HomeMy WebLinkAbout46-89 RESOLUTIONRESOLUTION NO. 46-89
A RESOLUTION AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A CHANGE ORDER TO THE CITY'S
CONTRACT WITH ETC ENGINEERS, INC. FOR SEWER
FLOW MONITORING DESIGN TO INCLUDE WATER WORKS
TELEMETRY.
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the Mayor and City Clerk are hereby
authorized and directed to execute a ---change order to the City's
contract with ETC Engineers, Inc. for sewer flow monitoring to
include water works telemetry. A copy of the change order
authorized for execution hereby is attached hereto marked Exhibit
•"A" and made a part hereof.
PASSED AND APPROVED this 16th day of May 1989.
e.
ATTEST
Cti
Clerk
APPROVED
BY: 7/S01/744141,
Mayor
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STANDARD FORM OF AGREEMENT
BETWEEN
OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
(04,Sted
tifi°44 9
5619;47407
THIS IS AN AGREEMENT made as of // , 19
between City of Fayetteville, Arkansas, (OWNER) and ETC
Engineers, Inc., 1510 South Broadway, Little Rock, AR 72202,
(ENGINEER). OWNER intends to Design and Install a permanent flow
monitoring system for the Wastewater Collection Facilities of the
City of Fayetteville, (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.
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ENGINEER shall provide professional 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, hydraulic,
environmental, electrical, computational and electronic data
processing engineering services and customary incidental
services thereto.
1.2. Study and Report Phase.
After written authorization to proceed, ENGINEER shall:
1.2.1. Consult with OWNER to clarify and define OWNER's
requirements for the Project and review the work plan submitted
earlier for modification.
1.2.2. Advise OWNER as to the necessity of OWNER's providing or
obtaining from others data or services of the types described in
paragraph 3.3, and act as OWNER's representative in connection
with any such services.
1.2.3. Provide analyses of OWNER's needs, planning surveys,
site evaluations and comparative studies of prospective sites and
solutions.
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1.2.4 Provide all services required to accomplish the modified
work plan.
1.2.5. Provide a general economic and financial analysis of
OWNER's requirements applicable to various alternatives.
1.2.6. Prepare a Report containing schematic layouts, sketches
and conceptual design criteria with appropriate exhibits to
indicate clearly the considerations involved and the alternative
solutions available to OWNER and setting forth ENGINEER's
findings and recommendations with opinions of probable costs for
the Project, including Construction Cost, contingencies,
allowances for charges of all professionals and consultants,
allowances for the cost of land and rights-of-way.
1.2.7. Furnish five copies of the Report and present and review
it in person with OWNER.
1.3. Preliminary Design Phase.
After written authorization to proceed with the Preliminary
Design Phase, ENGINEER shall:
1.3.1. In consultation with OWNER and on the basis of the
accepted Report, determine the extent of the Project.
1.3.2. Prepare preliminary design documents consisting of
final design criteria, preliminary drawings and outline
specifications.
1.3.3. Based on the information contained in the preliminary
design documents, submit a revised opinion of probable Project
Costs.
1.3.4. Furnish five copies of the above preliminary design
documents and present and review them in person with OWNER.
-1.4. Final Design Phase.
After written authorization to proceed with the Final Design
Phase, ENGINEER shall:
1.4.1. On the basis of the accepted preliminary design documents
and the revised opinion of probable Project Cost, prepare for
incorporation in 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 for, and assist in the preparation of, the required
documents so that OWNER may apply for approvals of such
governmental authorities as have jurisdiction over design
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criteria applicable to th6 Project, and assist in obtaining such
approvals by participating in submissions to and negotiations
with appropriate authorities.
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 and furnish a
revised opinion of probable Project Cost 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 (where appropriate)
bid forms, invitations to bid and instructions to bidders, and
assist in the preparation of other related documents.
1.4.5. Furnish five copies of the above documents and present
them in person with OWNER.
1.5. Bidding or Negotiating Phase.
After written authorization to proceed with the Bidding or
Negotiating Phase ENGINEER shall:
1.5.1. Assist OWNER in obtaining bids or negotiating proposals
for each separate prime contract for construction, materials,
equipment and services.
1.5.2. Consult with and advise OWNER as to the acceptability of
subcontractors and other persons and organizations proposed by
the prime contractor(s) (hereinafter called "Contractor(s)") 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(s) when
substitution prior to the award of contracts is allowed by the
bidding documents.
1.5.4. Assist OWNER in evaluating bids or proposals and in
assembling and awarding contracts.
The duties and responsibilities of ENGINEER during the Bidding or
Negotiating Phase are amended and supplemented as indicated
in paragraph 5 of Exhibit A "Further Description of Basic
Engineering Services and Related Matters".
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6. Construction Phase.
During the Construction Phase ENGINEER shall:
1.6.1. Consult with and advise OWNER and act as his
representative.
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 required to make exhaustive or
continuous on-site inspections to check the quality or quantity
of such work. 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 (as that term is defined in the
aforesaid Standard General Conditions) 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 instruction 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 in 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
of 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 of 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 of encumbrances, or that Contractor(s) have completed
their work exactly in accordance with the Contract Documents.
1.6.6. Conduct an inspection to determine if 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 subcontractor' 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)1 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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1.6.8. The ENGINEER shall prepare a O&M manual to be used by the
City staff during the life of the project. The O&M Manual will
be based on the manufacturer's submitted documents.
1.6.9. The ENGINEER shall prepare all computer programs to
interpret the collected data, to prepare presentation documents
and to achieve the collected data for future retrieval.
1.6.10. The ENGINEER shall obtain all warranty documents from
the Contractor and Manufacturer and shall personally hand over
the warranties to the OWNER.
1.6.11 The ENGINEER shall provide to OWNER a complete set of As -
Built Drawings and all other shop drawings and manufacturers
maintenance documents as submitted by the Contractor.
SECTION 2 - ADDITIONAL SERVICES OF ENGINEER
2.1. General
If authorized in writing by OWNER, ENGINEER shall furnish or
obtain from others Additional Services which are not considered
part of this project.
2.1.1. Services to make other investigations or evaluations of
existing conditions or facilities, or to verify other existing
problems and develop solutions.
2.1.2. 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.
2.1.3. Providing renderings or models for OWNER's use.
2.1.4. Preparing documents for alternate bids requested by OWNER
for Contractor(s)1 work which is not executed or documents for
out -of -sequence work.
2.1.5. 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 days, (4) acceleration of
the progress schedule involving services beyond normal working
hours, and (5) default by Contractor(s).
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2.1.6. Additional services in connection with the Project,
including services normally furnished by OWNER and services to
otherwise provided for in the Agreement.
2.2. Resident Services During Construction.
2.2.1. If requested by OWNER or recommended by ENGINEER and
agreed to in writing by the other, 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).
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 (if furnished) 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)1 failure to perform their work in
accordance with the Contract Documents.
2.2.3. If OWNER designates another person to represent OWNER at
the Project site who is not ENGINEER's agent or employee, the
duties, responsibilities and limitations of authority of such
other person and the effect thereof on the duties and
responsibilities of ENGINEER under this Agreement will be set
forth in an exhibit that is to be identified, attached to and
made a part of this Agreement before such services begin.
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. Arrange for access to and make all provisions for ENGINEER
toenter upon public and private property as required for
ENGINEER to perform his services.
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3•4-•.4Examine all studies; reports, 'sketChes ; Drawings;
Specifications, ipropoealsand`lether documentst; presented ' by
ENGINEER, obtain •:''-acivicel.of an: attorney; tinstirance "counselor - and
other:consultants as7OWNER deems appropriate for such examination
and render in writing decisions pertaining thereto within a
reasonable 'time t. so :as Ainot toit delay the serVices-4-of ENGINEER.'
e^:ccunr
opLt'on 0/ PTV
3 Furnishrlapprovalsiia-rid::permits ronn-ralll governmental
authorities t having j trisdictioncuoverirthe Project rand euch
approvals-% and'Cconsents.AlfromtothersVas 'may bet necessary for
completion ofnthetPrOject. 1 inti Ore itgl L e: Win tdrU • v.tr
Ct...nti- zit Cpacurnty.: •z,r: c r Pr',11.1 opinion t- 7- irrc,DaFt C,,et
3 • 6: L_TIDes-ignate in co,writing .1 a person to fatt ae OWNER' s
representativerowith respect:to the 'services) totbe 6rendered tunder
this, Agreement. Such person shall have complete authority to
transmit instructions, receive information, interpret and define
OVNERt s. policies andfidecisions With t; respectl to 'materials
equipmentnelements and. systems Pertinenttto .ENGINEERse4serVicest.
c.tc. thh c t ) the cit
3-. 7 e.j0-e.Give prompt 3 written notice to ENGINEER 1whenetier OWNER)
observes-otor aotherwise. becomes ; aware Npf.tanyxdevel OpMent-(that
affects gtheitcopet or- timing. of LENGINEER eervices tior any defect
in Ithe: work of :LContractor(s) bt iv ine sow 11 or go 'Ter n -nt I
aut-.Jritt.-‘ having larialintien eim3..dge opplic..2J1u
3. 8 Itt. Furnish, or direct ENGINEER to provide, necessary
Additional Services as stipulated in Section 2 of this Agreement
or g,other. services tas,:required.t Ir f th a.,",T1111.fifs, Dr:laity
: rmej,t Are cith Drr I gn Ph ro-cua ntYiOn
3 .;9jBeari.t a11t costs,t incident mto3r2comp1'iance ttherl
requirementsiofithisiSection 3. 4, r 43*dr i...21(.14ELYR • itort -bct
• rith puree .e.to o tin Envie . '3id for e thn riJ.YJ OK?
9113.01 \ Till& Patar °. 411 tnerli tat: t. -1.11d the 47.n.777/to 4
bt rec, e •t-runriad; rbAIi. conlick iud cert.:letca.t,
r:t t SECTIO1k4,4=1; PERIOD:OF SERVICE 1 on cirrs at thc
(73:_tiationn •/71th pi-0cl- I iest,tt enor 4 p ••*-1/
bn
c!',,, j. tcs erre!. te thr: er v I c‘n -d in
4 .1.192,The provisions of this Section 4 and the various rates of
compensation for ENGINEER's services provided for elsewhere in
this Agreement have:, beernagreedito in • antic ipationhof i.thetbderiy
and, continuousprogressof the Project „through!. completion of the
Construction „Phase.: • •ENGINEER' sr obligationnto.c.render,iserVices
he'reundern.wi.11-77 extend: for dIperiod twhich may:, reasonably: be
reg14ired);fcintthe designiroward of k contracts :andlconstructionl of,
the Prolectincluding-extratwork andi reguirethextensions theretecfl
ti: ni,4(s4 max. -0 tirtn t cnn't
4.2. The services called for in the Study and Report Phase will
be -completed;:asiper..,tproposal.lignifie4ht 1st tcstioafl r -1141:e?
to the in:en.. ot r 0(ihrt, tin t.J.no pLtrovc1nCe
4 . 3 titlEAfterc.acceptance 4.by; OWNERI.ofs the ;Study candt_Reporty
dpcuments..insaicating_,any, specific modifications or changes in the
extent "-cif the' Project desired by OWNER, and upon written
authorization—from; tOWNERIeliENGINEERt shalr-cproceed'aiwithYrtlie)
pz;ctcci wit.i Any Pba. • .z vic 1.1 tkon of the
J4 (iy inveceding rhai. or Cemtructitin Phase h.a3 nr4C.
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performance of the services called for in the Preliminary Design
Phase, and shall submit preliminary design documents and a
revised opinion of probable Project Cost as per proposed schedule
in proposal documents.
4.4. After acceptance by OWNER of the Preliminary Design Phase
documents and revised opinion of probable Project Cost,
indicating any specific modifications or changes in the extent of
the Project desired by OWNER, and upon written authorization
from OWNER, ENGINEER shall proceed with the performance of the
services called for in the Final Design Phase; and shall deliver
Contract Documents and a revised opinion of probable Project Cost
for all work of Contractor(s) on the Project within the
stipulated period indicated in the project schedule to be
determined.
4.5. ENGINEER's services under the Study and Report Phase,
Preliminary Design Phase and Final Design Phase shall each be
considered complete at the earlier of (1) the date when the
submissions for that phase have been accepted by OWNER or (2)
thirty days after the date when such submissions are delivered to
OWNER for final acceptance, plus such additional time as may be
considered reasonable for obtaining approval of governmental•
authorities having jurisdiction over design criteria applicable
to the Project.
4.6. After acceptance by OWNER of the ENGINEER's Drawings,
Specifications and other Final Design Phase documentation
including the most recent opinion of probable Project Cost and
upon written authorization to proceed, ENGINEER shall proceed
with performance of the services called for in the Bidding or
Negotiating Phase. This Phase shall terminate and the services
to be rendered thereunder shall be considered complete upon
commencement of the Construction Phase or upon cessation of the
negotiations with prospective Contractor(s) (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 first prime contract to be executed for the work of the
Project or any part thereof, and will terminate upon written
approval by ENGINEER of final payment on the last 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 written authorization to
proceed with any phase of services after completion of the
immediately preceding phase, or if the Construction Phase has not
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commenced within 365 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 the 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, the various rates of compensation
provided for elsewhere in this Agreement shall be subject to
renegotiation.
PROFESSIONAL FEE PLUS EXPENSES
SECTION 5 - PAYMENTS TO ENGINEER
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5.1. Methods of Payments for Services and Expenses of ENGINEER.
5.1.1. For Basic Services. OWNER shall pay ENGINEER for Basic
Services rendered under Section 1 (as amended and supplemented by
Exhibit A "Further Description of Basic Engineering Services and
Related Matters") a professional fee of $9,747 (max) and $7,146
(min) plus an amount equal to ENGINEER's Direct Labor Costs times
a factor of 1.4 for overhead
5.1.2. Additional Services. OWNER shall pay ENGINEER for
Additional Services rendered under Section 2 as follows:
5.1.2.1. 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 1.4 for services rendered by principals
and employees assigned to the Project.
5.1.2.2. Special Consultants. For services and
reimbursable expenses of special consultants employed by ENGINEER
pursuant to paragraph 2.1.7 or 2.1.17, the amount billed to
ENGINEER therefor times a factor of 1.10.
5.1.2.3. 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 $300 per day or any portion thereof (but
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compensation for time spent in preparing to appear in any such
litigation, hearing or proceeding will be on the basis provided
in paragraph 5.1.2.1).
5.1.2.4. Resident Project Services. For resident services
during construction furnished under paragraph 2.2.1, on the basis
of Direct Labor Costs times a factor of 1.4 for services rendered
by principals and employees assigned to field offices in
connection with resident Project representation.
5.1.3. For Reimbursable Expenses. In addition to payments
provided for in paragraphs 5.1.1 and 5.1.2, OWNER shall pay
ENGINEER the actual costs of all Reimbursable Expenses incurred
in connection with all Basic and Additional Services.
5.1.4. The "Direct Labor Costs" and "Reimbursable Expenses" will
have the meanings assigned to them in paragraph 5.4.
5.1.5 The estimated total Engineering Cost is $110,00C (max) and
$47,000 (min).
5.2. Times of Payments.
5.2.1. ENGINEER shall submit monthly statements for basic and
Additional Services rendered and for Reimbursable Expenses
incurred. The amount of ENGINEER's professional fee billed 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.
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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 *see b(
in addition, ENGINEER may, after giving seven days' written low
notice to OWNER, suspend services under this Agreement until he
has been paid in full all amounts due him for services and
expenses.
*but not to exceed the maximum rate allowed by Arkansas law
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. In the event
of such termination by OWNER during any phase of the Basic
Services, ENGINEER will be paid for services rendered during that
phase on the basis of Direct Labor Costs times a factor of
2.5 for services rendered during that phase to date of
termination by principals and employees assigned to the Project.
In ,the event of any such termination, ENGINEER will be paid for
all unpaid Additional Services and unpaid Reimbursable Expenses,
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plus all termination expenses. Termination expenses mean
Reimbursable Expenses directly attributable to termination, which
shall include an amount computed as a percentage of total
compensation for Basic Services earned by ENGINEER to the date of
termination, as follows:
20% if termination occurs after commencement of the
•Preliminary Design Phase but prior to commencement of the
Final Design Phase; or
10% if termination occurs after commencement of the Final
Design Phase.
5.4. Definitions.
5.4.1. Direct Labor Costs used as a basis for payment mean
salaries and wages (basic and incentive) paid to all personnel
engaged directly on the Project, including, but not limited to,
engineers, architects, surveyors, designers, draftsmen,
specification writers, estimators, other technical personnel,
stenographers, typists and clerks; but does not include indirect
payroll related costs or fringe benefits. For the purposes of
this Agreement the hourly payroll costs for staffs are as shown
on the proposal.
5.4.2. Reimbursable Expenses mean the actual expenses incurred
directly or indirectly in connection with the Project for:
transportation and subsistence incidental thereto; obtaining bids
or proposals from Contractor(s); furnishing and maintaining field
office facilities; subsistence and transportation of Resident
Project Representatives and their assistants; toll telephone
calls and telegrams; reproduction of reports, Drawings,
Specifications, and similar Project -related items in addition to
those required under Section 1; and, if authorized in advance by
OWNER, overtime work requiring higher than regular rates.
Reimbursable Expenses• shall include the amount billed to ENGINEER
by special consultants employed to ENGINEER (other than as an
authorized Additional Service under Section 2) for such
consultants' services and Reimbursable Expenses times a factor of
1.10; and shall also include expenses incurred for compute time
and other highly specialized equipment, including an appropriate
charge for previously established programs and expenses of
photographic production techniques times a factor of
2.5
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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, or will it include OWNER's legal, accounting,
insurance counseling or auditing services, or interest and
financing charges incurred in connection with the Project.
(Construction Cost is one of the items comprising Project Costs
which is defined in paragraph 1.2.5.) When Construction Cost is
used as a basis for payment it will be based on one
of the following sources with precedence in the order listed for
work designed or specified by ENGINEER:
6.1.1. For completed construction work the total costs of all
work performed as designed or specified by ENGINEER.
6.1.2. For work designed or specified but no constructed,
the lowest bona fide bid received from a qualified bidder for
such work; or, if the work is not bid, the lowest bona fide
negotiated proposal for such work.
6.1.3. For work designed or specified but not constructed
upon which no such bid or proposal is received the most recent
estimate of Construction Cost, or, if none if available,
ENGINEER's most recent opinion of probable Construction Cost.
Labor furnished by OWNER for the Project will be included in the
Construction Cost at current market rates including a reasonable
allowance for overhead and profit. Materials and equipment
furnished by OWNER will be included at current market prices. No
deduction is to be made from ENGINEER's compensation on account
of any penalty, liquidated damages, or other amounts withheld
from payments to Contractor(s).
6.2. Opinions of Cost.
6.2.1. Since ENGINEER has no control over the cost of laborp
materials, equipment or services furnished by others, or over the
manufacturers' vendors' and Contractor(s)1 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, bid or actual Project or Construction Cost will
not vary from opinions of probable cost prepared by him. If
13
1.53
•
1
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.
6.2.2. If a Construction Cost limit is established by written
agreement between OWNER and ENGINEER, the following will apply:
6.2.2.1. The acceptance by OWNER at any time during the
Basic Services of a revised opinion of probable Project or
Construction Cost in excess of the then established cost limit
will constitute a corresponding revision in the Construction Cost
limit to the extent indicated in such revised opinion.
6.2.2.2. Any Construction Cost limit so established will
include a contingency of ten percent unless another amount is
agreed upon in writing.
6.2.2.3. ENGINEER will be permitted to determine what
materials, equipment, component systems and types of construction
are to be included in the Drawings and Specifications and to make
reasonable adjustments in the extent of the Project to bring it
within the cost limit.
6.2.2.4. If the Bidding or Negotiating Phase has not
commenced within six months after completion of the Final Design
Phase, the established Construction cost limit will not be
binding on ENGINEER, and OWNER shall consent to an adjustment in
such cost limit commensurate with any applicable change in the
general level of process in the construction industry between the
date of completion of the Final Design Phase and the date on
which proposals or bids are sought.
6.2.2.5. If the lowest bona fide proposal or bid exceeds
the established Construction Cost limit. OWNER shall (1) give
written approval to increase such cost limit, (2) authorize
negotiating or rebidding the Project within a reasonable time, or
(3) cooperate in revising the Project extent or quality. In the
case of (3), ENGINEER shall, without additional charge, modify
the Contract Documents as necessary to bring the Construction
Cost within the cost limit. The providing of such service will
be the limit of ENGINEER's responsibility in this regard and,
having done so, ENGINEER shall be •entitled to payment for his
services in accordance with this Agreement.
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.
14
1.54
•
•
•
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
Projects 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
excluding attorneys' fees arising out of or resulting therefrom.
Any such verification or adaptation will entitle ENGINEER to
further compensation at rates to be agreed upon by OWNER and
ENGINEER.
7.3. Controlling Law.
This Agreement is to be governed by the law ofArkansas.'.
plamaxmtXkaminEssxmdmwng%
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, any 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.
15
1.55
4
7.5. Arbitration.
.5.1. All claims, counterclaims, disputes and other matters
estion between the parties hereto arising out of or relating o
th s Agreement or the breach thereof will be decided by
arb tration in accordance with the Construction Ind stry
Arbis ation Rules of the American Arbitration Associatio then
obtai ng, subject to the limitations and restrictions s ated in
paragra•hs 7.5.3 and 7.5.4 below. This Agreement so to rbitrate
and any ther agreement or consent to arbitrate enter:d into in
accordanc= herewith as provided in this paragraph 7.5 will be
specificall enforceable under the prevailing arbit tion law of
any court ha ing jurisdiction.
7.5.2. Notice
with the other
Arbitration Ass
reasonable time a
question has arisen.
be made after institu
on such claim, disput
barred by the applicabl
f demand for arbitration must be
arties to this Agreement and
iation. The demand must
ter the claim, dispute
In no event may the
ion of legal or equi
or other matt
statute of lim°
7.5.3. All demands for a
thereto which include any m
that the total sum or value
party making such demand or a
$200,000 (exclusive of interest
not have jurisdiction, po
findings (except in deni
any claim, counterclai
where the amount in
(exclusive of intere
in response theret
$200,000 (exclusi
itration
etary
Inc
7.5.4. No arbitra
Agreement may incl
manner, any per
Agreement.
iled in writing
ith the American
be made within a
r other matter in
mand for arbitration
able proceedings based
in question would be
ations.
all answering statements
aim must contain a statement
ntroversy all alleged •by the
ing statement is not more than
nd costs). The arbitrators will
authority to consider, or make
own jurisdiction) concerning,
r other matter in question
reof is more than $200,000
o render a monetary award
which totals more than
hei
spute
versy th
costs) or
nst any part
nterest and cost
on arisihg out of,
el by consolidation, jo
or entity who is no
).
relating to, this
der or in any other
a party to this
7.5.5. By w tten consent signed by all the
Agreement a containing a specific referenc
limitations and restrictions contained in paragra
7.5.4 may be waived in whole or in part as to
countercl im, dispute or other matter specifically d
such C. sent. No consent to arbitration in resp
specif cally described claim, counterclaim, dispute
matte in question will constitute consent to arbitra
oth claim, counterclaim, dispute or other matter in qu
wh h is not specifically described in such consent or in
t e sum or value in controversy exceeds $200,000 (exclusive
nterest and costs) or which is with any party not specifical
described therein.
arties to this
hereto, the
s 7.5.3 and
any claim,
cribed in
ct of a
other
e any
ction
ich
of
•
16
1.56
,
a
•
•
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SECTION 8 - SPECIAL PROVISIONS, EXHIBITS and SCHEDULES
8.1. This Agreement is subject to the following special
provisions.
8.1.1.
8.2. The following Exhibits
of this Agreemeliti
attached tc and made a part
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›EkIMAIL44K4CYJAhILXEUXXXteAXKXtt:EiMAXXXtiswiX.EXXXXxxxXXXXXX
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8.2.3.
8.3. This Agreement (consisting of pages 1 to 17
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 canceled by a duly executed written
instrument.
IN WITNESS WHEREOF, the parties hereto have made and executed
this Agreement as of the day and year first above written.
OWNE:
itk'472,n9
17
NGINEER:
*Y41/497r-laava--•
EHCwItHGcgl
1-5,\C) 6
fra. 722n.
1.57
4
4
nom I cE
You are hereby
before April 17
within 365
therefor April
rritc)ic r:)
Project SEWER FLOW MONITORING RFP No. 89-1
Engineering Contract dated APRIL 11, 1989 * w/ May 1, 89 ltr
Type of Contract Standard form between Owner and Engineer
Amount of Contract $60,652
notified to commence work on the above referenced contract on or
19 89 , and shall fully complete all of the work of said contract
consecutive calendar days thereafter. Your completion date is
17 19 90 .
By
Ta1ent-016 /Wel& allt45 P/It
ACCEPTANCE OF NOTICE
Receipt of the foregoing Notice to Proceed is hereby acknowledged
BY V\ 12.6 TA e-OftMerri
this 1(4SM- M -day of
19g9.
APR 24 '90 16:16
A
EIC ENGINEERS, INC.
1510 South Broadway, Little Rock, Arkansas 72202
(501) 375-1786 Fax: (501) 375-1277
To: e.,(12 \A(140/Lo4.
FROM:
:rite\
r
Comments:
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Al# -01-. (0,19T
Number of Pages (including cover sheet)
If you did not receive all the pages, please contact us
at (501) 375-1786.
15013751277 PAGE.001