HomeMy WebLinkAbout90-03 RESOLUTION• •
RESOLUTION NO. 90-03
A RESOLUTION AWARDING A CONTRACT IN THE AMOUNT
OF TWO HUNDRED TWENTY THOUSAND NINE HUNDRED
SEVENTY-SIX DOLLARS ($220,976.00) TO USI -ARKANSAS, INC.
FOR ENGINEERING SERVICES ASSOCIATED WITH THE UPPER
HAMESTRING CREEK BASIN AND THE SHENANDOAH
TRAILER PARK AREA; AND APPROVING A PROJECT
CONTINGENCY IN THE AMOUNT OF TWENTY THOUSAND
DOLLARS ($20,000.00).
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 awards a contract in the amount of Two Hundred Twenty Thousand
Nine Hundred Seventy -Six Dollars ($220,976.00) to USI -Arkansas, Inc. for
engineering services associated with the Upper Hamestring Creek Basin and the
Shenandoah Trailer Park Area. A copy of which, marked Exhibit "A" is attached
hereto and made a part hereof.
Section 2. That the City Council of the City of Fayetteville, Arkansas,
hereby approves a project contingency in the amount of Twenty Thousand
Dollars ($20,000.00).
PASSED and APPROVED this 17th day of June, 2003.
• /y411'n71fr
SONDRA SMITH, City Clerk
APPROVED:
By
DA COODY, Mayo
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
USI -ARKANSAS, INC.
THIS AGREEMENT is made as of ju K i / 7 , 2043, by and between City of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and USI -
Arkansas, Inc., with offices located in Springdale, AR. (hereinafter called USI).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the study, planning, design, and construction of drainage projects in the City and in particular the
Upper Hamestring Basin and Shenandoah Area (The "Project"). Therefore, CITY OF FAYETTEVILLE
and USI in consideration of their mutual covenants agree as follows:
USI 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 USI'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 USI 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
1.1 Services on any assignment shall be undertaken only upon written Authorization of CITY OF
FAYETTEVILLE and agreement of USI.
1.2 Assignments may include services described hereafter as Basic Services or as Additional
Services of USI.
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
Mayor and the City Council in advance of the change in scope, costs, fees, or
delivery schedule.
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SECTION 2 - BASIC SERVICES OF
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 furnished by US1 during the Final Design 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 USI during the Bidding Phase is included in
Section 2.3 hereafter and in Appendix B attached hereto and made part of this
Agreement.
2.1.1.3 The Scope of Services to be furnished by 1151 during the Construction Phase, is included
in Section 2.3 hereafter and in Appendix C attached hereto and made part of this
Agreement.
2.2 Final Design Phase
2.2.1 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.
2.2.1.1 Bid documents shall be based on Construction Specifications Institute (CSI) Master
Format and Section Format and shall incorporate CITY OF FAYETTEVILLE's standard
general conditions and forms. Text documents shall be provided to CITY OF
FAYETTEVILLE in Microsoft® Word version 2000 software. Contract drawings shall
be prepared using standard borders, sheet sizes, title blocks and CADD standards
provided by CITY OF FAYETTEVILLE. USI may use their normal software for the
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preparation of drawings but the final product shall be provided to CITY OF
FAYE11EVILLE in Autodesk AutoCAD version 2000.
2.2.1.1.1 Develop and include in Appendix A of this Agreement, a project design schedule in
which USI shall include, in an acceptable level of detail, the steps and milestone
dates to be undertaken by USI in the completion of this final design including a
schedule for design reviews to be conducted by the CITY OF FAYETTEVILLE.
2.2.1.2 When requested by the CITY OF FAYETTEVILLE's Director of Community Planning
and Engineering Services, prepare for and attend City Council meetings to provide
periodic updates on the progress of the project.
2.2.1.3 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) altemates, and the alternates shall be
developed and described in accordance with Title 22, Article 9-203 of the Arkansas
Code.
2.2.2 Prepare technical criteria, written descriptions, design data, and applications necessary for
filing applications for permits from or approvals of govemmental 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.
2.2.3 Advise CITY OF FAYETTEVILLE of final Opinion of Probable Project Costs.
2.2.4 Furnish CITY OF FAYETTEVILLE with 4 copies of the final Bid Documents.
2.2.5 Determine land and easement requirements and provide consultation and assistance on
property procurement as related to professional engineering services being performed.
2.2.6 Design shall be reviewed by CITY OF FAYETTEVILLE, or such parties as CITY OF
FAYETTEVILLE shall designate, at the applicable completion levels outlined below.
2.2.6.1 Holly / Vista Area Improvements — 60 percent and 90 percent.
2.2.6.2 Sang / Berry Area Improvements — 60 percent and 90 percent.
2.2.6.3 Shenandoah Area Drainage Improvements — 60 percent and 90 percent.
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2.2.6.4 Recommended Ditch Cleaning Improvements — 60 percent and 90 percent.
2.2.6.5 Hydraulic & Hydrology Studies of Hamestring Creek Downstream of 1-540 — 60 and 90
percent.
2.3 Bidding Phase
2.3.1 It is anticipated that there will be at least two construction contracts for which bid phase
services will be performed.
2.3.2 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 of a local
newspaper(s) of countywide and statewide circulation and shall be coordinated with CITY
OF FAYETTEVILLE purchasing agent and an affidavit of publication secured.
2.3.3 Prepare addenda for drawings and Bid Documents as required in accordance with
Construction Contract General Conditions.
2.3.4 Secure updated state wage rate decisions and incorporate into the Bid Documents. Update
wage rate decision by addendum if necessary.
2.3.5 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 bidders an appropriate non-refundable fee to offset cost of reproducing and
distributing Bidding Documents.
2.3.6 Assist CITY OF FAYETTEVILLE in obtaining and evaluating bids and preparing
construction contracts.
2.3.6.1 USI shall attend a Pre -Bid Conference organized, convened, and conducted by the CITY
OF FAYETTEVILLE to explain the project requirements and receive questions from
prospective bidders. USI shall consider the questions received and issue necessary
clarifications and changes to the Bid Documents through the use of addenda. Make
logistical arrangements for and conduct a site tour of the project area.
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2.3.7 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.
2.3.8 Make recommendations regarding award of the construction contracts.
2.4 Construction Phase
2.4.1 It is anticipated that there will be at least two construction contracts for which construction
services will be performed.
2.4.2 Attend a Pre -Construction Conference scheduled by CITY OF FAYETTEVILLE. At the
time of the Pre -Construction Conference, a Notice to Procced will be issued.
2.4.3 Furnish professional engineers to make visits to the site (as distinguished from the services of
a resident Project Representative) as appropriate to observe the progress and quality of the
executed work and to determine in general if the work is proceeding in accordance with the
contract documents. In performing these services, the Engineer shall have no control over,
nor responsibility for the Contractor's means, methods, sequence, techniques or procedures in
performing the work, or for safety programs in connection with the work. These are solely
the responsibilities of the Contractor, who is also responsible for complying with all health
and safety precautions as required by any regulatory agencies.
2.4.4 Consult with and advise the CITY OF FAYETTEVILLE; issue all instructions to the
contractor requested by the CITY OF FAYETTEVILLE; and prepare routine change orders
as required.
2.4.5 Review samples; catalog data, schedules, shop drawings, laboratory, shop and mill tests of
material and equipment and other data, which the contractor submits. This review is for the
benefit of the CITY OF FAYETTEVILLE to ensure general conformance with the design
concept of the project and general compliance by the contractor with the information given in
the contract documents. It does not relieve the contractor of any responsibility such as
dimensions to be confirmed and correlated at the job site, appropriate safety measures to
protcct workers and the public, or the necessity to construct a complete and workable facility
in accordance with the contract documents. -.
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2.4.6 Prepare and verify monthly and final estimates for payments to the contractor and fumish to
the CITY OF FAYETTEVILLE any necessary Contractor certifications as to payments to
subcontractors and suppliers; assemble written guarantees, which are required by the contract
documents.
2.4.7 Attend, in company with the CITY OF FAYETTEVILLE's representative, a final inspection
of the project. This inspection will be for conformance with the design concept of the project
and compliance with the contract documents.
2.4.8 Furnish to the CITY OF FAYETTEVILLE AutoCAD electronic digital drawing files along
with 2 black -line copies of the record drawings for the project.
2.5 Resident Services During Construction
2.5.1 Furnish the services of a resident Project Representative and other field personnel for on -the -
site observation of construction. The authority and duties of such resident Project
Representative is limited to examining the material furnished and observing the work done
and to reporting their findings to the Engineer. The Engineer will use the usual degree of care
and prudent judgment in the selection of a competent Project Representative, and will use
diligence to see that the Projcct Representative is on the job to perform the required duties.
SECTION 3 - ADDITIONAL SERVICES OF
3.1 General
If authorized in wnting by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by USI, USI 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 Easement preparation, including legal owner determination and easement description of the
property necessary to construct and maintain the necessary drainage facilities.
3.1.2 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in any litigation or
other proceeding involving the Project.
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3.1.3 Extra Services
3.1.3.1 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 USI's control, USI 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 USI. If CITY OF FAYETTEVILLE indicates in writing that all or parts of such
Contingent Additional Services arc not required, USI 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 USI:
4.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.2 Assist USI by placing at USI's disposal all available information pertinent to the assignment
including previous reports and any other data relative thereto.
4.3 Assist in gaining access to and making provisions for USI to enter upon public and private
property as required for USI 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 USI and render in writing decisions pertaining thereto.
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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 FAYE11EVILLE'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 USI whenever CITY OF FAYETTEVILLE observes or
otherwise becomes aware of any defect in the Project.
4.8 Authorize the preparation and submittal of all documents necessary for 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
necessary for bidding, public notice, or other law for public works projects.
4.10 Furnish, or direct USI to provide, necessary Additional Services as stipulated in Section 3 of
this Agreement or other services as required.
4.1 1 If CITY OF FAYE11EVILLE's standard bidding requirements, Agreement forms and
General Conditions are to be used, CITY OF FAYETTEVILLE shall provide copies of such
documents for USI'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 USI in a timely manner.
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. USI will proceed
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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
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 USI the lump sum amount of One Hundred Twenty-one Thousand Two Hundred Sixty -Eight
United States Dollars (US $121,268).
In addition to the above lump sum amount, USI will perform field surveying required for any or all of the
design of the necessary drainage facilities described herein, CITY OF FAYETTEVILLE, shall pay USI
on the basis of standard hourly rates in effect at the time the work is performed for the various
classifications of personnel. The maximum not -to -exceed cost of this work shall not exceed Thirty -Seven
Thousand Five Hundred Fourteen United States Dollars (US $37,514).
6.1.1.1 Subject to the City Council approval, adjustment of the lump sum amount may be made
should USI 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 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.
6.1.1.2 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 USI'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 USI and
approved by CITY OF FAYETTEVILLE. Applications for payment shall be
accompanied each month by the updated project design schedule as the basis for
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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 Bidding Phase Services
For the Scope of Services during the Bidding Phase described herein, CITY OF FAYETTEVILLE shall
pay USI the lump sum amount of Ten Thousand One Hundred Sixty-four United States Dollars (US
S10,164).
6.1.2.1 Subject to prior City Council approval, adjustment of the lump sum amount may be made
should USI 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 work from the time
period specified in the Agreement for completion of work and such modification warrants
such adjustment.
6.1.2.2 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for
Bidding Phase services consistent with USI'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
USI and approved by CITY OF FAYETTEVILLE. Applications for payment shall be
accompanied each month by the updated bidding services schedule as the basis for
determining the value earned as the work is accomplished. Final payment for Bidding
Phase services shall be made upon CITY OF FAYETTEVILLE's approval and
acceptance with the satisfactory completion of the Bidding Phase for the Project.
6.1.3 Construction Phase Services
For the Scope of Services during the Construction Phase described herein, CITY OF FAYETTEVILLE
shall pay USI on the basis of standard hourly rates in effect at the time the work is performed for the
various classifications of personnel. The maximum not -to -exceed cost of this work shall not exceed
Forty -Three Thousand Thirty United States Dollars (US 543,030).
6.1.3.1 Subject to prior City Council approval, adjustment of the maximum not -to -exceed
amount may be made should USI establish and CITY OF FAYETTEVILLE agree that
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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 work from the time period specified in the Agreement for completion of work
and such modification warrants such adjustment.
6.1.3.2 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for
Bidding Phase services consistent with USI'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
USI and approved by CITY OF FAYETTEVILLE. Final payment for Construction
Phase services shall be made upon CITY OF FAYETTEVILLE's approval and
acceptance with the satisfactory completion of the Construction Phase for the Project.
6.1.4 Additional Services
For Additional engineering services under Section 3, "Additional Services", easement preparation,
including legal owner determination and easement description of the property necessary to construct and
maintain the necessary drainage facilities described herein, CITY OF FAYETTEVILLE shall pay USI on
the basis of a lump sum amount of Three Hundred United States Dollars (US $300) per easement. The
estimatcd maximum amount for easement services for the work to be constructed under schedules A, B,
and C in Appendix A is Nine Thousand United States Dollars (US S9,000).
6.1.4.1 Subject to prior City Council approval, adjustment of the lump sum amount may be made
should USI 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 FAYE 1 I EVILLE 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.
6.1.4.2 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such panics as CITY OF FAYETTEVILLE may designate for
Easement preparation services consistent with USI'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 USI and approved by CITY OF FAYETTEVILLE.
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For other authorized Additional engineering services under Section 3, "Additional Services",
compensation to USI shall be negotiated at the time Additional services are authorized.
6.2 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of USI's statement is
disputed by CITY OF FAYETTEVILLE, the undisputed portion shall be paid by CITY OF
FAYETTEVILLE by the due date. CrrY OF FAYETTEVILLE shall advise USI 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.
6.3 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, USI 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 USI 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 USI 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, USI 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
Bodily Injury and
Property Damage
$1,000,000 Combined Single Limit
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Automobile Liability:
Bodily Injury and
Property Damage
$1,000,000 Combined Single Limit
Professional Liability Insurance $1,000,000 Each Claim
USI 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) CITY OF FAYETTEVILLE's Protective Liability Insurance naming CITY OF
FAYETTEVILLE as a Named Insured and USI as additional insureds, or, to endorse CITY
OF FAYETTEVILLE, and USI 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 USI.
7.1.3 CITY OF FAYETTEVILLE, and USI 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 USI'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 USI for damage or liability covered
by any construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 USI will exercise reasonable skill, care, and diligence in the performance of USI's services
and will carry out its responsibilities in accordance with customarily accepted professional
engineering practices. USI 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 USI '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 USI.
7.2.2 In addition, USI 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 USI's
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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 USI relating to construction costs and schedules, operation and
maintenance costs, equipment characteristics and performance, and operating results are based on USI's
experience, qualifications, and judgment as a design professional. Since USI 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, USI does not guarantee that actual rates, costs, performance, schedules, and
related items will not vary from cost opinions and projections prepared by USI.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of USI'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
USI.
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.
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7.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that USI is given:
7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intern 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 USI at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of USI's default.
7.5.4 If termination for default is effected by USI, 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 USI for services rendered and expenses incurred prior to the termination, in
addition to termination settlement costs reasonably incurred by USI 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, USI 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 USI 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 USI to fulfill contractual obligations, it is determined that
USI had not failed to fulfill contractual obligations, the termination shall be deemed to have
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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 USI are suspended or delayed by CITY OF FAYETTEVILLE or by other
events beyond USI's reasonable control, USI shall be entitled to additional compensation and time for
reasonable costs incurred by USI in temporarily closing down or delaying the Project.
7.7 Rights and Benefits
USI'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 USI 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 USI
in the performance of this Agreement, and disputes conceming 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.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising pnor 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 USI 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
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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 CITY OF FAYETTEVILLE and
USI 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
USI 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 USI for services rendered by USI.
7.10 Publications
Recognizing the importance of professional development on the part of USI's employees and the
importance of USI's public relations, USI may prepare publications, such as technical papers, articles for
periodicals, and press releases, pertaining to USI's services for the Project. Such publications will be
provided to CITY OF FAYETTEVILLE in draft form for CITY OF FAYE11EVILLE's advance review.
CITY OF FAYETTEVILLE shall review such drafts promptly and provide CITY OF FAYETTEVILLE's
comments to USI. 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 USI's activities pertaining to any such publication shall be for USI'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 USI 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
USI may use or modify USI's proprietary computer models.in service of CITY OF FAYETTEVILLE
under this Agreement, or USI may develop computer models during USI's service to CITY OF
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FAYETTEVILLE under this Agreement. Such use, modification, or development by USI does not
constitute a license to CITY OF FAYETTEVILLE to use or modify USI's computer models. Said
proprietary computer models shall remain the sole property of the USI. CITY OF FAYETTEVILLE and
USI will enter into a separate license agreement if CITY OF FAYETTEVILLE wishes to use USI'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. USI may retain reproduced copies of drawings and copies of other
documents.
Engineering documents, drawings, and specifications prepared by USI as part of the Services shall
become the property of CITY OF FAYETTEVILLE when USI has been compensated for all Services
rendered, provided, however, that USI shall have the unrestricted right to their use. USI 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 USI.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. USI 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.
7.14 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 Mountain
Fayetteville AR 72701
USI's address:
4710 South Thompson, Suite 102
Springdale, AR 72764
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7.15 Successor and Assigns
CITY OF FAYETTEVILLE and USI 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 USI 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 USI 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 USI a purchase order, no
preprinted terms thereon shall become a part of this Agreement. Said purchase order document, whether
or not signed by USI, 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 USI:
8.1.1 USI shall be and shall remain liable, in accordance with applicable law, for all damages to
CITY OF FAYETTEVILLE caused by USI'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.
8.1.2 UST's obligations under this clause are in addition to USI'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 USI for faulty materials, equipment, or work.
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