HomeMy WebLinkAbout80-04 RESOLUTION•
RESOLUTION NO. 80-04
A RESOLUTION TO APPROVE A CONTRACT FOR ENGINEERING
SERVICES WITH TERRACON, INC. IN THE AMOUNT OF $50,000.00
FOR ASSESSMENT, DESIGN, BIDDING, INSPECTION AND CONTRACT
MANAGEMENT SERVICES FOR REPAIRS RELATED TO THE RECENT
FLOOD DAMAGE AND TO APPROVE A BUDGET ADJUSTMENT OF
$100,000.00
WHEREAS, the mid-April rainstorms caused flooding damage throughout
Fayetteville and Northwest Arkansas; and
WHEREAS, flood damage to City property caused by this storm impacted Kings
Drive, the dam structure at Lake Wilson, debris piled up in Lake Sequoyah, fencing at the
airport, and various water, waste water, and drainage work and structures; and
WHEREAS, the Engineering Division does not have sufficient personnel
resources to inspect and plan repairs for the urgently needed projects.
NOW, THEREFORE, 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 a contract for engineering services with Terracon, Inc. in the amount of
$50,000.00 (attached as Exhibit A) for assessment, design, bidding, inspection and
contract management services for repairs related to the recent flood damage and approves
a budget adjustment in the amount of $100,000.00 (attached as Exhibit B) to pay for this
contract and other potential work necessitated by the flood damage.
PASSED and APPROVED this the 18th day of May, 2004.
APPROVED:
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SONDRA SMITH, City Clerk
By:
DAN COODY, Mayor
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Attachment A
Scope of Service for Preliminary Assessment Phase
Urgent assessment of Flood damage to Public Infrastructure
Protect Background
The City of Fayetteville has a major investment in public infrastructure and is responsible for its
operation, maintenance and improvement. Some of this infrastructure has been damaged during recent
flood events. Due to the nnforseen project urgency, the short timeline for completion of this project and
the workload of the city's engineering department; the City of Fayetteville will contract the engineering
services to a private consultant. The immediate needs relate to completion of a assessment and
preliminary design for the projects and the commencement of fmal design.
Scope of Work for Assessment and Design Services
The assessment and preliminary design services shall define the scope, nature, extent, costs and schedule
for the project; therefore, this initial phase will be performed on an hourly rate basis. Due to the schedule
challenges for this project, the assessment and preliminary design includes allowances for the
commencement of certain final design elements; avoiding delays whilenegotiation of the final design
phase services are being completed. The activities being authorized under the contact amount include:
Assessment and Preliminary Engineering Report -A written report will detail the project need,
scope and outcomes This report will include a description of existing facilities, evaluation of
feasible alternatives, economic justification of recommended improvements, project cost
prediction, project schedule, project right-of-way needs and summation of recommendations. The
report shall define the project in sound economic and engineering terms, citing the specific
benefits that will be realized.
Engineering Field Surveys -Upon approval of the preliminary engineer's report on the project,
detailed engineering surveys shall be commenced under this scope of services These surveys
shall include topographic and level surveys, aerial photography, utility location verification, and
schematic development of the construction drawings.
Final Design Phase/Bidding Phase/Construction Phase/Inspection Services -Once the scope of
the project is defined, a detailed breakdown of additional engineering services needed to complete
the project shall be developed for review, approval and inclusion in a contract amendment.
(See Attachment A — Addendum) ,
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Attachment A - Addendum
The scope of services that Terracon is proposing for the Basic Services indicated under
Items 2.2 -Preliminary Assessment Phase and 2.3 -Preliminary Design Phase of the
Agreement for Professional Services is as follows:
Item 2.2 The Scope of Services to be furnished by Terracon during the Preliminary
Assessment Phase includes: reviewing available plans and as -built
drawings relating to the designated public improvements; completing one
or more site visits by an engineer or team of engineers and professionals
to visually observe current conditions at the sites; completing a
preliminary assessment of the current conditions observed at each site;
making recommendations for additional intrusive explorations or testing
that are considered to be needed for the preliminary or final design;
developing a preliminary conceptual design for repairing those
improvements that are observed to need repair; and, providing a report
documenting the methods, observations, conclusions and preliminary
conceptual design(s) from the Preliminary Assessment.
Item 2.3 The Scope of Services to be furnished by Terracon during the Conceptual
Design Phase includes: developing a preliminary conceptual design for
repairs that are recommended; providing a preliminary opinion of cost and
schedule for the recommended conceptual repair(s); and providing an
estimated cost and schedule for completing final design, if recommended.
Additional intrusive explorations and testing, as well as surveying services described
under the Engineering Field Surveys on Attachment A can be initiated under this scope
of work as budget allows, but depending on the scope of services to be provided, these
services may require modifications to the contract price in order to be completed.
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
TERRACON, INC.
THIS AGREEMENT is made as of May 18, 2004, by and between City of Fayetteville, Arkansas, acting
by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and Terracon, Inc. with
offices located in Springdale, AR (hereinafter called Terracon).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the assessment, design, permitting, construction, and maintenance, and in particular, the assessment
of damage to infrastructure caused by recent flooding ("the Project"). Therefore, CITY OF
FAYETTEVILLE and Terracon in consideration of their mutual covenants agree as follows:
Terracon 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 Terracon'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 Terracon 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 ofTerracon.
1.2 Assignments may include services described hereafter as Basic Services or as Additional
Services of Terracon.
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.
Urgent Engineering Services
Related to Flood Damages
A — I 052303
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SECTION 2 - BASIC SERVICES
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 Terracon during the Preliminary Assessment
Phase is included in Section 2.2 hereafter and in Appendix A attached hereto and made
part of this Agre ment.
2.1.1.2 The Scope of Services to be furnished by Terracon during the Preliminary Design Phase
is included in Section 2.3 hereafter and in Appendix A attached hereto and made part of
this Agreement.
2.1.1.3 The Scope of Services to be furnished by Terracon during the Final Design Phase, if
any, will be finalized and contained in an amendment to this Agreement after Preliminary
Design is completed.
2.1.1.4 The Scope of Services to be fumished by Terracon during the Bidding Phase, if any, will
be finalized and contained in an amendment to this Agreement after Preliminary Design
is completed.
2.1.1.5 The Scope of Services to be furnished by Terracon during the Construction Phase, if
any, will be finalized and contained in an amendment to this Agreement after Preliminary
Design is completed.
2.1.1.6 The preliminary Scope of Services to be fumished by Terracon for Resident Services
during Construction, if any, will be finalized and contained in an amendment to this
Agreement after Preliminary Design is completed.
2.2 Preliminary Assessment Phase
2.2.1 The Preliminary Assessment Phase will consist of an engineering analysis of multiple flood
damaged public improvements. The assessment will evaluate the damage and its cause and
determine if rehabilitation is appropriate or if other altematives are more practical from an
economic and use perspective.
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2.3 Preliminary Design Phase
2.3.1 The Preliminary Design Phase will include the evaluation of alternatives, the development of
a comprehensive project cost estimate, the creation of a project schedule, the acquisition of
approvals from City of Fayetteville for the preliminary design, the completion of detailed
surveys for engineering design if necessary, the development of right-of-way procurement
needs if necessary, and the commencement of final design for the Project if approved by the
City.
SECTION 3 - ADDITIONAL SERVICES
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by Terracon 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 Administrative Assistance
Provide Contract and Project administration to the degree authorized by CITY OF FAYETTEVILLE.
3.1.3 Miscellaneous Studies
3.1.4 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in any litigation or
other proceeding involving the Project.
3.1.5 Extra Services
3.1.5.1 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 Terracon's control, Terracon shall notify CITY OF
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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 Terracon. If CITY OF FAYETTEVILLE indicates in writing that
all or parts of such Contingent Additional Services are not required, Terracon 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 Terracon:
4.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.2 Assist Terracon by placing at Terracon'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 Terracon to enter upon public and private
property as required for Terracon 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 Terracon and render in writing decisions pertaining
thereto.
4.5 Provide such professional legal, accounting, fmancial, 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
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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 Terracon 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 of the Wastewater System Improvement Project.
4.10 Furnish, or direct Terracon 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 Terracon'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 Terracon 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. Terracon 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.
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SECTION 6 - PAYMENTS
6.1 Compensation
6.1.1 Preliminary Design Phase Services
For the Scope of Services during the Preliminary Design Phase described herein, CITY OF
FAYETTEVILLE authorizes fifty thousand dollars ($50,000.00) as compensation for the scope of work
set forth in Attachment A. Terracon will be compensated on the basis of a current schedule of hourly
rates, the current schedule being attached to and made a part of this agreement. The costs and basis for
compensation include all preliminary design costs, including labor, overhead, direct expenses,
subcontracts and fees. The total contract amount authorize for the preliminary design phase services is
fifty thousand dollars ($50,000.00).
6.1.1.1 Subject to the City Council approval, adjustment of the contract amount may be made
should Terracon 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 consistent with Terracon'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 Terracon 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 eamed as the work is accomplished. Final payment for
services shall be made upon CITY OF FAYETTEVILLE's approval and acceptance with
the satisfactory completion of the Project.
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6.1.2 Final Design Phase Services
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Preliminary Phase Services.
6.1.3 Bidding Phase Services
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Preliminary Phase Services.
6.1.4 Construction Phase Services
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Preliminary Phase Services.
6.1.5 Post -Construction Phase Services
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Preliminary Phase Services.
6.1.6 Resident Services During Construction
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Preliminary Phase Services.
6.1.7 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services", compensation to
Terracon 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 to CITY OF
FAYETTEVILLE by signed original document. Statements will be based on Terracon's estimated
percent of services completed at the end of the preceding month, and justified by the updated progress
schedule.
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6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of Terracon'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 Terracon 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, Terracon 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 Terracon 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 Terracon 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, Terracon will maintain (in United States
Dollars) the following minimum insurance coverages:
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Type of Coverage Limits of Liability
Workers' Compensation Statutory
Employers' Liability $500,000 Each Accident
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
Professional Liability Insurance $1,000,000 Each Claim
Terracon 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 Terracon as additional insureds, or, to endorse CITY OF
FAYETTEVILLE, and Terracon 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 Terracon. All contract insurance carriers shall be required to list
CITY OF FAYETTEVILLE as certificate holder, fumishing copies of the contractor's
insurance certificate to each party
7.1.3 CITY OF FAYETTEVILLE and Terracon 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 Terracon'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 Terracon for
damage or liability covered by any construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 Terracon will exercise reasonable skill, care, and diligence in the performance of
Terracon's services and will carry out its responsibilities in accordance with customarily
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accepted professional engineering practices. CITY OF FAYETTEVILLE will promptly
report to Terracon any defects or suspected defects in Terracon's services of which CITY
OF FAYETTEVILLE becomes aware, so that Terracon can take measures to minimize the
consequences of such a defect. CITY OF FAYETTEVILLE and Terracon 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 Terracon.
7.2.2 In addition Terracon 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
Terracon'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 Terracon relating to construction costs and schedules,
operation and maintenance costs, equipment characteristics and performance, and operating results are
based on Terracon's experience, qualifications, and judgment as a design professional. Since Terracon
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, Terracon does not guarantee that actual rates, costs,
performance, schedules, and related items will not vary from cost opinions and projections prepared by
Terracon.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of Terracon'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
Terracon.
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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 Terracon is given:
7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, retum
receipt requested) of intent to terminate,
7.5.2.2 An opportunity for consultation with the terminating party prior to termination.
7.5.3 If termination for default is effected by CITY OF FAYETTEVILLE, an equitable adjustment
in the price provided for in this Agreement shall be made, but
7.5.3.1 No amount shall be allowed for anticipated profit on unperformed services or other work,
7.5.3.2 Any payment due to Terracon at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of Terracon's default.
7.5.4 If termination for default is effected by Terracon, 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 Terracon for services rendered and expenses incurred prior to
the termination, in addition to termination settlement costs reasonably incurred by Terracon
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, Terracon shall:
7.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
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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 Terracon 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 Terracon to fulfill contractual obligations, it is determined
that Terracon 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 Terracon are suspended or delayed by CITY OF FAYETTEVILLE or by
other events beyond Terracon's reasonable control, Terracon shall be entitled to additional
compensation and time for reasonable costs incurred by Terracon in temporarily closing down or
delaying the Project.
7.7 Rights and Benefits
Terracon'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 Terracon 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
Terracon 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
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of these procedures, such action shall be stayed, upon application by either party to a court of
proper jurisdiction, until the procedures in Paragraphs 7.8.3 and 7.8.4 have been complied
with.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising prior to the making of final payment promptly after the occurrence of
any incident, action, or failure to act upon which a claim is based, the party seeking relief
shall serve the other party with a written Notice;
7.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give Terracon written Notice at the address listed in
Paragraph 7.14 within thirty (30) days after occurrence of any incident, accident, or first
observance of defector 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 Terracon 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 Terracon 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 Terracon for services rendered by Terracon.
7.10 Publications
Recognizing the importance of professional development on the part of Terracon's employees and the
importance of Terracon's public relations, Terracon may prepare publications, such as technical papers,
articles for periodicals, and press releases, pertaining to Terracon'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 Terracon. CITY OF FAYETTEVILLE may require
deletion of proprietary data or confidential information from such publications, but otherwise CITY OF
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FAYETTEVILLE will not unreasonably withhold approval. The cost of Terracon's activities pertaining
to any such publication shall be for Terracon'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 Terracon 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
Terracon may use or modify Terracon's proprietary computer models in service of CITY OF
FAYETTEVILLE under this Agreement, or Terracon may develop computer models during Terracon's
service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or development by
Terracon does not constitute a license to CITY OF FAYETTEVILLE to use or modify Terracon's
computer models. Said proprietary computer models shall remain the sole property of the Terracon.
CITY OF FAYETTEVILLE and Terracon will enter into a separate license agreement if CITY OF
FAYETTEVILLE wishes to use Terracon'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. Terracon may retain reproduced copies of drawings and copies of other
documents.
Engineering documents, drawings, and specifications prepared by Terracon as part of the Services shall
become the property of CITY OF FAYETTEVILLE when Terracon has been compensated for all
Services rendered, provided, however, that Terracon shall have the unrestricted right to their use.
Terracon 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 Terracon.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. Terracon makes no warranty as to the compatibility of these files
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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:
Terracon's address:
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and Terracon 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 Terracon 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 Terracon 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 Terracon a purchase order, no
preprinted terms thereon shall become a part of this Agreement. Said purchase order document, whether
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or not signed by Terracon, 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 Terracon:
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
Terracon of responsibility for the technical adequacy of the work. CITY OF
FAYETTEVILLE's review, approval or acceptance of, nor payment for any of the services
shall be construed as a waiver of any rights under this Agreement or of any cause of action
arising out of the performance of this Agreement.
8.1.2 Terracon shall be and shall remain liable, in accordance with applicable law,'for all damages
to CITY OF FAYETTEVILLE caused by Terracon's negligent performance of any of the
services fumished 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 Terracon's obligations under this clause are in addition to Terracon'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 Terracon for faulty materials,
equipment, or work.
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 Terracon 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 Terracon 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. Terracon shall also maintain the financial information and data used by
Terracon in the preparation of support of the cost submission required for any negotiated
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agreement or change order and send to CITY OF FAYETTEVILLE a copy of the cost
summary submitted. 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. Terracon 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. hi 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:
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 Terracon;
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 subagreement is terminated for default or for convenience.
8.4 Covenant Against Contingent Fees
Terracon 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
Terracon for the purpose of securing business. For breach or violation of this warranty, CITY OF
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