HomeMy WebLinkAbout116-05 RESOLUTION•
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
GARVER ENGINEERS, LLC
THIS AGREEMENT is made as of
JUJU- al
, 2005, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and Garver Engineers, LLC with offices located in Fayetteville (hereinafter called GARVER).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the planning, design, permitting, and construction of roadways within the City of Fayetteville, and in
particular, engineering and surveying services related to proposed improvements to Van Asche Drive
from its termination in the existing CMN Business Park II, Phase I, west to Gregg Avenue or as further
described in Appendix A. Therefore, CITY OF FAYETTEVILLE and GARVER in consideration of
their mutual covenants agree as follows:
GARVER 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 GARVER's services. All services shall be performed under
the direction of a professional engineer registered in the State of Arkansas and qualified in the particular
field. If Construction Phase Services are to be provided by GARVER under this Agreement, the
construction shall be executed under the observation of a professional engineer registered in the State of
Arkansas in accordance with Arkansas Code Amended §22-9-101.
SECTION 1 - AUTHORIZATION OF SERVICES
1.1
Services on any assignment shall be undertaken only upon written Authorization of CITY
OF FAYETTEVILLE and agreement of GARVER. Assignments may include services
described hereafter as Basic Services or as Additional Services of GARVER.
1.2 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City
Council in advance of the change in scope, costs, fees, or delivery schedule.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
1 of 25 Van Ashe Drive Extension
•
SECTION 2 - BASIC SERVICES OF GARVER
2.1 General
•
2.1.1 Perform professional design services in connection with the Project as hereinafter
stated, which shall include normal civil engineering services, surveying services, and
support incidental thereto.
2.1.1.1 The Scope of Services to be furnished by GARVER during the 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 GARVER during the Bidding 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 GARVER during the Construction Phase is
included in Section 2.4 hereafter and will be negotiated in full and added by an
amendment to this agreement. Additional scope of services for the Construction
Phase will be described in Appendix B.
2.1.2 Execution of this agreement will authorize the Engineer to proceed with the services as
described herein.
2.2 Design Services
2.2.1 GARVER will perform engineering, surveying and related services in order to prepare
for and incorporate 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.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
2 of 25 Van Ashe Drive Extension
• •
2.2.1.1 Bid Documents shall be based on the City of Fayetteville's standard Contract
Documents and shall incorporate CITY OF FAYETTEVILLE's standard general
conditions and forms. Technical Specifications will be Garver Standard Roadway
Specifications similar to previous jobs completed for the City of Fayetteville. Text
documents shall be provided to CITY OF FAYETTEVILLE in Microsoft°" Word
version 2000 or later software. Contract drawings shall be prepared using Garver
standard borders, sheet sizes, title blocks and CADD standards. GARVER may use
their normal software for the preparation of drawings but the final product shall be
provided to CITY OF FAYETTEVILLE in Autodesk AutoCAD version 2000 or
later.
2.2.1.2 Develop and include in Appendix A of this Agreement for approval by CITY OF
FAYETTEVILLE, a project design schedule in which GARVER shall include, in an
acceptable level of detail, the steps and milestone dates to be undertaken by
GARVER in the completion of this final design. This Schedule shall include
reasonable allowances for review and approval times required by CITY OF
FAYETTEVILLE, performance of services by CITY OF FAYETTEVILLE's
consultants, and review and approval times required by public authorities having
jurisdiction over the Project. This schedule shall be equitably adjusted as the Project
progresses, allowing for changes in scope, character or size of the Project requested
by CITY OF FAYETTEVILLE, or for delays or other causes beyond GARVER's
reasonable control.
2.2.1.2.1 The progress design schedule shall consist of a tabular list of milestones and
calendar days for each phase of services.
2.2.1.3 When requested by the CITY OF FAYETTEVILLE's City Engineer, prepare for and
attend up to two City Council meetings to provide periodic updates on the progress of
the design.
2.2.1.4 The Engineer will coordinate and conduct a public meeting and request all local
utilities be present. The Engineer's exhibits for this public meetings will address the
City's Conceptual Design comments. The exhibits will include a current set of full-
sized Plans and foam display boards at a 1"=20' scale, utilizing aerial photographs
and property information.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
3 of 25 Van Ashe Drive Extension
• •
2.2.1.5 if the plans and specifications for the project require bids on alternates in addition to
a base bid, there shall be no more than three (3) alternates, and the alternates shall be
developed and described in accordance with Title 22, Article 9-203 of the Arkansas
Code.
2.2.2 Prepare technical criteria, written descriptions, design data, and applications necessary
for filing applications for permits from or approvals of the following applicable
governmental authorities having jurisdiction to review or approve the final design of
the Project and assist in securing approvals. Actual Filing and Permit Fees will be paid
by the CITY OF FAYETTEVILLE. Assist CITY OF FAYETTEVILLE in
consultations with appropriate authorities.
2.2.2.1 Coordinate the project with the U.S. Army Corps of Engineers (COE) as required for
a 404 Permit for the bridge.
2.2.2.2 Coordinate with the Arkansas Department of Health for water and sewer relocation
as required.
2.2.3 Advise CITY OF FAYETTEVILLE of adjustments in excess of five percent of the cost
opinion for the Project caused by changes in scope, design requirements, or
construction costs and fumish a revised cost opinion for the Project based on the final
Bid Documents.
2 2 4 Advise CITY OF FAYETTEVILLE of final Opinion of Probable Project Costs,
including, but not limited to, construction, inspection, testing, and one-year
performance evaluation.
2.2.5 Furnish CITY OF FAYETTEVILLE
h 5 copies of the final Bid Documents.
2.2.6 Determine land and easement requirements and provide consultation and assistance on
property procurement as related to professional engineering services being performed.
2.2.7 Provide appropriate professional interpretations of data, geotechnical investigations,
core borings, probings and subsurface explorations, hydrographic surveys, laboratory
tests, and inspections of samples, materials and equipment obtained through
subcontract services for authorized Project services including property, boundary,
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
4 of 25 Van Ashe Drive Extension
easement, right-of-way, topographic, and utility surveys; noting zoning and deed
restrictions.
2.2.7.1 Fully disclose all subcontract agreements including the name and address of the
subconsultant, the scope of services to be provided, and the value of the subcontract
agreement.
2.2.7.2 Incorporate into all subcontract agreements for planning and design engineering
services the applicable milestone dates from the performance schedule contained in
Appendix A.
2.2.8 Design shall be reviewed by CITY OF FAYETTEVILLE, or such parties as CITY OF
FAYETTEVILLE shall designate, at the applicable completion levels outlined in
Appendix A.
2.3 Bidding Phase
2.3.1 Arrange for bidding notices to be sent to contractors publishing services and direct
mailing to contractors of record. Notices shall comply with requirements of CITY OF
FAYETTEVILLE. The legal notice to be placed in legal notices section 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.
2.3.2 Prepare addenda for drawings and Bid Documents as required and submit to CITY OF
FAYETTEVILLE in timely manner such that addenda can be issued by GARVER in
accordance with Construction Contract General Conditions.
2.3.3 Secure updated state and federal wage rate decisions and incorporate into the Bid
Documents. Update wage rate decision by addendum if necessary.
2.3.4 Assist CITY OF FAYETTEVILLE by issuing and tracking Bid Documents, addenda
and communications during bidding and maintain list of plan holders. Print and
distribute copies of plans and specifications for all prospective bidders and plan rooms.
Collect from prospective bidders an appropriate non-refundable fee to offset cost of
reproducing and distributing Bidding Documents.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
5 of 25 Van Ashe Drive Extension
• •
2.3.4.1 GARVER shall organize, attend, convene and conduct a Pre -Bid Conference to
explain the project requirements and receive questions from prospective bidders. The
CITY OF FAYETTEVILLE shall be invited to attend. GARVER shall consider the
questions received and issue necessary clarifications and changes to the Bid
Documents through the use of addenda.
2.3.5 Assist CITY OF FAYETTEVILLE in obtaining and evaluating bids and preparing
construction contracts.
2.3.6 Consult with and advise CITY OF FAYETTEVILLE as to the acceptability of
subcontractors and other persons and organizations proposed by the prime construction
contractor(s), hereinafter called "Contractor(s)," for those portions of the work as to
which such acceptability is required by the Bid Documents.
2.3.7 Make recommendations regarding award of construction contracts.
2.3.8 Attend City Council meeting to recommend and/or provide support to the project.
Prepare and present a recommendation complete with such supporting information as
necessary for the bodies to make an informed decision on the action recommended.
2.4 Construction Phase
2.4.1 The scope of Construction Phase Services will be described in detail in Appendix B,
which will be added with a future amendment to this agreement.
SECTION 3 - ADDITIONAL SERVICES OF GARVER
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by GARVER, GARVER shall furnish or obtain from others Additional Services of the following
types that are not considered normal or customary Basic Services. The scope of Additional Services may
include:
3.1.1 Flood Plain/Floodway Map Revisions
Prepare applications and supporting documents for submission to FEMA for revising floodplain/floodway
maps.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
6 of 25 Van Ashe Drive Extension
•
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.
3.1.5 Miscellaneous Studies
Investigations involving detailed consideration of operations, maintenance, and overhead expenses, and
the preparation of rate schedules, earnings, and expense statements; feasibility studies; appraisals and
valuations; detailed quantity surveys of material, equipment, and labor; and audits or inventories required
in connection with construction performed by CITY OF FAYETTEVILLE.
3.1.6 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in any
litigation or other proceeding involving the Project.
3.1.7 Extra Services
3.1.7.1 Services not specifically defined heretofore that may be authorized by CITY OF
FAYETTEVILLE.
3.2 Contingent Additional Services
3.2.1 If services described under Contingent Additional Services in Paragraph 3.2 are
required due to circumstances beyond GARVER's control, GARVER shall notify
CITY OF 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 GARVER If CITY OF
FAYETTEVILLE indicates in writing that all or parts of such Contingent Additional
Services are not required, GARVER shall have no obligation to provide those services.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
7 of 25 Van Ashe Drive Extension
• •
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 GARVER:
4.1 Provide HEC -HMS Hydrologic and HEC -RAS Hydraulic models for GARVER's use.
4.2 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.3 Assist GARVER by placing at GARVER's disposal all available information pertinent to
the assignment including previous reports and any other data relative thereto.
4.4 Guarantee access to and make all provisions for GARVER to enter upon public and
private property as required for GARVER to perform his services under this Agreement.
4.5 Examine all studies, reports, sketches, cost opinions, Bid Documents, Drawings,
proposals, and other documents presented by GARVER and render in writing decisions
pertaining thereto.
4.6 Provide such professional legal, accounting, financial, and insurance counseling services
as may be required for the Project.
4.7 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.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
8 of 25 Van Ashe Drive Extension
• •
4.8 Give prompt written notice to GARVER whenever CITY OF FAYETTEVILLE observes
or otherwise becomes aware of any defect in the Project.
4.9 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. Unless otherwise described in the attached Scope of Work.
4.10 Pay for placement of legal notices and advertisements in newspapers or other
publications.
4.11 Furnish, or direct GARVER to provide, necessary Additional Services as stipulated in
Section 3 of this Agreement or other services as required.
4.12 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 GARVER's use in coordinating the Contract Drawings and
Specifications.
4.13 CITY OF FAYETTEVILLE and/or its representative will provide all available
environmental information and data related to Skull Creek and the CMN Business Park
development in a timely manner.
4.14 CITY OF FAYETTEVILLE and/or its representative will review all documents and
provide written comments to GARVER 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.
GARVER will proceed with providing the authorized services immediately upon receipt
of written authorization from CITY OF FAYETTEVILLE. Said authorization shall
include the scope of the services authorized and the time in which the services are to be
completed.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
9 of 25 Van Ashe Drive Extension
• •
SECTION 6 - PAYMENTS TO GARVER
6.1 Compensation
6.1.1 Design Surveys, Property Surveys, and Property Acquisition Documents
For the Survey Phase described herein, CITY OF FAYETTEVILLE shall pay GARVER the lump sum
amount of $29,100.
6.1.2 Traffic Studies and Signalization Design
For Traffic Studies and Signalization Design described herein, CITY OF FAYETTEVILLE shall pay
GARVER the lump sum amount of $18,200.
6.1.3 Geotechnical Services
For Geotechnical Services, CITY OF FAYETTEVILLE shall pay GARVER the lump sum amount of
$10,000.
6.1.4 Conceptual Design
For the Conceptual Design described herein, CITY OF FAYETTEVILLE shall pay GARVER the lump
sum amount of $52,500.
6.1.5 Substantially Complete Design
For the Substantially Complete Design described herein, CITY OF FAYETTEVILLE shall pay GARVER
the lump sum amount of $74,900.
6.1.6 Final Design
For the Final Design described herein, CITY OF FAYETTEVILLE shall pay GARVER the lump sum
amount of $35,100.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
10 of 25 Van Ashe Drive Extension
• •
6.1.7 Bidding Services
For the Bidding Services described herein, CITY OF FAYETTEVILLE shall pay GARVER the lump
sum amount of $5,400.
6.1.8 Construction Phase Services
For the Construction Phase, CITY OF FAYETTEVILLE shall pay GARVER an amount to be negotiated
at a later date.
6.1.9 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services", compensation to
GARVER shall be negotiated at the time Additional services are authorized.
6.2 Statements
Monthly statements for each calendar month shall be submitted to CITY OF FAYETTEVILLE or such
parties as CITY OF FAYETTEVILLE may designate for Design services consistent with GARVER's
normal billing schedule. Once established, the billing schedule shall be maintained throughout the
duration of the Project. Applications for payment shall be made in accordance with a format to be
developed by GARVER and approved by CITY OF FAYETTEVILLE. Statements will be based on
GARVER's estimated percent of services completed at the end of the preceding month.
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of GARVER's
statement is disputed by CITY OF FAYETTEVILLE, the undisputed portion shall be paid by CITY OF
FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE shall advise GARVER in writing of the
basis for any disputed portion of any statement. CITY OF FAYETTEVILLE will make reasonable effort
to pay invoices within 30 days of date the invoice is approved, however, payment within 30 days is not
guaranteed.
6.4 Final Payment
Upon satisfactory completion of the work performed under this Agreement, as a condition before final
payment under this Agreement, or as a termination settlement under this Agreement, GARVER shall
execute and deliver to CITY OF FAYETTEVILLE a release of all claims against CITY OF
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
II of 25 Van Ashe Drive Extension
• •
FAYETTEVILLE arising under or by virtue of this Agreement, except claims which are specifically
exempted by GARVER to be set forth therein. Unless otherwise provided in this Agreement or by State
law or otherwise expressly agreed to by the parties to this Agreement, final payment under this
Agreement or settlement upon termination of this Agreement shall not constitute a waiver of CITY OF
FAYETTEVILLE's claims against GARVER or his sureties under this Agreement or applicable
performance and payment bonds, if any. Final payment for each phase of services shall be made upon
CITY OF FAYETTEVILLE's approval and acceptance with the satisfactory completion of each phase for
the Project.
6.5 Fee Changes
Subject to the City Council approval, adjustment of the lump sum amount may be made should GARVER
establish and CITY OF FAYETTEVILLE agree that there has been or is to be a significant change in
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, unless noted herein, 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.
Any unused portion of the fee, not billable due to delays beyond the Engineer's control, will be
increased 6% annually with the first increase effective on or about May 1, 2006.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, GARVER will maintain (in United
States Dollars) the following minimum insurance coverages:
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
12 of 25 Van Ashe Drive Extension
•
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
GARVER will provide to CITY OF FAYETTEVILLE certificates as evidence of the specified insurance
within ten days of the date of this Agreement and upon each renewal of coverage.
7.1.2 Construction Contractors shall be required to provide (or CITY OF FAYETTEVILLE
may provide) Owner's Protective Liability Insurance naming CITY OF
FAYETTEVILLE as a Named Insured and GARVER as additional insureds, or, to
endorse CITY OF FAYETTEVILLE and GARVER ENGINEERS as additional
insureds on construction Contractor's liability insurance policies covering claims for
personal injuries and property damage. Construction Contractors shall be required to
provide certificates evidencing such insurance to CITY OF FAYETTEVILLE and
GARVER All contract insurance carriers shall be required to list GARVER and CITY
OF FAYETTEVILLE as certificate holders, furnishing copies of the contractor's
insurance certificate to each party.
7.1.3 CITY OF FAYETTEVILLE and GARVER waive all rights against each other and their
officers, directors, agents, or employees for damage covered by property insurance
during and after the completion of GARVER's services. A provision similar to this
shall be incorporated into all Construction Contracts entered into by CITY OF
FAYETTEVILLE, and all construction Contractors shall be required to provide
waivers of subrogation in favor of CITY OF FAYETTEVILLE and GARVER for
damage or liability covered by any construction Contractor's policy of insurance.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
13 of 25 Van Ashe Drive Extension
i •
7.2 Professional Responsibility
7.2.1 GARVER will exercise reasonable skill, care, and diligence in the performance of
GARVER's services and will carry out its responsibilities in accordance with
customarily accepted professional engineering practices. CITY OF FAYETTEVILLE
will promptly report to GARVER any defects or suspected defects in GARVER's
services of which CITY OF FAYETTEVILLE becomes aware, so that GARVER can
take measures to minimize the consequences of such a defect. CITY OF
FAYETTEVILLE and GARVER further agree to impose a similar notification
requirement on all construction contractors in the Bid Documents and shall require all
subcontracts at any level to contain a like requirement. CITY OF FAYETTEVILLE
retains all remedies to recover for its damages caused by any negligence of GARVER.
7.2.2 hi addition GARVER 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 GARVER's Commercial General Liability and Automobile Liability
Insurance policies as specified in Paragraph 7.1.1.
7.3 Cost Opinions and Projections
Cost opinions and projections prepared by GARVER relating to construction costs and schedules,
operation and maintenance costs, equipment characteristics and performance, and operating results are
based on GARVER's experience, qualifications, and judgment as a design professional. Since GARVER
has no control over weather, cost and availability of labor, material and equipment, labor productivity,
construction Contractors' procedures and methods, unavoidable delays, construction Contractors'
methods of determining prices, economic conditions, competitive bidding or market conditions, and other
factors affecting such cost opinions or projections, GARVER does not guarantee that actual rates, costs,
performance, schedules, and related items will not vary from cost opinions and projections prepared by
GARVER
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of GARVER's
services, with an appropriate change in compensation and schedule only after Fayetteville City Council
approval of such proposed changes and, upon execution of a mutually acceptable amendment or change
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
14 of 25 Van Ashe Drive Extension
• •
order signed by the Mayor of the CITY OF FAYETTEVILLE and the President or any Vice President of
GARVER.
7.5 Termination
7.5.1 This Agreement may be terminated in whole or in part in writing by either party in the
event of substantial failure by the other party to fulfill its obligations under this
Agreement through no fault of the terminating party, provided that no termination may
be effected unless the other party is given.
7.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
7.5.1.2 An opportunity for consultation with the terminating party prior to termination.
7.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that GARVER is given.
7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
7.5.2.2 An opportunity for consultation with the terminating party prior to termination.
7.5.3 If termination for default is effected by CITY OF FAYETTEVILLE, an equitable
adjustment in the price provided for in this Agreement shall be made, but
7.5.3.1 No amount shall be allowed for anticipated profit on unperformed services or other
work,
7.5.3.2 Any payment due to GARVER at the time of termination may be adjusted to cover
any additional costs to CITY OF FAYETTEVILLE because of GARVER's default.
7.5.4 If termination for default is effected by GARVER, 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 GARVER for services rendered and
expenses incurred prior to the termination, in addition to termination settlement costs
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
15 of 25 Van Ashe Drive Extension
reasonably incurred by GARVER relating to commitments which had become firm
prior to the termination.
7.5.5 Upon receipt of a termination action under Paragraphs 7.5.1 or 7.5.2 above, GARVER
shall:
7.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
7.5.5.2 Deliver or otherwise make available to CITY OF FAYETTEVILLE all data,
drawings, specifications, reports, estimates, summaries and such other information
and materials as may have been accumulated by GARVER in performing this
Agreement, whether completed or in process.
7.5.6 Upon termination under Paragraphs 7.5.1 or 7.5.2 above CITY OF FAYETTEVILLE
may take over the work and may award another party an agreement to complete the
work under this Agreement.
7.5.7 If, after termination for failure of GARVER to fulfill contractual obligations, it is
determined that GARVER had not failed to fulfill contractual obligations, the
termination shall be deemed to have been for the convenience of CITY OF
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 GARVER are suspended or delayed by CITY OF FAYETTEVILLE or by
other events beyond GARVER's reasonable control, GARVER shall be entitled to additional
compensation and time for reasonable costs incurred by GARVER in temporarily closing down or
delaying the Project.
7.7 Rights and Benefits
GARVER's services will be performed solely for the benefit of CITY OF FAYETTEVILLE and not for
the benefit of any other persons or entities.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
16 of 25 Van Ashe Drive Extension
• •
7.8 Dispute Resolution
7.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all
disputes between CITY OF FAYETTEVILLE and GARVER which arise from, or in
any way are related to, this Agreement, including, but not limited to the interpretation
of this Agreement, the enforcement of its terms, any acts, errors, or omissions of CITY
OF FAYETTEVILLE or GARVER in the performance of this Agreement, and disputes
concerning payment.
7.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first
negotiate. If timely Notice is given under Paragraph 7.8.3, 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 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 GARVER 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 GARVER shall confer in an effort to resolve the
dispute. If the dispute cannot be resolved at that level, then, upon written request of
either side, the matter shall be referred to the President of GARVER 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.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
17 of 25 Van Ashe Drive Extension
• •
7.9 CITY OF FAYETTEVILLE represents that it has sufficient funds or the means of
obtaining funds to remit payment to GARVER for services rendered by GARVER
7.10 Publications
Recognizing the importance of professional development on the part of GARVER's employees and the
importance of GARVER's public relations, GARVER may prepare publications, such as technical papers,
articles for periodicals, and press releases, pertaining to GARVER's services for the Project. Such
publications will be provided to CITY OF FAYETTEVILLE in draft form for CITY OF
FAYETTEVILLE's advance review. CITY OF FAYETTEVILLE shall review such drafts promptly and
provide CITY OF FAYETTEVILLE's comments to GARVER. CITY OF FAYETTEVILLE may require
deletion of proprietary data or confidential information from such publications, but otherwise CITY OF
FAYETTEVILLE will not unreasonably withhold approval. The cost of GARVER's activities pertaining
to any such publication shall be for GARVER'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 GARVER from
and against any and all loss where loss is caused or incurred or alleged to be caused or
incurred in whole or in part as a result of the negligence or other actionable fault of the
Contractors, or their employees, agents, Subcontractors, and Suppliers.
7.12 Computer Models
GARVER may use or modify GARVER's proprietary computer models in service of CITY OF
FAYETTEVILLE under this Agreement, or GARVER may develop computer models during GARVER's
service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or development by
GARVER does not constitute a license to CITY OF FAYETTEVILLE to use or modify GARVER's
computer models. Said proprietary computer models shall remain the sole property of the GARVER.
CITY OF FAYETTEVILLE and GARVER will enter into a separate license agreement if CITY OF
FAYETTEVILLE wishes to use GARVER'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
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
18 of 25 Van Ashe Drive Extension
• •
CITY OF FAYETTEVILLE. GARVER may retain reproduced copies of drawings and copies of other
documents.
Engineering documents, drawings, and specifications prepared by GARVER as part of the Services shall
become the property of CITY OF FAYETTEVILLE when GARVER has been compensated for all
services rendered, provided, however, that GARVER shall have the unrestricted right to their use.
GARVER shall, however, retain its rights in its standard drawings details, specifications, databases,
computer software, and other proprietary property. Rights to intellectual property developed, utilized, or
modified in the performance of the Services shall remain the property of GARVER.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. GARVER makes no warranty as to the compatibility of these files
with any other system or software. Because of the potential degradation of electronic medium over time,
in the event of a conflict between the sealed original drawings/hard copies and the electronic files, the
sealed drawings/hard copies will govem.
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:
City of Fayetteville: Attn: Ron Petrie, PE
113 West Mountain
Fayetteville, AR 72701
GARVER's address:
Garver Engineers; Attn: Brock Hoskins, PE
1088 East Millsap Road
Fayetteville, AR 72703
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and GARVER each binds himself and his successors, executors,
administrators, and assigns to the other party of this Agreement and to the successors, executors,
administrators, and assigns of such other party, in respect to all covenants of this Agreement; except as
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
19 of 25 Van Ashe Drive Extension
•
above, neither CITY OF FAYETTEVILLE nor GARVER 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 GARVER and CITY OF FAYETTEVILLE
relative to the Scope of Services herein. Since terms contained in purchase orders do not generally apply
to professional services, in the event CITY OF FAYETTEVILLE issues to GARVER a purchase order,
no preprinted terms thereon shall become a part of this Agreement. Said purchase order document,
whether or not signed by GARVER, shall be considered as a document for CITY OF FAYETTEVILLE's
internal management of its operations.
SECTION 8 - SPECIAL CONDITIONS
8.1 Additional Responsibilities of GARVER:
8.1.1 CITY OF FAYETTEVILLE's review, approval, or acceptance of design drawings,
specifications, reports and other services furnished hereunder shall not in any way
relieve GARVER of responsibility for the technical adequacy of the work. Neither
CITY OF FAYETTEVILLE's review, approval or acceptance of, nor payment for any
of the services shall 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 GARVER shall be and shall remain liable, in accordance with applicable law, for all
damages to CITY OF FAYETTEVILLE caused by GARVER's negligent performance
of any of the services furnished under this Agreement except for errors, omissions or
other deficiencies to the extent attributable to CITY OF FAYETTEVILLE or CITY OF
FAYETTEVILLE-furnished data.
8.1.3 GARVER's obligations under this clause are in addition to GARVER's other express
or implied assurances under this Agreement or State law and in no way diminish any
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
20 of 25 Van Ashe Drive Extension