HomeMy WebLinkAbout109-03 RESOLUTION• •
RESOLUTION NO. 109-03
A RESOLUTION TO APPROVE AN HOURLY RATE ENGINEERING
CONTRACT WITH BURNS AND MCDONNELL ENGINEERING
COMPANY, INC. IN THE NOT TO EXCEED AMOUNT OF
S2,685,366.00 FOR ENGINEERING SERVICES RELATED TO DESIGN
AND BIDDING PHASE PROGRAM MANAGEMENT SERVICES
INCLUDING VALUE ENGINEERING FOR THE WASTEWATER
SYSTEM IMPROVEMENT PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section I. That the City Council of the City of Fayetteville, Arkansas hereby
approves an hourly rate contract in the not to exceed amount of Two Million Six Hundred
Eighty-five Thousand Three Hundred Sixty -Six Dollars (52,685,366.00) attached as
Exhibit A. This hourly rate contract engages Burns and McDonnell Engineering
Company, Inc. to provide engineering services to include: recommendations for
construction packaging and sequence of bidding and construction for this project, period
review of designs for the project, bidding documents for the four other engineering firms,
conducting six value engineering workshops, monitoring compliance of other engineering
firms with contract terms, establishing minimum design standards, preparing standard
contracts and specifications for other engineering firms, liaison with Arkansas Soil and
Water Conservation Commission and assisting engineer firms with design phase and
bidding, and design and maintenance of web page for this project.
Section 2. That the City Council of the City of Fayetteville, Arkansas hereby
authorizes Mayor Dan Coody to execute this contract (Exhibit A) to hire Burns and
McDonnell Engineering Company, Inc. for this project.
PASSED and APPROVED this the 151h day of July, 2003.
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ATTEST:
By:
Sondra Smith, City Clerk
APPROVED:
By:
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AGREEMENT
For
PROFESSIONAL PROGRAM MANAGEMENT SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
BURNS & MCDONNELL ENGINEERING CO., INC.
KANSAS CITY, MISSOURI
THIS AGREEMENT is made as of 2(0 by and between City. of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and Burns &
McDonnell Engineering Company, Inc., a Missouri corporation providing professional program
management scrviccs with offices located in Kansas City, Missouri, (hereinafter called BURNS &
MCDONNELL ENGINEERING).
CITY OF FAYETTEVILLE from time to time requires program management services in connection with
the planning, design, permitting, construction, operation, maintenance, management, and financing of the
Fayetteville Wastewater System Improvement Project (The "Program') Therefore. CITY OF
FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING in consideration of their mutual
covenants agree as follows:
BURNS & MCDONNELL ENGINEERING shall serve as CITY OF FAYE1TEVILLE's Program
Manager in those assignments to which this Agrccmcnt applies, and shall give consultation and advice to
CITY OF FAYETTEVILLE during the performance of BURNS & MCDONNELL ENGINEERING's
scrviccs. If Construction Phase Services are to be provided by BURNS & MCDONNELL
ENGINEERING under this Agreement, the construction shall be executed under the observation of a
professional engineer registered in the State of Arkansas in accordance with Arkansas Code Amended
§22-9-I0I
SECTION I - AUTHORIZATION OF SERVICES
1.1 Services on an) assignment shall be undertaken only upon written Authorization of CITY OF
FAYETTEVILLE and agreement of BURNS & MCDONNELL ENGINEERING.
1.2 Assignments may include scrviccs described hereafter as Basic Services or as Additional
Services of BURNS & MCDONNELL ENGINEERING.
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1.3 Changes, modifications or amendments in scope, price or fees to this
agreement shall not be allowed without a formal agreement amendment
approved by the Mayor and the City Council in advance of the change in
scope, costs, fees, or delivery schedule.
SECTION 2 - BASIC SERVICES OF BURNS & MCDONNELL ENGINEERING
2.1 General
2.1.1 Perform Program Management services in connection with the Program as hereinafter stated.
2.1.1.1 The Scope of Services to be furnished by BURNS & MCDONNELL ENGINEERING
during the Final Design Phase is included in Appendix A attached hereto and made part
of this Agreement.
2.1.1.2 The Scope of Services to he famished by BURNS & MCDONNELL ENGINEERING
during the Bidding Phase is included in Appendix B attached hereto and made part of this
Agreement.
2.1.1.3 The Special Terms and Conditions regarding the provision of a program web site to be
furnished by BURNS & MCDONNELL ENGINEERING is included in Appendix C
attached hereto and made part of this Agreement.
2.1.1.4 The Scope of Services to be furnished by BURNS & MCDONNELL ENGINEERING
during the Construction Phase, if any, will be finalized and contained in an amendment to
this Agreement after Final Design is completed.
2.1.1.5 Thc Scope of Services to be famished by BURNS & MCDONNELL ENGINEERING
during the Post -Construction Phase, if any, will be finalized and contained in an
amendment to this Agreement after Final Design is completed.
2.1.1.6 The preliminary Scope of Services to be fumishcd by BURNS & MCDONNELL
ENGINEERING for Resident Services During Construction, if any, will be finalized and
contained in an amcndment to this Agreement after Final Design is completed.
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SECTION 3 - ADDITIONAL SERVICES OF BURNS & MCDONNELL ENGINEERING
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by BURNS & MCDONNELL ENGINEERING, BURNS & MCDONNELL ENGINEERING
shall furnish or obtain from others Additional Services of the following types which are not considered
normal or customary Basic Services. The scope of Additional Scrviccs may include:
3.1.1 Grant and Loan Assistance
Prepare applications and supporting documents for governmental grants. loans, or advances.
3.1.2 Financial Consultation
Consult with CITY OF FAYETTEVILLE's fiscal agents and bond attorneys and provide such
engineering data as required for any bond prospectus or other financing requirements.
3.1.3 Fumishing renderings or models of the Projects for CITY OF FAYE11EVILLE's use.
3.1.4 Miscellaneous Studies
Investigations involving detailed consideration of operations, maintenance, and overhead expenses, and
the preparation of rate schedules, earnings, and expense statements; feasibility studies; appraisals and
valuations; detailed quantity surveys of material, equipment, and labor; and audits or inventories required
in connection with construction performed by CITY OF FAYETTEVILLE.
3.1.5 Separately Negotiated Services
Any of the following services may be provided by BURNS & MCDONNELL under a separately
negotiated agreement.
3.1.5.1 Consultations involving analyses and recommendations with regard to studies previously
performed or undertaken by others for CITY OF FAYETTEVILLE which may have an
overall effect on the operation, collection, treatment, and disposal methods for liquid and
solid wastes, but which arc not specifically included in the Scope of Work for Basic
Services of this Agreement, including, but not limited to:
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3.1.5.1.1 Comments, consultation, review, analysis, or completion of work contracted by
others to perform water quality modeling of receiving streams or determination of
effluent discharge requirements.
3.1.5.1.2 Negotiations among the CITY OF FAYETTEVILLE, the State of Arkansas and the
State of Oklahoma to determine and codify agreements on the acceptable loading or
concentration of nutrients in the wastewater effluent discharged into the Illinois River
drainage basin.
3.1.5.1.3 Negotiations between CITY OF FAYETTEVILLE and other Northwest Arkansas
cities, regional authorities, or utility districts involving acceptable loading or
concentration of nutrients in the wastewater effluent discharged into the White River
drainage basin.
3.1.5.1.4 Comments, consultation, review, analysis, or development of a bio -solids disposal
strategy for participation in either a commercial solution or in a regional disposal
option.
3.2 Contingent Additional Services
3.2.1 If services described under Contingent Additional Services in Paragraph 3.2 are required due
to circumstances beyond BURNS & MCDONNELL ENGINEERING's control, BURNS &
MCDONNELL ENGINEERING shall notify CI TY OF FAYETTEVILLE and request a
formal agreement amendment approved by the Mayor and the City Council prior to
commencing such services. If CITY OF FAYETTEVILLE deems that such services
described in 3.2 are not required, CITY OF FAYETTEVILLE shall give prompt written
notice to BURNS & MCDONNELL ENGINEERING. If CITY OF FAYETTEVILLE
indicates in writing that all or part of such Contingent Additional Services are not required,
BURNS & MCDONNELL ENGINEERING shall have no obligation to provide those
services.
3.2.2 Providing services made necessary by the default of the CITY OF FAYETTEVILLE's
contractors or consultants for the Program, by major defects or deficiencies in the Work of
the contractors or consultants, or by failure of performance of the CITY OF
FAYETTEVILLE or contractors or consultants under agreement for design or construction
services.
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SECTION 4 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of BURNS &
MCDONNELL ENGINEERING:
4.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Program.
4.2 Assist BURNS & MCDONNELL ENGINEERING by placing at BURNS & MCDONNELL
ENGINEERING's disposal all available information pertinent to the assignment including
previous reports and any other data relative thereto. BURNS & MCDONNELL
ENGINEERING may reasonably rely on the accuracy and completeness of such information
without independent verification or validation.
4.3 Guarantee access to and make all provisions for BURNS & MCDONNELL ENGINEERING
to enter upon public and private property as required for BURNS & MCDONNELL
ENGINEERING to perform his services under this Agreement.
4.4 Examine all studies, reports, sketches, cost opinions, Bid Documents, Drawings, proposals,
and other documents presented by BURNS & MCDONNELL ENGINEERING and render in
writing decisions pertaining thereto.
4.5 Provide such professional legal, accounting, financial, and insurance counseling services as
may be required for the Program.
4.6 Designate in writing a person to act as CITY OF FAYETTEVILLE's representative with
respect to the services to be performed under this Agreement. Such person shall have
complete authority to transmit instructions, receive information, interpret and define CITY
OF FAYETTEVILLE's policies and decisions with respect to materials, equipment, elements
and systems to be used in the Program, and other matters pertinent to the services covered by
this Agreement.
4.7 Give prompt written notice to BURNS & MCDONNELL ENGINEERING whenever CITY
OF FAYETTEVILLE observes or otherwise becomes aware of any defect in the Program,
change in needs, assumptions, constraints, plans, or otherwise affecting the efficient
execution of the Program, or possibly requiring change to Program plans, scope, budget, or
schedule.
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4.8 Furnish approvals and permits from all governmental authorities having jurisdiction over the
Program and such approvals and consents from others as may be necessary for completion of
the Program Pay directly to the governmental authorities the actual filing and permit fees
after approvals arc secured by BURNS & MCDONNELL ENGINEERING.
4.9 Fumish, or direct BURNS & MCDONNELL ENGINEERING to provide, necessary
Additional Services as stipulated in Section 3 of this Agreement or other services as required.
SECTION 5 - PERIOD OF SERVICE
5.1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
5.2 This Agreement shall be applicable to all assignments authorized by CITY OF
FAYETTEVILLE and accepted by BURNS & MCDONNELL ENGINEERING subsequent
to the date of its execution. All assignments authorized prior to the execution of this
document, even if performed in whole or in part before the execution date, shall be governed
by the terms and conditions of this Agreement.
5.3 The provisions of this Agreement have been agreed to in anticipation of the orderly progress
of the Program through completion of the services stated in the Agreement. BURNS &
MCDONNELL ENGINEERING will proceed with providing the authorized services
immediately upon receipt of written authorization from CITY OF FAYETTEVILLE. Said
authorization shall include the Scope of Services authorized and the time in which the
services are to be completed.
SECTION 6 - PAYMENTS TO BURNS & MCDONNELL ENGINEERING
6.1 Compensation
6.1.1 Final Design Phase Services
For the Scope of Services during the Final Design Phase described herein, CITY OF FAYETTEVILLE
shall pay BURNS & MCDONNELL ENGINEERING the sum of the following:
6.1.1.1 For time expended by personnel, payment at the hourly rates indicated in the attached
"Schedule of Hourly Professional Service Billing Rates" Form BMR 903. Such rates
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include overhead and profit. The schedule is effective to January 1, 2004, and will be
revised annually.
6.1.1.2 For normal computer usage, computer-aided drafting (CAD), telephone, fax, photocopy
and mail services, a technology charge in accordance with the "Schedule of Hourly
Professional Service Billing Rates" in effect at the time the service is provided. Specialty
items are not included in the technology charge. For reproduction, printing and binding
of documents, and vehicle and testing apparatus usage, amounts as determined from
BURNS & MCDONNELL ENGINEERING's schedule of rates in effect at the time, the
service is provided.
6.1.2 Bidding Phase Services
For the Scope of Services during the Bidding Phase described herein, CITY OF FAYETTEVILLE shall
pay BURNS & MCDONNELL ENGINEERING the sum of the following:
6. I.2.1 For time expended by personnel, payment at the hourly rates indicated in the attached
"Schedule of Hourly Professional Service Billing Rates" Form BMR 903. Such rates
include overhead and profit. The schedule is effective to January 1, 2004, and will be
revised annually.
6.1.2.2 For normal computer usage, computer-aided drafting (CAD), telephone, fax, photocopy
and mail services, a technology charge in accordance with the "Schedule of Hourly
Professional Service Billing Rates" in effect at the time the service is provided. Specialty
items are not included in the technology charge. For reproduction, printing and binding
of documents, and vehicle and testing apparatus usage, amounts as determined from
BURNS & MCDONNELL ENGINEERING's schedule of rates in effect at the time the
service is provided.
6.1.3 The total payment for the Basic Scope of Services described in Appendix A, Appendix
8, and Appendix C is estimated to be Two Million Six Hundred Eighty-five Thousand
Three Hundred Sixty-six Dollars ($2,685,366.00), but is not a guaranteed maximum.
The total payment is based on expending no more than 18,067 person -hours.
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6.1.4 Construction Phase Services
This section is resented for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Design Phase Services.
6. I.5 Post -Construction Phase Services
This section is reserved for future details concerning this phase, if any This Agreement shall be amended
to include payment conditions following the completion of Design Phase Services.
6.1.6 Resident Services During Construction
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Design Phase Services.
6.2 Statements
Monthly statements, in BURNS & MCDONNELL ENGINEERING's standard format; will be submitted
by BURNS & MCDONNELL ENGINEERING to CITY OF FAYETTEVILLE. Statements will be
submitted covering services and expenses incurred during the preceding month.
6.3 Payments
Statements are payable upon receipt and due within thirty (30) days. If a portion BURNS &
MCDONNELL ENGINEERING's statement is disputed by CITY OF FAYETTEVILLE, the undisputed
portion shall be paid by CITY OF FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE shall
advise BURNS & MCDONNELL ENGINEERING in writing of the basis for any disputed portion of any
statement. CITY OF FAYETTEVILLE will make reasonable effort to pay invoices within 30 days of date
the invoice is approved, however, payment within 30 days is not guaranteed.
6.4 Final Payment
Upon satisfactory completion of the services performed under this Agreement, as a condition before final
payment under this Agreement, or as a termination settlement under this Agreement, BURNS &
MCDONNELL ENGINEERING shall execute and deliver to CITY OF FAYETTEVILLE a release of all
claims against CITY OF FAYETTEVILLE arising under or by virtue of this Agreement, except claims
which are specifically exempted by BURNS & MCDONNELL ENGINEERING to be set forth therein or
not capable of being reasonably discernable and liquidated at time of final payment Unless otherwise
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provided in this Agreement or by State law or otherwise expressly agreed to by the parties to this
Agreement, final payment under this Agreement or settlement upon termination of this Agreement shall
not constitute a waiver of CITY OF FAYETTEVILLE's claims against BURNS & MCDONNELL
ENGINEERING or his sureties under this Agreement or applicable performance and payment bonds, if
any
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, BURNS & MCDONNELL
ENGINEERING will maintain (in United States Dollars) the following minimum insurance
coverages:
Type of Coverage Limits of Liability
Workers' Compensation Statutor
Employers' Liability $500,000 Each Accident
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
Professional Liability Insurance $1,000,000 Each Claim
BURNS & MCDONNELL ENGINEERING will provide to CITY OF FAYETTEVILLE certificates as
evidence of the specified insurance within ten days of the date of this Agreement and upon each renewal
of coverage.
7.1.2 Consultants and construction contractors shall be required to provide (or CITY OF
FAYETTEVILLE may provide) Owner's Protective Liability Insurance naming CITY OF
FAYETTEVILLE as a Named Insured and BURNS & McDONNELL ENGINEERING as an
additional insured, or, to endorse CITY OF FAYETTEVILLE and BURNS & McDONNELL
ENGINEERING as additional insureds on any construction contractor's or consultant's
liability insurance policies (except for Workmen's Compensation or professional liability
policies) covering claims for personal injuries and property damage. Construction
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contractors and consultants shall be required to provide certificates evidencing such insurance
to CITY OF FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING.
7.1.3 CITY OF FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING waive all
rights against each other and their officers, directors, agents, or employees for damage
covered by property insurance during and after the completion of BURNS & MCDONNELL
ENGINEERING's services. A provision similar to this shall be incorporated into all
consultant and construction contracts entered into by CITY OF FAYETTEVILLE, and all
consultants and construction contractors shall be required to provide waivers of subrogation
in favor of CITY OF FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING for
damage or liability covered by any consultant's or construction contractor's policy of
insurance.
7.2 Professional Responsibility
7.2.1 BURNS & MCDONNELL ENGINEERING will exercise reasonable skill, care, and
diligence in the performance of BURNS & MCDONNELL ENGINEERING's services and
will carry out its responsibilities in accordance with customarily accepted professional
Program Management practices. If BURNS & MCDONNELL ENGINEERING fails to meet
the foregoing standard, BURNS & MCDONNELL ENGINEERING will perform at its own
cost, and without reimbursement from CITY OF FAYETTEVILLE, the professional Program
Management services necessary to correct errors, omissions, or other deficiencies which are
caused by BURNS & MCDONNELL ENGINEERING's failure to comply with above
standard. CITY OF FAYETTEVILLE retains all other remedies to recover for its damages
caused by any negligence of' BURNS & MCDONNELL ENGINEERING. CITY OF
FAYETTEVILLE acknowledges that BURNS & MCDONNELL ENGINEERING will use
its best efforts to facilitate efficient evaluation of the Program, but cannot guarantee any or all
Program goals regarding budget, schedule, or performance will be met.
7.2.2 In addition BURNS & MCDONNELL ENGINEERING will be responsible to CITY OF
FAYETTEVILLE for damages caused by its negligent conduct during its activities at the
Project Sites to the extent covered by BURNS & MCDONNELL ENGINEERING's
Commercial General Liability and Automobile Liability Insurance policies as specified in
Paragraph 7.1.1.
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7.2.3 In no event will BURNS & MCDONNELL ENGINEERING be liable for any special,
indirect, or consequential damages including, without limitation, damages or losses in the
nature of increased Program costs, Program delays, loss of revenue or profit, lost production,
claims by customers or constituents of CITY OF FAYETTEVILLE, or for governmental
fines or penalties.
7.2.4 BURNS & MCDONNELL ENGINEERING's aggregate liability for all damages connected
with its services for the Program not excluded by the preceding subparagraph, whether
covered by insurance or not, will not exceed the compensation paid under this Agreement.
7.2.5 The obligations and remedies stated in this Paragraph 7.2, Professional Responsibility, are the
sole and exclusive obligations of BURNS & MCDONNELL ENGINEERING and are the
exclusive remedies of CITY OF FAYETTEVILLE regardless of the cause of action pled
including, without limitation, negligence of every character.
7.2.6 CITY OF FAYETTEVILLE acknowledges that BURNS & MCDONNELL ENGINEERING
will be interacting on behalf of CITY OF FAYETTEVILLE with all Program participants and
stakeholders at a high level. This broad participation exposes BURNS & MCDONNELL
ENGINEERING to many potential risks and conflicts to participants and third parties that
would otherwise remain with the CITY OF FAYETTEVILLE, if BURNS & MCDONNELL
ENGINEERING's method had not been employed. CffY OF FAYETTEVILLE also
recognizes the benefit of utilizing BURNS & MCDONNELL ENGINEERING as the
obligations and responsibilities of BURNS & MCDONNELL ENGINEERING are not within
the core competencies, or could not be provided by the current staff of, CITY OF
FAYETTEVILLE. In addition to the protections provided in this Section 7.2 to entice
BURNS & MCDONNELL ENGINEERING to offer the scope of services for the negotiated
rates herein, CITY OF FAYETTEVILLE also will provide the following indemnification:
7.2.6.I CITY OF FAYETTEVILLE will indemnify, defend, and hold harmless BURNS &
MCDONNELL ENGINEERING from and against any and all loss where Toss is caused
or incurred or alleged to be caused or incurred in whole or in part as a result of the
negligence or other actionable fault of CITY OF FAYETTEVILLE, of the Consultants,
Contractors, or their employees, agents, Subcontractors, and Suppliers.
7.2.6.2 CITY OF FAYETTEVILLE also agrees that it will require all Consultants, and
construction Contractors to indemnify, defend, and hold harmless CITY OF
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FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING from and against any
and all loss where loss is caused or incurred or alleged to be caused or incurred in whole
or in part as a result of the negligence or other actionable fault of the Consultants, the
Contractors, or their employees, agents, Subcontractors, and Suppliers.
7.2.6.3 Should these indemnification provisions of 7.2.6 above be found to be, in whole or in part
unenforceable, it shall be reformed to conform to law and to accomplish, to the greatest
extent possible, their original intent or outcome, consistent with the law.
7.3 Cost Opinions and Projections
Cost opinions and projections prepared by BURNS & MCDONNELL ENGINEERING relating to
construction costs and schedules, operation and maintenance costs, equipment characteristics and
performance, and operating results are based on BURNS & MCDONNELL ENGINEERING's
experience, qualifications, and judgment as a Program Manager. Since BURNS & MCDONNELL
ENGINEERING has no control over weather, cost and availability of labor, material and equipment,
labor productivity, construction Contractors' procedures and methods, unavoidable delays, construction
Contractors' methods of determining prices, economic conditions, competitive bidding or market
conditions, and other factors affecting such cost opinions or projections, BURNS & MCDONNELL
ENGINEERING does not guarantee that actual rates, costs, performance, schedules, and related items
will not vary from cost opinions and projections prepared by BURNS & MCDONNELL
ENGINEERING.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of BURNS &
MCDONNELL ENGINEERING'S services, with an appropriate change in compensation and schedule
only after Fayetteville City Council approval of such proposed changes and, upon execution of a mutually
acceptable amendment or change order signed by the Mayor of the CITY OF FAYETTEVILLE and the
President or any Vice President of BURNS & MCDONNELL ENGINEERING.
7.5 Termination
75. I This Agreement may be terminated in whole or in part in writing by either party in the event
of substantial failure by the other party to fulfill its obligations under this Agreement through
no fault of the terminating party, provided that no termination may be effected unless the
other party is given:
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7.5. I . I Not Tess than ten (10) calendar days written notice (delivered by certified mail, retum
receipt requested) of intent to terminate.
7.5.1.2 An opportunity for consultation with the terminating party prior to termination.
7.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that BURNS & MCDONNELL
ENGINEERING is given:
7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, retum
receipt requested) of intent to terminate,
7.5.2.2 An opportunity for consultation with the terminating party prior to termination.
7.5.3 If termination for default is effected by CITY OF FAYETTEVILLE, an equitable adjustment
in the price provided for in this Agreement shall be made, but
7.5.3.1 No amount shall be allowed for anticipated profit on unperformed services,
7.5.3.2 Any payment due to BURNS & MCDONNELL ENGINEERING at the time of
termination may be adjusted to cover any additional costs to CITY OF FAYETTEVILLE
because of BURNS & MCDONNELL ENGINEERING's default.
7.5.4 If termination for default is effected by BURNS & MCDONNELL ENGINEERING, or if
termination for convenience is effected by CITY OF FAYETTEVILLE, the equitable
adjustment for any termination shall provide for payment to BURNS & MCDONNELL
ENGINEERING for services rendered and expenses incurred prior to the termination, in
addition to termination settlement costs reasonably incurred by BURNS & MCDONNELL
ENGINEERING relating to commitments which had become firm prior to the termination.
7.5.5 Upon receipt of a termination action under Paragraphs 7.5.1 or 7.5.2 above, BURNS &
MCDONNELL ENGINEERING shall:
7.5.5.1 Promptly discontinue all affected services (unless the notice directs otherwise),
7.5.5.2 Deliver or otherwise make available to CITY OF FAYETTEVILLE all data, drawings,
specifications, reports, cost opinions, summaries and such other information and
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materials as may have been accumulated by BURNS & MCDONNELL ENGINEERING
in performing this Agreement, whether completed or in process.
7.5.6 Upon termination under Paragraphs 7.5.1 or 7.5.2 above CITY OF FAYETTEVILLE may
take over the service and may award another party an agreement to complete the services
under this Agreement.
7.5.7 If, after termination for failure of BURNS & MCDONNELL ENGINEERING to fulfill
contractual obligations, it is determined that BURNS & MCDONNELL ENGINEERING had
not failed to fulfill contractual obligations, the termination shall be deemed to have been for
the convenience of CITY OF FAYETTEVILLE. In such event, adjustments of the
Agreement price shall be made as provided in Paragraph 7.5.4 of this clause.
7.6 Delays
In the event the services of BURNS & MCDONNELL ENGINEERING arc suspended or delayed by
CITY OF FAYETTEVILLE, or by other events beyond BURNS & MCDONNELL ENGINEERING's
reasonable control, BURNS & MCDONNELL ENGINEERING shall be entitled to additional
compensation for rcasonablc costs incurred by BURNS & MCDONNELL ENGINEERING in
temporarily closing down or delaying the Program, including any extended overhead.
7.7 Rights and Benefits
BURNS & MCDONNELL ENGINEERING's services will be performed solely for the benefit of CITY
OF FAYETTEVILLE and not for the benefit of any other persons or entities.
7.8 Dispute Resolution
7.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all disputes
between CITY OF FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING which
arise from, or in any way are related to, this Agreement, including, but not limited to the
interpretation of this Agreement, the enforcement of its terms, any acts, errors, or omissions
of CITY OF FAYETTEVILLE or BURNS & MCDONNELL ENGINEERING in the
performance of this Agreement, and disputes concerning payment.
7.8.2 Exhaustion of Remedies Required No action may be tiled unless the parties first negotiate.
If timely Notice is given under Paragraph 7.8.3, but an action is initiated prior to exhaustion
BMcD Design and Bid Phase Agreement 14 052303
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of these procedures, such action shall be stayed. upon application by either party to a court of
proper Jurisdiction, until the procedures in Paragraphs 7.8.3 and 7.8.4 have been complied
with.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising prior to the making of final payment promptly after the occurrence of
any incident, action, or failure to act upon which a claim is based, the party seeking relief
shall serve the other party with a written Notice;
7.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give BURNS & MCDONNELL ENGINEERING written Notice
at the address listed in Paragraph 7.14 within thirty (30) days after occurrence of any
incident, accident, or first observance of defect or damage. In both instances, the Notice
shall specify the nature and amount of relief sought, the reason relief should be granted,
and the appropriate portions of this Agreement that authorize the relief requested.
7.8.4 Negotiation: Within seven days of receipt of the Notice, the Project Managers for CITY OF
FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING shall confer in an effort
to resolve the dispute. If the dispute cannot be resolved at that level, then, upon written
request of either side, the matter shall be referred to the President of BURNS &
MCDONNELL ENGINEERING and the Mayor of CITY OF FAYETTEVILLE or his
designee. These officers shall meet at the Project Site or such other location as is agreed
upon within 30 days of the written request to resolve the dispute.
7.9 CITY OF FAYETTEVILLE represents that it has sufficient funds or the means of obtaining
funds to remit payment to BURNS & MCDONNELL ENGINEERING for services rendered
by BURNS & MCDONNELL ENGINEERING.
7.10 Publications
Recognizing the importance of professional development on the part of BURNS & MCDONNELL
ENGINEERING's employees and the importance of BURNS & MCDONNELL ENGINEERING's
public relations, BURNS & MCDONNELL ENGINEERING niay prepare publications, such as technical
papers, articles for periodicals, and press releases, pertaining to BURNS & MCDONNELL
ENGINEERING's services for the Program. Such publications will be provided to CITY OF
FAYETTEVILLE in draft form for CITY OF FAYE11EVILLE's advance review. CITY OF
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FAYETTEVILLE shall review such drafts promptly and provide CITY OF FAYETTEVILLE's
comments to BURNS & MCDONNELL ENGINEERING. CITY OF FAYETTEVILLE may require
deletion of proprietary data or confidential information from such publications, but otherwise CITY OF
FAYETTEVILLE will not unreasonably withhold approval The cost of BURNS & MCDONNELL
ENGINEERING's activities pertaining to any such publication shall be for BURNS & MCDONNELL
ENGINEERING's account.
7.11 Indemnification
7.11.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE and BURNS &
MCDONNELL ENGINEERING from and against any and all loss where loss is caused or
incurred or alleged to be caused or incurred in whole or in part as a result of the negligence or
other actionable fault of the Consultants or Contractors, or their employees, agents,
Subcontractors, and Suppliers.
712 Computer Models
BURNS & MCDONNELL ENGINEERING may use or modify BURNS & MCDONNELL
ENGINEERING's proprietary computcr models in service of CITY OF FAYETTEVILLE under this
Agreement, or BURNS & MCDONNELL ENGINEERING may develop computer models during
BURNS & MCDONNELL ENGINEERING's service to CITY OF FAYETTEVILLE under this
Agreement. Such use, modification, or development by BURNS & MCDONNELL ENGINEERING
docs not constitute a license to CITY OF FAYETTEVILLE to use or modify BURNS & MCDONNELL
ENGINEERING's computer models. Said proprietary computer models shall remain the sole property of
BURNS & MCDONNELL ENGINEERING. CITY OF FAYETTEVILLE and BURNS &
MCDONNELL ENGINEERING will enter into a separate license agreement if CITY OF
FAYETTEVILLE wishes to use BURNS & MCDONNELL ENGINEERING's computer models.
7.13 Ownership of Documents
All documents provided by CITY OF FAYETTEVILLE including original drawings, disks of CADD
drawings and cross sections, cost opinions, specification field notes. and data are and remain the property
of CITY OF FAYETTEVILLE. BURNS & MCDONNELL ENGINEERING may retain reproduced
copies of drawings and copies of other documents.
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Engineering documents, drawings, and specifications prepared by BURNS & MCDONNELL
ENGINEERING as part of the Services shall become the property of CITY OF FAYETTEVILLE when
BURNS & MCDONNELL ENGINEERING has been compensated for all Services rendered, provided,
however, that BURNS & MCDONNELL ENGINEERING shall have the unrestricted right to their use.
BURNS & MCDONNELL ENGINEERING shall, however, retain its rights in its standard drawings
details, specifications, databases, computer software, and other proprietary property. Rights to
intellectual property developed, utilized, or modified in the performance of the Services shall remain the
property of BURNS & MCDONNELL ENGINEERING.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. BURNS & MCDONNELL ENGINEERING makes no warranty as
to the compatibility of these files with any oth r system or software. Because of the potential degradation
of electronic medium over time, in the event of a conflict between the sealed original drawings/hard
copics and the electronic files, the scaled drawings/hard copies will govern.
7.14 Notices
Any Notice required under this Agreement will be in writing, addressed to the appropriate party at the
following addresses:
CITY OF FAYE ITEVILLE's address
City of Fayetteville, Arkansas
113 West Mountain Street
Fayetteville AR 72701
BURNS & MCDONNELL ENGINEERING's address
Bums & McDonnell Engineering Co., Inc.
9400 Ward Parkwa%
Kansas City, MO 64114
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and BURNS & MCDONNELL ENGINEERING each binds himself and his
successors, executors, administrators, and assigns to the other party of this Agreement and to the
successors, executors, administrators, and assigns of such other party, in respect to all covenants of this
Agreement; except as above, neither CITY OF FAYETTEVILLE nor BURNS & MCDONNELL
ENGINEERING shall assign, sublet, or transfer his interest in the Agreement without the written consent
of the other.
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7. 16 Controlling Law
This Agreement shall be subject to, interpreted and enforced according to the laws of the State of
Arkansas without regard to any conflicts of law provisions.
7.17 Entire Agreement
This Agreement represents the entire Agreement between BURNS & MCDONNELL ENGINEERING
and CITY OF FAYETTEVILLE relative to the Scope of Services herein. All previous or
contemporaneous agreements, representations, promises, and conditions relating to BURNS &
MCDONNELL ENGINEERING's services described herein arc superseded. Since terms contained in
purchase orders do not generally apply to professional services, in the event CITY OF FAYETTEVILLE
issues to BURNS & MCDONNELL ENGINEERING a purchase order, no preprinted terms thereon shall
become a part of this Agreement. Said purchase order document, whether or not signed by BURNS &
MCDONNELL ENGINEERING, shall be considered as a document for CITY OF FAYETTEVILLE's
internal management of its operations.
SECTION 8 - SPECIAL CONDITIONS
8.1 Additional Responsibilities of BURNS & MCDONNELL ENGINEERING:
8.1 1 CITY OF FAYETTEVILLE's or Arkansas Soil and Water Conservation Commission's
(ASWCC's) review, approval, or acceptance of design drawings, specifications, reports and
other services furnished hereunder shall not in any way relieve BURNS & MCDONNELL
ENGINEERING of responsibility for performance to the required standard of care. Neither
CITY OF FAYETTEVILLE's nor ASWCC's review, approval or acceptance of, nor payment
for any of the services shall be construed as a waiver of any rights under this Agreement or of
any cause of action arising out of the performance of this Agreement.
8.1.2 BURNS & MCDONNELL ENGINEERING shall be and shall remain liable, in accordance
with applicable law, for all damages to CITY OF FAYETTEVILLE to the extent caused by
BURNS & MCDONNELL ENGINEERING's negligent performance of any of the services
furnished under this Agreement except for errors, omissions or other deficiencies to the
extent attributable to CFIY OF FAYETTEVILLE or CITY OF FAYETTEVILLE-furnished
data.
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8.I.3 BURNS & MCDONNELL ENGINEERING's obligations under this clause are in addition to
BURNS & MCDONNELI. ENGINEERING's other express or implied assurances under this
Agreement or State law and in no way diminish any other rights that CITY OF
FAYETTEVILLE may have against BURNS & MCDONNELL ENGINEERING for faulty
materials, equipment, or services.
8.2 Remedies
Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes and other
matters in question between CITY OF FAYETTEVILLE and BURNS & MCDONNELL
ENGINEERING arising out of or relating to this Agreement or the breach thereof will be decided in a
court of competent jurisdiction within Arkansas.
8.3 Audit: Access to Records
8.3.1 BURNS & MCDONNELL ENGINEERING shall maintain books, records, documents and
other evidence directly pertinent to performance of services under this Agreement in
accordance with generally accepted accounting principles and practices consistently applied
in effect on the date of execution of this Agreement. BURNS & MCDONNELL
ENGINEERING shall also maintain the financial information and data used by BURNS &
MCDONNELL ENGINEERING in the preparation of support of the cost submission
required for any negotiated agreement or change order and send to CITY OF
FAYETTEVILLE a copy of the cost summary submitted. The United States Environmental
Protection Agency, the Comptroller General of the United States, the United States
Department of Labor, CITY OF FAYETTEVILLE, the State or any of their authorized
representatives shall have access to all such books, records, documents and other evidence for
the purpose of inspection, audit and copying during normal business hours. BARNS &
MCDONNELL ENGINEERING will provide proper facilities for such access and inspection.
8.3.2 Records under Paragraph 8.3.1 above, shall be maintained and made available during
performance of services under this Agreement and until three years from the date of final
payment for the Program. In addition, those records which relate to any controversy arising
out of such performance, or to costs or items to which an audit exception has been taken,
shall be maintained and made available until three years after the date of resolution of such
appeal, litigation, claim or exception.
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