HomeMy WebLinkAbout181-03 RESOLUTION•
RESOLUTION NO. 181-03
A RESOLUTION APPROVING A CONTRACT IN THE AMOUN1
OF SIXTY-EIGHT THOUSAND .EHREE HUNDRED DOLLARS
($68,300.00) WITH GARVER ENGINEERS, LLC FOR
ENGINEERING SERVICES RELATING TO THE MOUNT
SEQUOYAH WATER AND SEWER IMPROVEMENTS PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
FAYETTEVILLE, ARKANSAS:
OF
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby approves a Contract in the amount of Sixty -Eight Thousand Three
Hundred Dollars (568,300.00) with Garver Engineers, LLC for engineering
services relating to the Mount Sequoyahnwater and sewer Improvements Project.
A copy of the Contract, marked Exhibit "A" is attached hereto and made a part
hereof.
PASSED and APPROVED this 2nd day of December, 2003.
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By: %la ���
SONDRA SMITH, City Clerk
APPROVED:
By:
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
GARVER ENGINEERS, LLC
THIS AGREEMENT is made as of bp p o mk A , 2003, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and Garver Engineers, LLC with offices located in Fayetteville (hereinafter called GARVER).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the planning, design, permitting, construction, operation, maintenance, management, and financing
of the Fayetteville Water and Wastewater System, and in particular engineering and surveying services
related to improvements to specific water and sewer lines in the Mount Sequoyah arca as described and
shown in Appendix A. Therethre. CITY OF FAYETTEVILLE. and GARVER in consideration of their
mutual covenants agree as follows:
GARVER shall serve as CITY OF FAYE11EVILLE's professional engineering consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYETTEVILLE during the performance of GARVER's services. All services shall be performed under
the direction of a professional engineer registered in the State of Arkansas and qualified in the particular
field. If Construction Phase Services are to be provided by GARVER 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 §22-9-101.
SECTION 1 - AUTHORIZATION OF SERVICES
Services on any assignment shall be undertaken only upon written Authorization of CITY OF
FAYETTEVILLE and agreement of GARVER. Assignments may include services described
hereafter as I3asic Services or as Additional Services of GARVER.
1.2 Changes, modifications or amendments in scope, price or fees to this contract
shall not be allowed without a formal contract amendment approved by the
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
I of 23 Mt. Sequoyah Water and Sewer Improvements
• •
Mayor and the City Council in advance of the change in scope, costs, fees, or
delivery schedule.
SECTION 2 - BASIC SERVICES OF GARVER
2.1 General
2.1.1 Perform professional design services in connection with the Project as hereinafter stated,
which shall include normal civil, structural, mechanical, and electrical engineering services
and surveying services incidental thereto.
2.1.1.1 The Scope of Services to be furnished by GARVER during the Study Phase is included in
Section 2.2 hereafter and in Appendix A attached hereto and made part of this
Agreement.
2.1.1.2 The Scope of Services to be furnished by GARVER during the Design Phase is partly
included in Section 2.3 hereafter and will be negotiated in full and added by an
amendment to this agreement after completion of the Study Phase. Additional scope of
services will be described in Appendix B.
2.1.1.3 The Scope of Services to be furnished by GARVER during the Bidding Phase is partly
included in Section 2.4 hereafter and will be negotiated in full and added by an
amendment to this agreement after completion of the Study Phase. Additional scope of
services will be described in Appendix B.
2.1.1.4 The Scope of Services to be furnished by GARVER during the Construction Phase is
partly included in Section 2.5 hereafter and will be negotiated in full and added by an
amendment to this agreement after completion of the Study Phase. Additional scope of
services will be described in Appendix B.
2.1.1.5 Execution of this agreement will authorize the Engineer to proceed only with the
Study Phase. The scope of services and fees for the Design Phase, Bidding Phase,
and Construction Phase will be added to this agreement by a future amendment
approved by the City Council.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEV ILLE
2 of 23 Mt. Sequoyah Water and Sewer Improvements
2.2 Study Phase
2.2.1 GARVER will provide field investigations, consider improvement alternatives, prepare
conceptual drawings, prepare a report with prioritized recommendations and opinion of
probable construction cost and coordinate with the CITY OF FAYETTEVILLE as
appropriate.
2.2.2 See Appendix A for additional services or clarification of services to he provided by
GARVER.
2.3 Design Phase
2.3.1 GARVER will prepare for incorporation in the Contract Documents detailed drawings to
show the character and scope of the Work to be performed by contractors on the Project
(hereinafter called the "Contract Drawings"), and invitation to Bid, Instructions to Bidders,
Bid Form, Agreement and Bond forms, General Conditions, and Specifications (all of which,
together with the Contract Drawings, are hereinafter called the "Bid Documents") for review
and approval by CITY OF FAYETTEVILLE, its legal counsel, and other advisors as
appropriate, and assist CITY OF FAYETTEVILLE in the preparation of other related
documents.
2.3.1.1 Bid documents shall he based on Construction Specifications Institute (CSI) Master
Format and Section Format, unless otherwise approved, and shall incorporate CITY OF
FAYETTEVILLE's standard general conditions and forms. Bid documents shall include
required forms for State Revolving Loan Fund funding. Text documents shall be
provided to CITY OF FAYETTEVILLE in Microsoft' Word version 2000 or later
software. Contract drawings shall be prepared using standard borders, sheet sizes, title
blocks and CARD standards provided by CITY OF FAYETTEVILLE. GARVER may
use their normal software for the preparation of drawings but the final product shall be
provided to CITY OF FAYETTEVILLE in Autodesks' AutoCAD version 2000 or later.
2.3.1.2 Develop and include in Appendix A of this Agreement for approval by CITY OF
FAYETTEVILLE, a project design schedule in which GARVER shall include, in an
acceptable level of detail, the steps and milestone dates to he undertaken by GARVER in
the completion of this final design. This Schedule shall include reasonable allowances
for review and approval times required by CITY OF FAYETTEVILLE, performance of
Contract Prime Agreement
GARVER — CITY OF FAYETTEVILLE
3 of 23 Mt. Sequoyah Water and Sewer Improvements
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services by CITY OF FAYF rrEV ILLE's consultants, and review and approval times
required by public authorities having jurisdiction over the Project. 'Fills schedule shall he
equitably adjusted as the Project progresses, allowing for changes in scope, character or
size of the Project requested by CITY OF FAYETTEVILLE, or for delays or other
causes beyond GARVER's reasonable control.
2.3.1.2.1 The progress design schedule shall consist ofa bar chart schedule depicting the
duration of each phase of services.
2.3.1.3 When requested by the CITY OF FAYE FTEV ILLE's City Engineer, prepare for and
attend up to two City Council meetings to provide periodic updates on the progress of the
design.
2.3.1.4 If the plans and specifications for the project require bids on alternates in addition to a
base bid, there shall be no more than three (3) alternates, and the alternates shall be
developed and described in accordance with Title 22, Article 9-203 of the Arkansas
Code.
2.3.2 Prepare technical criteria, written descriptions, design data, and applications necessary for
filing applications for permits from or approvals of the following applicable governmental
authorities having jurisdiction to review or approve the final design of the Project and assist
in securing approvals. Actual Filing and Permit Fees will be paid by the CITY OF
FAYETTEVILLE. Assist CITY OF FAYETTEVILLE in consultations with appropriate
authorities.
2.3.2.1 Arkansas Department of Health (AHD)
2.3.2.2 U.S. Army Corps of Engineers (COE)
2.3.2.3 ADEQ
2.3.3 Advise CITY OF FAYETTEVILLE of adjustments in excess of five percent of the cost
opinion for the Project caused by changes in scope, design requirements, or construction costs
and furnish a revised cost opinion for the Project based on the final Bid Documents.
Contract- Prime Agreement
GARVER — CITY OF FAYETTEVILLE
4 of 23 Mt. Sequoyah \Vater and Sewer Improvements
• •
2.3.4 Advise CITY OF FAYETTEVILLE of final Opinion of Probable Project Costs, including,
but -not limited to, construction. inspection, testing, startup, O&M Manuals, and one-year
performance evaluation.
2.3.5 Furnish CITY OF FAYETTEVILLE with 10 copies of the final Bid Documents.
2.3.6 Determine land and ease nent requirements and provide consultation and assistance on
property procurement as related to professional engineering services being performed.
2.3.7 Provide appropriate professional interpretations of data, geotechnical investigations, core
boxings, prohings and subsurface explorations, hydrographic surveys, laboratory tests, and
inspections of samples, materials and equipment obtained through subcontract services for
authorized Project services including property, boundary, casement, right-of-way,
topographic, and utility surveys; noting zoning and deed restrictions.
2.3.7.1 Fully disclose all subcontract agreements including the name and address of the
subconsultant, the scope of services to he provided, and the value of the subcontract
agreement.
2.3.7.2 Incorporate into all subcontract agreements for planning and design engineering services
the applicable milestone dates from the performance schedule contained in Appendix B,
which will he added with a future amendment to this agreement.
2.3.8 Design shall be reviewed by CITY OF FAYETTEVILLE, or such parties as CITY OF
FAYETTEVILLE shall designate, at the applicable completion levels outlined in Appendix
13, which will be added with a future amendment to this agreement.
2.3.9 See Appendix B, which will he added with a future amendment to this agreement, for
additional services or clarification of services to be provided by GARVER.
2.4 Bidding Phase
2.4.1 Arrange for bidding notices to be sent to contractors publishing services and direct mailing to
contractors of record. Notices shall comply with requirements of CITY OF
FAYETTEVILLE. The legal notice to be placed in legal notices section ofa local
newspaper(s) of countywide and statewide circulation and shall be coordinated with CITY
OF FAYETTEVILLE purchasing agent and an affidavit of publication secured.
Contract - Prime Agreement
GARVER — CITY OF FAYETTEVILLE
5 of 23 Mt. Sequoyah Water and Sewer Improvements
• •
2.4.2 Prepare addenda for drawings and Bid Documents as required and submit to CITY OF
FAYETTEVILLE in timely manner such that addenda can be issued by GARVER in
accordance with Construction Contract General Conditions.
2.4.3 Secure updated state and federal wage rate decisions and incorporate into the Bid Documents.
Update wage rate decision by addendum if necessary.
2.4.4 Assist CITY OF FAYETTEVILLE by issuing and tracking Bid Documents, addenda and
communications during bidding and maintain list of plan holders. Print and distribute copies
of plans and specifications for all prospective bidders and plan rooms. Collect from
prospective kidders an appropriate non-refundable fee to offset cost of reproducing and
distributing Bidding Documents.
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2.4.4.1 GARVER shall attend a Pre -Bid Conference organized, convened, and conducted by the
Program Manager to explain the project requirements and receive questions from
prospective bidders. GARVER shall consider the questions received and issue necessary
clarifications and changes to the Bid Documents through the use of addenda.
2.4.5 Assist CITY OF FAYETTEVILLE in obtaining and evaluating bids and preparing
construction contracts.
2.4.6 Consult with and advise CITY OF FAYETTEVILLE as to the acceptability of subcontractors
and other persons and organizations proposed by the prime construction contractor(s),
hereinafter called "Contractor(s)," for those portions of the work as to which such
acceptability is required by the Bid Documents.
2.4.7 Make recommendations regarding award of construction contracts.
2.4.8 Attend Water and Sewer Committee meeting and the ensuing City Council meeting to
recommend action by the respective bodies. Prepare and present a recommendation complete
with such supporting information as necessary for the bodies to make an informed decision
on the action recommended.
2.4.9 Sec Appendix B, which will be added with a future amendment to this agreement, for
additional services or clarification of services to be provided by GARVER.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
6 of 23 Mt. Sequoyah Water and Sewer Improvements
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2.5 Construction Phase
2.5.1 The scope of Construction Phase Services will be described in detail in Appendix 13, which
will be added with a future amendment to this agreement.
SECTION 3 - AI)DITIONAI. SERVICES OF GARVER
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by GARVER, GARVER shall furnish or obtain from others Additional Services of the following
types that are not considered normal or customary Basic Services. 'the scope of Additional Services 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 Administrative Assistance
Provide Contract and Project administration to the degree authorized by CITY OF FAYETTEVILLE.
3.1.4 Furnishing renderings or models of the Project for CITY OF FAYETlEV ILLE's use.
3.1.5 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 FAYFTTEVILLE.
3.1.6 Preparing to serve or serving as a witness for CITY OF FAYEITIiVILLIi in any litigation or
other proceeding involving the Project.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVII.LE
7 of 23 Mt. Sequoyah Water and Sewer Improvements
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3.1.7 Extra Services
3.1.7.1 Services not specifically defined heretofore that may be authorized by CITY OF
FAYETTEVILLE.
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 GARVER's control, GARVER shall notify CITY OF
FAYF. rTFVILLE and request a formal contract amendment approved by the Mayor and the
City Council prior to commencing such services. If CITY OF FAYETTEVILLE EVILLE deems that
such services described in 3.2 are not required, CITY OF FAYETTEVILLE shall give
prompt written notice to GARVER. If CITY OF FAYETTEVILLE indicates in writing that
all or parts of such Contingent Additional Services are not required, GARVER shall have no
obligation to provide those services.
3.2.2 Making revisions in Drawings, Specifications, or other documents when such revisions are:
3.2.2.1 Required because of inconsistent approvals or instructions previously given by CITY OF
FAYETTEVILLE, including revisions made necessary by adjustments in CITY OF
FAYETTEVILLE's program or Project Budget.
3.2.2.2 Required by the enactment or revision of codes, laws, or regulations subsequent to the
preparation of such documents.
SECTION 4 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
CITY OF FAYE FIEVILLL shall, within a reasonable time. so as not to delay the services of GARVER:
4.1 Provide full information as to CITY OF FAYFTTFVILLE's requirements for the Project.
4.2 Assist CARVER by placing at (iARVER's disposal all available information pertinent to the
assignment including previous reports and any other data relative thereto.
4.3 Guarantee access to and make all provisions for GARVER to enter upon public and private
property as required for GARVER to perform his services under this Agreement.
Contract - Prime Agreement
GARVER — CITY OF FAYETTEVILLE
8 of 23 Mt. Sequoyah Water and Sewer Improvements
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4.4 Examine all studies, reports, sketches, cost opinions, Bid Documents, Drawings proposals,
and other documents presented by GARVER 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 Project.
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 Project, and other matters pertinent to the services covered by
this Agreement.
4.7 Give prompt written notice to GARVER whenever CITY OF FAYETTEVILLE observes or
otherwise becomes aware of any defect in the Project.
4.8 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. Pay directly to the governmental authorities the actual filing and permit fees.
4.9 Pay for placement of legal notices and advertisements in newspapers or other publications.
4.10 Furnish, or direct GARVER to provide, necessary Additional Services as stipulated in
Section 3 of this Agreement or other services as required.
4.11 If CITY OF FAYETTEVILLE's standard bidding requirements, Agreement forms and
General Conditions are to be used, CITY OF FAYETTEVILLF. shall provide copies of such
documents tbr GARVER's use in coordinating the Contract Drawings and Specifications.
4.12 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
written comments to GARVER in a timely manner.
SEC I ION 5 - PERIOD OF SERVICE
5.1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
9 of 23 Mt. Sequoyah Water and Sewer Improvements
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5.2 The provisions of this Agreement have been agreed to in anticipation of the orderly progress
of the Project through completion of the services stated in the Agreement. GARVER will
proceed with providing the authorized services immediately upon receipt of written
authorization from CITY OF FAYETTEVILLE. Said authorization shall include the scope of
the services authorized and the time in which the services are to be completed.
SECTION 6 - PAYMENTS TO GARVER
6.1 Compensation
6.1.1 Study Phase Services
For the Scope of Services during the Study Phase described herein, CITY OF FAYE l l EVILLE shall pay
GARVER the lump sum amount of SIXTY EIGHT THOUSAND THREE HUNDRED United States
Dollars (US S68,300).
6.1.2 Design Phase Services
For the Scope of Services during the Design Phase described herein, CITY OF FAYETTEVILLE shall
pay GARVER an amount to be negotiated after completion of the Study Phase.
6.1.3 Bidding Phase Services
For the Scope of Services during the Bidding Phase described herein, CITY OF PAYE ITEVILLE shall
pay GARVER an amount to be negotiated after completion of the Study Phase.
6.1.4 Construction Phase Services
For the Scope of Services during the Construction Phase descrihed herein, CITY OF FAYETTEVILLE
shall pay GARVER an amount to be negotiated after completion of the Study Phase.
6.1.5 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services", compensation to
GARVER shall he negotiated at the time Additional services are authorized.
Contract Prinic Agreement
GARVER - CITY OF FAYETTEVILLE
10 of 23 ML Seyuoyah Water and Sewer Improvements
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6.2 Statements
Monthly statements for each calendar month shall be submitted to CITY OF FAYETTEVILLE or such
parties as CITY OF FAYETTEVILLE may designate for Design services consistent with GARVER's
normal billing schedule. Once established, the billing schedule shall be maintained throughout the
duration of the Project. Applications for payment shall be made in accordance with a fitrmat to be
developed by GARVER and approved by CITY OF FAYETTEVILLE.. Statements will be based on
GARVER's estimated percent of services completed at the end of the preceding month.
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of GARVER'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 GARVER 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 work performed under this Agreement, as a condition before final
payment under this Agreement, or as a termination settlement under this Agreement, GARVER 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 GARVER to be set forth therein. Unless otherwise 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 GARVER or his sureties under this Agreement or applicable
performance and payment bonds, if any. Final payment for each phase of services shall be made upon
CITY OF FAYETTEV ILLE's approval and acceptance with the satisfactory completion of each phase for
the Project.
6.5 Fee Changes
Subject to the City Council approval, adjustment of the lump sum amount may be made should GARVER
establish and CITY OF FAYETTEVILLE agree that there has been or is to be a significant change in
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
I I of 23 Mt. Sequoyah Water and Sewer Improvements
scope, complexity or character of the services to he performed, or if CITY OF FAYETTEVILLE decides
to shorten the duration of work from the time period specified in the Agreement for completion of work
and such modification warrants such adjustment. Changes, modifications or amendments in scope, price
or fees to this Contract shall not be allowed without formal contract amendment approved by the Mayor
and the City Council in advance of the change in scope, cost, fees, or delivery schedule.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, GARVER will maintain (in United States
Dollars) the following minimum insurance coverages.
Type of Coverage Limits of Liability
Workers' Compensation Statutory
Employers' Liability S500,000 Each Accident
Commercial General Liability
I3odily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
S1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
Professional Liability insurance $1,000,000 Each Claim
GARVER 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 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 GARVER as additional insureds, or, to endorse CITY OF
FAYETTEVILLE and GARVER ENGINEERS as additional insureds on construction
Contractor's liability insurance policies covering claims for personal injuries and property
damage. Construction Contractors shall he required to provide certificates evidencing such
insurance to CITY OF FAYETTEVILLE and GARVER. All contract insurance carriers shall
be required to list GARVER and CITY OF FAYETTEVILLE as certificate holders,
furnishing copies of the contractor's insurance certificate to each party.
Contract - Prime Agreement
CARVER — CITY OF FAYETTEVILLE
12 of 23 Mt. Sequoyah Water and Sewer Improvements
7.1.3 CITY OF FAYETTEVILLE and GARVER 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 GARVER's services. A provision similar to this shall be
incorporated into all Construction Contracts entered into by CITY OF FAYETTEVILLE, and
all construction Contractors shall be required to provide waivers of subrogation in favor of
CITY OF FAYETTEVILLE and GARVER for damage or liability covered by any
construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 GARVER will exercise reasonable skill, care, and diligence in the performance of
GARVER's services and will carry out its responsibilities in accordance with customarily
accepted professional engineering practices. CITY OF FAYETTEVILLE will promptly
repon to GARVER any defects or suspected defects in GARVER's services of which CITY
OF FAYETTEVILLE becomes aware, so that GARVER can take measures to minimize the
consequences of such a defect. CITY OF FAYF"ITEVILLE and GARVER further agree to
impose a similar notification requirement on all construction contractors in the Bid
Documents and shall require all subcontracts at any level to contain a like requirement.
CITY OF FAYETTEVILLE retains all remedies to recover for its damages caused by any
negligence of GARVER.
7.2.2 In addition GARVER will he responsible to CITY OF FAYETTEVILLE for damages caused
by its negligent conduct during its activities at the Project Site to the extent covered by
GARVER's Commercial General Liability and Automobile Liability Insurance policies as
specified in Paragraph 7.1.1.
7.3 Cost Opinions and Projections
Cost opinions and projections prepared by GARVER relating to construction costs and schedules
operation and maintenance costs, equipment characteristics and performance, and operating results are
based on GARVER's experience, qualifications. and judgment as a design professional. Since GARVER
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, GARVER does not guarantee that actual rates, costs,
Contract - Prime Agreement
GARVER — CITY OF FAYETTEVILLE
13 of 23 Mt. Sequoyah Water and Sewer Improvements
performance, schedules, and related items will not vary from cost opinions and projections prepared by
GARVER.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of GARVER'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
GARVER.
7.5 Termination
7.5.1 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:
7.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
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 GARVER is given:
7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
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 or other work,
7.5.3.2 Any payment due to GARVER at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of GARVER's default.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
14 of 23 Mt. Sequoyah Water and Sewer Improvements
7.5.4 If termination for default is effected by GARVER, or if termination for convenience is
effected by CFFY OF FAYI ITEV ILLS, the equitable adjustment shall include a reasonable
profit for services or other work performed. The equitable adjustment for any termination
shall provide for payment to GARVER for services rendered and expenses incurred prior to
the termination, in addition to termination settlement costs reasonably incurred by GARVER
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, GARVER shall:
7.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
7.5.5.2 Deliver or otherwise make available to CITY OF FAYETTEVILLE all data, drawings,
specifications, reports, estimates, summaries and such other information and materials as
may have been accumulated by GARVER 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 work and may award another party an agreement to complete the work under
this Agreement.
7.5.7 If, after termination for failure of GARVER to fulfill contractual obligations, it is determined
that GARVER had not failed to fulfill contractual obligations. the termination shall be
deemed to have been for the convenience of CITY OF FAYEITEVILLE. 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 GARVER are suspended or delayed by CITY OF FAYI':ITEVILLE or by
other events beyond GARVER's reasonable control. GARVER shall be entitled to additional
compensation and time for reasonable costs incurred by GARVER in temporarily closing down or
delaying the Project.
7.7 Rights and Benefits
GARVER's services will be performed solely for the benefit of CITY OF FAYETTEVILLE and not for
the benefit of any other persons or entities.
Contract - 1'rime Agreement
GARVER — CITY OF FAYETTEVILLE
15 of 23 Mt. Sequoyah Water and Sewer Improvements
• •
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 GARVER 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
GARVER in the performance of this Agreement, and disputes concerning payment.
7.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 7.8.3. hut an action is initiated prior to exhaustion
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
FAYETrEVILLIt shall give GARVER written Notice at the address listed in
Paragraph 714 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 GARVER 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 CARVER 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 GARVER for services rendered by CARVER.
Contract — Prime Agreement
GARVER - CITY OF FAYETTEVILLE
16 of 23 Mt. Sequoyah Water and Sewer Improvements
7.10 Publications
Recognizing the importance of professional development on the part of GARVER's employees and the
importance of GARVER's public relations, GARVER may prepare publications, such as technical papers,
articles for periodicals, and press releases, pertaining to GARVER's services for the Project. Such
publications will be provided to CITY OF FAYETTEVILLE in draft form for CITY OF
FAYETTEVILLE's advance review. CITY OF FAYETTEVILLE shall review such drafts promptly and
provide CTFY OF FAYETTEVILLE's comments to GARVER. 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 GARVER's activities pertaining
to any such publication shall he for GARVER's account.
7.11 Indemnification
7.1 1.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE and GARVER 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 Contractors. or
their employees, agents, Subcontractors, and Suppliers.
7.12 Computer Models
GARVER may use or modify GARVER's proprietary computer models in service of CITY OF
FAYETTEVILLE under this Agreement, or GARVER may develop computer models during GARVER's
service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or development by
GARVER does not constitute a license to CITY OF FAYETTEVILLE to use or modify GARVER's
computer models. Said proprietary computer models shall remain the sole property of the GARVER.
CITY OF FAYETTEVILLE and GARVER will enter into a separate license agreement if CITY OF
FAYETTEVILLE wishes to use CARVER'S computer models.
7.13 Ownership of Documents
All documents provided by CITY OF FAYETTEVILLE including original drawings, disks of CARD
drawings and cross sections, estimates, specification field notes, and data are and remain the property of
CITY OF FAYETTEVILLE. GARVER may retain reproduced copies of drawings and copies of other
documents.
Contract - Prime Agreement
GARVER — CITY OF FAYETTEVILLE
17 of 23 Mt. Scquoyah Water and Sewer Improvements
• •
Engineering documents, drawings, and specifications prepared by GARVER as part of the Services shall
become the property of CFFY OF FAYETTEVILLE when GARVER has been compensated for all
Services rendered, provided, however, that GARVER shall have the unrestricted right to their use.
GARVER 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 GARVER.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. GARVER makes no warranty as to the compatibility of these files
with any other 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 copies and the electronic files, the
sealed drawings/hard copies will govern.
7.I4 Notices
Any Notice required under this Agreement will be in writing, addressed to the appropriate party at the
following addresses:
CITY OF FAYETTEVILLE's address:
City of Fayetteville; Attn: Gary Coover
113 West Mountain
Fayetteville, AR 72701
GAR V ER's address:
Garver Engineers; Attn: Brock Hoskins
3/410 Front Street, Suite 10
Fayetteville, AR 72703
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and GARVER 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 GARVER shall assign, sublet, or transfer his interest in
the Agreement without the written consent of the other.
Contract — Prime Agreement
GARVER — CITY OF FAYEITEVILLE
18 of 23 Mt. Scquoyah Water and Sewer Improvements
• •
7.16 Controlling Law
This Agreement shall he 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 GARVER and CITY OF FAYETTEVILLE
relative to the Scope of Services herein. Since terms contained in purchase orders do not generally apply
to professional services, in the event CITY OF FAYETTEVILLE issues to GARVER a purchase order,
no preprinted terms thereon shall become a part of this Agreement. Said purchase order document,
whether or not signed by GARVER, shall be considered as a document for CITY OF FAYETTEVILLE's
internal management of its operations.
SEC'T'ION 8 - SPECIAI. CONDITIONS
8.1 Additional Responsibilities of GARVER:
8.1.1 CITY OF FAYETTEVILLE's review, approval, or acceptance of design drawings,
specifications, reports and other services furnished hereunder shall not in any way relieve
GARVER of responsibility for the technical adequacy of the work. Neither CITY OF
FAYETTEVILLE's review, approval or acceptance of, nor payment for any of the services
shall he 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 GARVER shall be and shall remain liable, in accordance with applicable law, for all damages
to CITY OF FAYETTEVILLE caused by GARVER's negligent performance of any of the
services furnished under this Agreement except for errors, omissions or other deficiencies to
the extent attributable to CITY OF FAYETTEVILLE or CITY OF FAYETTEVILLE-
furnished data.
8.1.3 GARVER's obligations under this clause arc in addition to GARVER'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 GARVER for faulty materials,
equipment, or work.
Contract — Prime Agreement
GARVER - CITY OF FAYETTEVILLE
19 of 23 Mt. Sequoyah Water and Sewer Improvements