and all answering statements thereto
which include any monetary claim must contain a statement that the total
sum or value in controversy as alleged by the party making such demand or
answering statement is not more than $200,000 (exclusive of interest and
costs). The arbitrators will not have jurisdiction, power or authority to
consider, or make findings (except in denial of their own jurisdiction)
concerning, any claim, counterclaim, dispute or other matter in question
where the amount in controversy thereof is more than $200,000 (exclusive of
interest and costs) or to render a monetary award in response thereto
against any party which totals more than $200,000 (exclusive of interest
and costs).
7.5.4. No arbitration arising out of, or relating to, this Agreement may
include, by consolidation, joinder or in any other manner, any person or
entity who is not a party to this Agreement.
7.5.5. By written consent signed by all the parties to this Agreement and
containing a specific reference hereto, the limitations and restrictions
contained in paragraphs 7.5.3 and 7.5.4 may be waived in whole or in part
as to any claim, counterclaim, dispute or other matter specifically
described in such consent. No consent to arbitration in respect of a
specifically described claim, counterclaim, dispute or other matter in
question will constitute consent to arbitrate any other claim,
counterclaim, dispute or other matter in question which is not specifically
described in such consent or in which the sum or value in controversy
exceeds $200,000 (exclusive of interest and costs) or which is with any
party not specifically described therein.
7.5.6. The award rendered by the arbitrators will be final, not subject to
appeal and judgment may be entered upon it in any court having jurisdiction
thereof.
SECTION 8 - SPECIAL PROVISIONS, EXHIBITS and SCHEDULES.
8.1 This Agreement is subject to the following special provisions.
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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 Workmen's Compensation Acts and from
claims for bodily injury, death, or property damage which may arise from
the performance of his services under this contract.
8.1.3. Equal Opportunity Provisions. During the performance of this
Contract, the Engineer agrees as follows:
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 member of or delegate
to the Congress of the United States, and no Resident Commissioner, shall
be admitted to any share or part of this Contract or to any benefit to
arise herefrom.
8.1.4.3 Interest of Engineer. The ENGINEER covenants that he presently
has no interest and shall not acquire any interest, direct or indirect, in
the above described project area or any parcels therein or any other
interest which would conflict in any manner or degree with the performance
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•
of his services hereunder. The ENGINEER further covenants that in the
performance of this Contract, no person having any such interest shall be
.employed.
8.1.5 Other Provisions. In connection with the Project, the OWNER shall:
8.1.5.1 Give thorough consideration to all documents presented by the
ENGINEER and inform the ENGINEER of all decisions within a reasonable time
so as not to delay the work of the ENGINEER.
8.1.5.2 Make provision for the employees of the ENGINEER to enter public
and private lands as required for the ENGINEER to perform necessary
preliminary surveys and investigations.
8.1.5.3 Obtain the necessary lands, easements and rights of way for the
construction of the work.
8.1.5.4 Pay the cost of making necessary soundings, borings, analyses of
materials and laboratory work exclusive of the ENGINEER's supervision
thereof.
8.1.5.6 Pay all plan review costs and all cost of advertising in
connection with the Project.
8.2 The following Exhibits are attached to and made a part of this
Agreement:
8.2.1 Exhibit A "Further Description of Basic Engineering Services and
Related Matters" consisting of three pages.
8.2.2. Exhibits 8.1 and 6.2, COST OR PRICE SUMMARY FORMAT FOR CONTRACT
UNDER U.S. DI -IUD GRANTS, consisting of two pages.
8.3 This Agreement (consist of pages 1 to 18, 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.
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e..
IN WITNESS WHEREOF, the parties have made and executed this Agreement as of
the day and year first above written.
ENGINEER:
McCLEL AND CONSULTING ENG NEERS
INC.
James E. McClelland, P.E.
President
Date: L.1-/thr
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Atli/1r
Date:
-18-
OWNER:
CI16;a:217
Date:
(SEAL)
Attest:
By:
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Date: 97-a5
•-•
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 1 1985 between the
City of Fayetteville, Arkansas (OWNER) and (ENGINEER) providing for
professional engineering services. The Services of ENGINEER as
described in Section 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 Design Phases ENGINEER shall:
A. Survey and Monument Street Right -of -Ways. The work to be done
under this item shall consist of the following:
I) Perform necessary field surveys and office research needed
to establish the right-of-way boundary for North Oakland and
the south side of Sycamore Street.
2) Set iron pin monuments at all points of change in direction
of the boundary.
3) Prepare a plat of the boundary showing any apparent
encroachments.
B. Field Surveys and Basic Drawings. The work to be done under this
Item shall consist of the following:
I) The location of all existing utilities as best can be
located without excavation, and the location of apparent
street right-of-way lines.
2) Profiles as necessary to provide information to draw cross
sections on maximum 100 -foot stations.
3) Advise the OWNER as to soils investigations that might be
required.
4) Preparation of copies of all reduced field survey notes to
be delivered to Community Development by the ENGINEER.
5) The plotting of the field surveys including plan and profile
and cross sections on 22 -inch or 24 -inch by 36 -inch plan
A - 1