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HomeMy WebLinkAbout47-03 RESOLUTION• RESOLUTION NO. 47-03 A RESOLUTION TO APPROVE A CONTRACT WITH BLACK AND VEATCH, INC. IN THE AMOUNT OF $126,300.00 PLUS A $20,000.00 CONTINGENCY FOR ENGINEERING SERVICES RELATED TO A COMPREHENSIVE STUDY AND REHABILITATIVE RECOMMENDATIONS FOR THE EXISTING 36" WATER TRANSMISSION LINE FROM THE BEAVER WATER DISTRICT INTO THE CITY OF FAYETTEVILLE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby approves the contract attached as Exhibit "A" with Black and Veatch, Inc. in the amount of $126,300.00 plus a $20,000.00 contingency for a comprehensive engineering study and rehabilitative recommendations for the existing 36" water transmission line from Beaver Water District into the City of Fayetteville. _ PASSED and APPROVED this the 151h day of April, 2003. ettYETTE • • I \ .41 sitgAa. By: Sondra Smith, City Clerk APPROVED: By DAN COODY, May • AGREEMENT For PROFESSIONAL ENGINEERING SERVICES Between CITY OF FAYETTEVILLE, ARKANSAS And BLACK & VEATCH CORPORATION THIS AGREEMENT is made as of 49(1 ) 1 L ,2003, by and between City of Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and BLACK & VEATCH CORPORATION with offices located in Kansas City, Missouri (hereinafter called BLACK & VEATCH). 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 Existing 36 inch Water Transmission Line — Rehabilitation Study (The "Project"). Therefore, CITY OF FAYETTEVILLE and BLACK & VEATCH in consideration of their mutual covenants agree as follows: BLACK & VEATCH shall serve as CITY OF FAYETTEVILLE'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 BLACK & VEATCH'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 BLACK & VEATCH 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 §22-9-10I. SECTION 1- AUTHORIZATION OF SERVICES 1.1 Services on any assignment shall be undertaken only upon written Authorization of CITY OF FAYETTEVILLE and agreement of BLACK & VEATCH. 1.2 Assignments may include services described hereafter as Basic Services or as Additional Services of BLACK & VEATCH. 1.3 Changes, modifications or amendments in scope, price or fees to this contract shall not be allowed without a formal contract amendment approved by the Professional Services-Dtsign-Revidoc City of Fayetteville, AR 901049572 36 Inch Water Line Study March 6, 2003 A — I N00:03319 dac Mayor and the City Council in advance of the change in scope, costs, fees, or delivery schedule. SECTION 2- BASIC SERVICES OF BLACK & VEATCH 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 normal architectural design services incidental thereto. 2.1.1.1 The Scope of Services to be fumished by BLACK & VEATCH during the Project is included in Appendix A attached hereto and made part of this Agreement. SECTION 3- ADDITIONAL SERVICES OF BLACK & VEATCH 3.1 General If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in writing by BLACK & VEATCH, BLACK & VEATCH 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 FAYETTEVILLE's use. Professional Serviccs-Design-Revidoc City of Fayeueville, AR 901049572 36 Inch Water Line Study March 6, 2003 A - 2 ND:003038 occ 3.1.5 Supplemental Inspections and Testing. 1. Prepare a plan for a supplemental inspection and testing program for CITY OF FAYETTEVILLE's approval. Possibilities include: Field site survey Surge Analysis Field dig -ups Soil sampling Pipe Coupons for material testing Pipeline pressure test 2. Conduct supplemental inspections and testing program. 3. Review results of supplemental inspections and testing with CITY OF FAYETTEVILLE. 4. Prepare letter report summarizing the results of the supplemental inspections and testing program. 5. Update report and provide ten copies. 3.1.6 Planning, Design, and construction related services associated with any rehabilitation work approval by the City of Fayetteville. 3.1.7 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. 3.1.8 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in any litigation or other proceeding involving the Project. 3.1.9 Extra Services 3.1.9.1 Services not specifically defined heretofore that may be authorized by CITY OF FAYETTEVILLE. Professional Seryiccs-Design-Revidoe City of Fayetteville, AR 90104.9572 36 Inch Water Line Study March 6.2003 A - 3 KOX0038 doe • 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 BLACK & VEATCH's control, BLACK & VEATCH shall notify CITY OF FAYETTEVILLE and request a formal contract 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 BLACK & VEATCH. If CITY OF FAYETTEVILLE indicates in writing that all or parts of such Contingent Additional Services are not required, BLACK & VEATCH 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 FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of BLACK & VEATCH: 4.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project. 4.2 Assist BLACK & VEATCH by placing at BLACK & VEATCH'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 BLACK & VEATCH to enter upon public and private property as required for BLACK & VEATCH to perform his services under this Agreement. Professional Services-Design-Revidoc City of Fayetteville. AR 90104.9572 36 Inch Water Linc Study March 6,2003 A - 4 unonnywa doc 4.4 Exarnine all studies, reports, sketches, cost opinions, Bid Documents, Drawings, proposals, and other documents presented by BLACK & VEATCH 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 BLACK & VEATCH 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 required by program requirements. 4.10 Furnish, or direct BLACK & VEATCH 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 FAYETTEVILLE shall provide copies of such documents for BLACK & VEATCH'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 BLACK & VEATCH in a timely manner. Professional Services-Design-Revidoc City of Fayetteville, AR 90104.9572 36 Inch Water Line Study March 6, 2003 A - 5 NO0003019 doe 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 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. BLACK & VEATCH will proceed with providing the authorized services immediately upon receipt of written authorization from CITY OF FAYETTEVILLE. Said authorization shall include the scope of thc services authorized and the time in which the services are to be completed. SECTION 6 - PAYMENTS TO BLACK & VEATCH 6.1 Compensation 6.1.1 Existing 36 inch Water Line Rehabilitation Study For the Scope of Services during the Final Design Phase described herein, CITY OF FAYETTEVILLE shall pay BLACK & VEATCH the lump sum amount of One Hundred Twenty Six Thousand Three Hundred Dollars (US $126,300). 6.1.1.1 Evaluation and Report. A lump sum amount of Seventy -Six Thousand Five Hundred Thirty Dollars (US $76,530). 6.1.1.2 Reimbursable expenses for travel, substance lodging, motor vehicle rental and fuel by DESIGN PROFESSIONAL shall be billed at cost and shall not exceed Two Thousand Fifty Dollars (US $2,050). 6.1.1.3 Subconsultant costs shall be billed at invoice amount times 1.05 and shall not exceed Forty -Seven Thousand, Seven Hundred Dollars (US 47,720) 6.1.1.4 Additional services shall be billed based on a negotiated lump sum amount or billing rates and a predetermined scope of services. 6.1.1.5 Subject to the City Council approval, adjustment of the lump sum amount may be made should BLACK & VEATCH establish and CITY OF FAYETTEVILLE agree that there has been or is to be a significant change in scope, complexity or character of the services to be performed; or if CITY OF FAYETTEVILLE decides to shorten the duration of Professional Services-Design-Rev3.doc City of Fayetteville, AR 90104 9572 36 Inch Water Line Study March 6, 2003 A — 6 NC0303038 doC 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. 6.1.1.6 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 BLACK & VEATCFI'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 format to be developed by BLACK & VEATCH and approved by CITY OF FAYETTEVILLE. Applications for payment shall be accompanied each month by the updated project design schedule as the basis for determining the value earned as the work is accomplished. Final payment for Design services shall be made upon CITY OF FAYETTEVILLE's approval and acceptance with the satisfactory completion of the Design phase for the Project. 6.1.2 Additional Services For authorized Additional engineering services under Section 3, "Additional Services", compensation to BLACK & VEATCH shall be negotiated at the time Additional services are authorized. 6.2 Statements Statements and updated progress schedule for each calendar month will be submitted in electronic format simultaneously to CITY OF FAYETTEVILLE and Program Manager, followed by signed original document to CITY OF FAYETTEVILLE. Statements will be based on BLACK & VEATCH's estimated percent of services completed at the end of the preceding month, and justified by the updated progress schedule. Program Manager shall review the statement and forward them to CITY OF FAYETTEVILLE with his recommendations. 6.3 Payments All statements are payable upon receipt and due within thirty (30) days. If a portion of BLACK & VEATCH'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 BLACK & Professional Services-Design-Readoc City of Fayetteville, AR 90104.9572 36 Inch Water Line Study March 6, 2003 A — 7 MX033038 doe VEATCH 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, BLACK & VEATCH 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 BLACK & VEATCH 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 BLACK & VEATCH 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, BLACK & VEATCH will maintain (in United States Dollars) the following minimum insurance coverages: Type of Coverage Workers' Compensation Employers' Liability Commercial General Liability Bodily Injury and Property Damage Automobile Liability: Bodily Injury and Property Damage Professional Liability Insurance Limits of Liability Statutory $500,000 Each Accident $1,000,000 Combined Single Limit $1,000,000 Combined Single Limit $1,000,000 Each Claim BLACK & VEATCH 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. Professional Services4)esign-Rev3doc City of Fayeneville, AR 901049572 36 Inch Water Line Study March 6.2003 A - 8 N3038 doc 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 BLACK & VEATCH as additional insureds, or, to endorse CITY OF FAYETTEVILLE and BLACK & VEATCH as additional insureds on construction Contractor's liability insurance policies covering claims for personal injuries and property damage. Construction Contractors shall be required to provide certificates evidencing such insurance to CITY OF FAYETTEVILLE and BLACK & VEATCH. 7.1.3 CITY OF FAYETTEVII,LE and BLACK & VEATCH 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 BLACK & VEATCH's services. If the services result in a Construction Phase, 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 BLACK & VEATCH for damage or liability covered by any construction Contractor's policy of insurance. 7.2 Professional Responsibility 7.2.1 BLACK & VEATCH will exercise reasonable skill, care, and diligence in the performance of BLACK & VEATCH's services and will carry out its responsibilities in accordance with customarily accepted professional engineering practices. BLACK & VEATCH agrees not to seek or accept any compensation or reimbursements from the City of Fayetteville for engineering work it performs to correct any errors, omissions or other deficiencies caused by BLACK & VEATCH 's failure to meet customarily accepted professional engineering practices. CITY OF FAYETTEVILLE retains all other remedies to recover for its damages caused by any negligence of BLACK & VEATCH. 7.2.2 In addition BLACK & VEATCH will be responsible to CITY OF FAYETTEVILLE for damages caused by its negligent conduct during its activities at the Project Site to the extent covered by BLACK & VEATCH's Commercial General Liability and Automobile Liability Insurance policies as specified in Paragraph 7.1.1. Professional Services-Design-Rev3.doc City of Fayetteville, AR 90104.9572 36 Inch Water Line Study March 6, 2003 A - 9 ICOX13038 dcc 7.3 Cost Opinions and Projections Cost opinions and projections prepared by BLACK & VEATCH relating to construction costs and schedules, operation and maintenance costs, equipment characteristics and performance, and operating results are based on BLACK & VEATCH's experience, qualifications, and judgment as a design professional. Since BLACK & VEATCH 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 priccs, economic conditions, competitive bidding or market conditions, and other factors affecting such cost opinions or projections, BLACK & VEATCH docs not guarantee that actual rates, costs, performance, schedules, and related items will not vary from cost opinions and projections prepared by BLACK & VEATCH. 7.4 Changes CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of BLACK & VEATCH'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 BLACK & VEATCH. 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 BLACK & VEATCH is given: Professional Services-Design-Revidoc City of Fayeneville, AR 90104.9572 36 Inch Water Line Study March 6.2003 A— 10 NO000303d doc • 7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intcnt 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 BLACK & VEATCH at the time of termination may be adjusted to cover any additional costs to CITY OF FAYETTEVILLE because of BLACK & VEATCH's default. 7.5.4 If termination for default is effected by BLACK & VEATCH, or if termination for convenience is effected by CITY OF FAYETTEVILLE, 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 BLACK & VEATCH for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by BLACK & VEATCH 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, BLACK & VEATCH 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 BLACK & VEATCH 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 FAYETFEVILLE may take over the work and may award another party an agreement to complete the work under this Agreement. Professional Services-Design-Rev3.doc City of Fayetteville, AR 90104957236 Inch Water Line Study March 6, 2003 A - 11 N0:003038 doe 7.5.7 lf, after termination for failure of BLACK & VEATCH to fulfill contractual obligations, it is determined that BLACK & VEATCH 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 BLACK 8c VEATCH are suspended or delayed by CITY OF FAYETTEVILLE or by other events beyond BLACK & VEATCH's reasonable control, BLACK & VEATCH shall be entitled to additional compensation and time for reasonable costs incurred by BLACK & VEATCH in temporarily closing down or delaying the Project. 7.7 Rights and Benefits BLACK & VEATCH'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 BLACK & VEATCH 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 BLACK & VEATCH 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, but 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. Professional Services-Dcsign-Rev3 doc City of Fayetteville. AR 90104.9572 36 Inch Water Line Study March 6. 2003 A— 12 1.4300331138 doe 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 incidcnt, 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 BLACK & VEATCH 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 BLACK & VEATCH 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 BLACK & VEATCH and thc 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 BLACK & VEATCH for services rendered by BLACK & VEATCH. 7.10 Publications Recognizing the importance of professional development on the part of BLACK & VEATCH's employees and the importance of BLACK & VEATCH's public relations, BLACK 8c VEATCH may prepare publications, such as technical papers, articles for periodicals, and press releases, pertaining to BLACK & VEATCH'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 CITY OF FAYETTEVILLE's comments to BLACK & VEATCH. 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 BLACK & VEATCH's activities pertaining to any such publication shall be for BLACK & VEATCH's account. Professional Servica-Design-Rcvidoc City of Fayeneville, Alt 901049572 36 Inch Water Line Study March 6. 2003 A- 13 ICIX03038 doc 7.11 Indemnification 7. I 1.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to indemnify, defend, and hold harmless CITY OF FAYETTEVILLE, and BLACK & VEATCH 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 BLACK & VEATCH may use or modify BLACK & VEATCH's proprietary computer models in service of CITY OF FAYETTEVILLE under this Agreement, or BLACK & VEATCH may develop computer models during BLACK & VEATCH's service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or development by BLACK & VEATCH does not constitute a license to CITY OF FAYETTEVILLE to use or modify BLACK & VEATCH's computer models. Said proprietary computer models shall remain the sole property of the BLACK & VEATCH. CITY OF FAYETTEVILLE and BLACK & VEATCH will enter into a separate license agreement if CITY OF FAYETTEVILLE wishes to use BLACK & VEATCH'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, estimates, specification field notes, and data are and remain the property of CITY OF FAYETTEVILLE. BLACK & VEATCH may retain reproduced copies of drawings and copies of other documents. Engineering documents, drawings, and specifications prepared by BLACK & VEATCH as part of the Services shall become the property of CITY OF FAYETTEVILLE when BLACK & VEATCH has been compensated for all Services rendered, provided, however, that BLACK & VEATCH shall have the unrestricted right to their use. BLACK & VEATCH 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 BLACK & VEATCH. Any files delivered in electronic medium may not work on systems and software different than those with which they were originally produced. BLACK & VEATCH makes no warranty as to the compatibility of Professional Servicts-Design-Revidoc City of Fayetteville, AR 90104 9572 36 Inch Water Line Study March 6, 2003 A - 14 PCOX130313 doe 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 copics 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 FAYETTEVILLE's address: 113 West Fayetteville Fayetteville, Arkansas 72701 Attn: Mr. Greg Boettcher, P.E., Director of Water and Wastewater BLACK & VEATCH's address: 8400 Ward Parkway Kansas City, Missouri 64114 Attn: Mr. Steven D. Phillips, Vice President 7.15 Successor and Assigns CITY OF FAYETTEVILLE and BLACK & VEATCH each binds himself and his successors, executors, administrators, and assigns to the other party of this Agreement and to the successors, exccutors, administrators, and assigns of such other party, in respect to all covenants of this Agreement; except as above, neither CITY OF FAYETTEVILLE nor BLACK & VEATCH shall assign, sublet, or transfer his interest in the Agreement without the written consent of the other. 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 BLACK & VEATCH and CITY OF FAYETTEVILLE relative to the Scope of Services herein. Since terms contained in purchase orders do Professional Serviccs-Design-Reyidoc City of Fayetteville, AR 90104 9572 36 Inch Water Line Study March 6,2003 A- 15 NO0003019 doc not generally apply to professional services, in the event CITY OF FAYETTEVILLE issues to BLACK & VEATCH a purchase order, no preprinted terms thereon shall become a part of this Agreement. Said purchase order document, whether or not signed by BLACK & VEATCH, 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 BLACK & VEATCH: 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 BLACK & VEATCH of responsibility for the technical adequacy of the work. The CITY OF FAYETTEVILLE's review, approval or acceptancc 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 BLACK & VEATCH shall be and shall remain liable, in accordance with applicable law, for all damages to CITY OF FAYEITEVILLE caused by BLACK & VEATCH's negligent performance of any of the services furnished under this Agreement except for crrors, omissions or other deficiencies to the extent attributable to CITY OF FAYETTEVILLE or CITY OF FAYETTEVILLE-furnished data. 8.1.3 BLACK & VEATCH's obligations under this clause are in addition to BLACK & VEATCH'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 BLACK & VEATCH for faulty materials, equipment, or work. Professional Services-Design-Revidoe City of Fayetteville, AR 90104.9572 36 Inch Water Line Study March 6, 2003 A- 16 WOXI3038 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 BLACK & VEATCH 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 BLACK & VEATCH shall maintain books, records, documents and other evidence directly pertinent to performance on work under this Agreement in accordance with generally accepted accounting principles and practices consistently applied in effect on the date of execution of this Agreement. BLACK & VEATCH shall also maintain the financial information and data used by BLACK & VEATCH 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. Thc 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. BLACK & VEATCH 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 on assisted work under this Agreement and until three years from the date of final payment for the project. 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. 8.3.3 This right of access clause (with respect to financial records) applies to: 8.3.3.1 Negotiated prime agreements: 8.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting the price of any formally advertised, competitively awarded, fixed price agreement: Professional Services-Design-Rev3.doc City of Fayeneville, Alt 90104.9572 36 Inch Water Line Study Miucii 6,2003 A — 17 NOX03038 doc 8.3.3.3 Agreements or purchase orders under any agreement other than a formally advertised, competitively awarded, fixed price agreement. However, this right of access does not apply to a prime agreement, lower tier subagreement or purchase order awarded after effective price competition, except: 8.3.3.3.1 With respect to record pertaining directly to subagreement performance, excluding any financial records of BLACK & VEATCH; 8.3.3.3.2 If there is any indication that fraud, gross abuse or corrupt practices may be involved; 8.3.3.3.3 If the subagreemcnt is terminated for default or for convenience. 8.4 Covenant Against Contingent Fees BLACK & VEATCH warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement of understanding for a commission, percentage, brokerage or continent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by BLACK & VEATCH for the purpose of securing business. For breach or violation of this warranty, CITY OF FAYETTEVILLE shall have the right to annul this Agreement without liability or at its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. 8.5 Gratuities 8.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that BLACK & VEATCH or any of BLACK & VEATCH's agents or representatives, offered or gave gratuities (in the form of entertainment, gifts or otherwise) to any official, employee or agent of CITY OF FAYETTEVILLE, the State or EPA in an attempt to secure an agreement or favorable treatment in awarding, amending or making any determinations related to the performance of this Agreement, CITY OF FAYETTEVILLE may, by written notice to BLACK & VEATCH terminate this Agreement. CITY OF FAYETTEVILLE may also pursue other rights and remedies that the law or this Agreement provides. However, the existence of the facts on which CITY OF FAYETTEVILLE bases such finding shall be in issue and may be reviewed in proceedings under the Remedies clause of this Agreement. Professional Services-Design-Rev3.doc City of Fayetteville, AR 90104.9572 36 Inch Water Line Study March 6, 2003 A - 18 NiX003038 dcc 8.5.2 In the event this Agreement is terminated as provided in Paragraph 8.5.1, CITY OF FAYETTEVILLE may pursue the same remedies against BLACK & VEATCH as it could pursue in the event of a brcach of the Agreement by BLACK & VEATCH. As a penalty, in addition to any other damages to which it may be entitled by law, CITY OF FAYETTEVILLE may pursue exemplary damages in an amount (as determined by CITY OF FAYETTEVILLE) which shall be not less than three nor more than ten times the costs BLACK & VEATCH incurs in providing any such gratuities to any such officer or employee. 8.6 Arkansas Freedom of Information Act City contracts and documents, including internal documents and documents of subcontractors and sub - consultants, prepared while performing City contractual work are subject to the Arkansas Freedom of Information Act (FOIA). If a Freedom of Information Act request is presented to the CITY OF FAYETTEVILLE, BLACK & VEATCH will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25-19- 101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 8.7 Debarment And Suspension I certify that to the best of my knowledge and belief that the company that I represent and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three year period preceding this proposal been convicted of or had a civil judgement rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and Professional Services-Design-Revidoe City of Fayetteville, AR 901049572 36 Inch Water Line Study Much 6, 2003 A- 19 PC0033038 cbc