HomeMy WebLinkAbout13-05 RESOLUTION•
RESOLUTION NO. 1 3- 0 5
A RESOLUTION APPROVING A CONTRACT WITH
McCLELLAND CONSULTING ENGINEERS, INC. IN AN
AMOUNT NOT TO EXCEED $22,800.00 FOR SURVEY AND
PRELIMINARY DESIGN SERVICES FOR WATER AND SEWER
RELOCATION FOR HIGHWAY IMPROVEMENTS TO
RAZORBACK ROAD.
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 with McClelland Consulting Engineers, Inc. in an
amount not to exceed $22,800.00 for survey and preliminary design services for
water and sewer relocation for highway improvements to Razorback Road. A
copy of the contract, marked Exhibit "A" is attached hereto, and made a part
hereof.
PASSED and APPROVED this 18th day of January 2005.
SONDRA SMITH, City Clerk
APPROVED:
By:
DAN COODY, May
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
MCCLELLAND CONSULTING ENGINEERS, INC.
FAYETTEVILLE, ARKANSAS
THIS AGREEMENT is made as of clamant 1S/ , 204, -by and between City of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and
McClelland Consulting Engineers, Inc. with offices located in Fayetteville, Arkansas (hereinafter called
McClelland).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the planning, design, permitting, construction, operation, maintenance, management, and financing
of the Fayetteville Highway 112 (Razorback Road) Water and Sewer Main Relocation Project and in
particular, relocation of water and sewer mains beginning at the intersection of Highway 112 and 15th
Street, proceeding north along Highway 112 to the intersection of Highway 112 and 6th Street, said work
to correspond to the scope of highway improvements being planned by the Arkansas Highway and
Transportation Department, Job No. 040399 (The "Project"). Therefore, CITY OF FAYETTEVILLE and
McClelland in consideration of their mutual covenants agree as follows:
McClelland 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 McClelland'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 McClelland 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 McClelland.
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1.2 Assignments may include services described hereafter as Basic Services or as Additional
Services of McClelland.
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.
SECTION 2 - BASIC SERVICES OF MCCLELLAND
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 McClelland during the Preliminary 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 McClelland during the Final Design Phase, if
any, will be finalized and contained in an amendment to this Agreement after Preliminary
Design is completed.
2.1.1.3 The Scope of Services to be furnished by McClelland during the Bidding Phase, if any,
will be finalized and contained in an amendment to this Agreement after Preliminary
Design is completed.
2.1.1.4 The Scope of Services to be furnished by McClelland during the Construction Phase, if
any, will be finalized and contained in an amendment to this Agreement after Preliminary
Design is completed.
2.1.1.5 The preliminary Scope of Services to be furnished by McClelland for Resident Services
during Construction, if any, will be finalized and contained in an amendment to this
Agreement after Preliminary Design is completed.
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2.2 Preliminary Design Phase
2.2.1 The Preliminary Design Phase will consist of an engineering feasibility study on the water
line relocation strategy for the Project, the evaluation of alternatives, the development of a
comprehensive project cost estimate, the establishment of financial responsibilities for utility
relocation (CITY OF FAYETTEVILLE and/or AHTD), the creation of a project schedule,
the correlation of water and sewer preliminary plans with the CITY OF FAYETTEVILLE's
master utility plans, the acquisition of approvals from CITY OF FAYETTEVLLE for the
preliminary design, the completion of detailed surveys for engineering design, the
development of right-of-way procurement needs, leading up to the commencement of final
design for the Project.
2.3 Final Design Phase
2.3.1 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.
2.3.1.1 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. Bid documents shall include required forms for the
Arkansas Highway and Transportation Department. 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. McClelland 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 2002.
2.3.1.2 Develop and include in Appendix A of this Agreement for approval by CITY OF
FAYETTEVILLE, a project preliminary design schedule in which McClelland shall
include, in an acceptable level of detail, the steps and milestone dates to be undertaken by
McClelland in the completion of this preliminary design. This Schedule shall include
reasonable allowances for review and approval times required by CITY OF
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FAYETTEVILLE, 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 McClelland's
reasonable control. Nonconformance with this schedule by McClelland and its
subconsultants may result in the assessment of damages payable by McClelland to the
CITY OF FAYETTEVILLE for costs and damages incurred. The maximum cost liability
of McClelland shall be limited to the total gross amount payable to or through the
Consultant authorized under this agreement, including amendments thereto.
2.3.1.3 When requested by the CITY OF FAYETTEVILLE's Water and Wastewater Director,
prepare for and attend up to two City Council meetings to provide periodic updates on the
progress of the design.
2.3.1.4 If the plans and specifications for the project require bids on alternates in addition to a
base bid, there shall be no more than three (3) alternates, and the alternates shall be
developed and described in accordance with Title 22, Article 9-203 of the Arkansas
Code.
2.3.2 Prepare technical criteria, written descriptions, design data, and applications necessary for
filing applications for permits from or approvals of the following applicable governmental
authorities having jurisdiction to review or approve the final design of the Project and assist
in securing approvals. Approval letters and permits shall be furnished to the Arkansas
Highway and Transportation Department, including the written approval from the Arkansas
Department of Health. Actual Filing and Permit Fees will be paid by the CITY OF
FAYETTEVILLE. Assist CITY OF FAYETTEVILLE in consultations with appropriate
authorities.
2.3.2.1 Arkansas Highway and Transportation Department (AHTD)
2.3.2.2 Arkansas Department of Health (ADH)
2.3.3 Advise CITY OF FAYETTEVILLE of adjustments in excess of five percent of the cost
opinion for the Project caused by changes in scope, design requirements, or construction costs
and furnish a revised cost opinion for the Project based on the final Bid Documents.
2.3.4 Advise CITY OF FAYETTEVILLE of final Opinion of Probable Project Costs, including,
but not limited to, construction, inspection, testing and close out.
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2.3.5 Furnish CITY OF FAYETTEVILLE with 5 copies of the final Bid Documents.
2.3.6 Determine land and easement requirements and provide consultation and assistance on
property procurement and easement preparation as related to professional engineering
services being performed.
2.3.7 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, easement, right-of-way,
topographic, and utility surveys; noting zoning and deed restrictions.
2.3.8 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
2.4 Bidding Phase
2.4.1 McClelland will follow City of Fayetteville's bidding protocol for capital improvement
projects and be coordinated with the Arkansas Highway and Transportation Department.
2.4.2 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.
2.4.3 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 McClelland in
accordance with Construction Contract General Conditions. All bidding protocols shall
conform to statutory requirements with all addenda being approved by CITY OF
FAYETTEVILLE prior to issuance.
2.4.4 Secure updated applicable wage rate decisions and incorporate into the Bid Documents.
Update wage rate decision by addendum if necessary.
2.4.4.1 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
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from prospective bidders an appropriate non-refundable fee to offset cost of reproducing
and distributing Bidding Documents.
2.4.5 Assist CITY OF FAYETTEVILLE in obtaining and evaluating bids and preparing
construction contracts. McClelland shall prepare and submit bid certification documents to
CITY OF FAYETTEVILLE for review.
2.4.6 Consult with and advise CITY OF FAYETTEVILLE as to the acceptability of subcontractors
and other persons and organizations proposed by the prime construction contractor(s),
hereinafter called "Contractor(s)," for those portions of the work as to which such
acceptability is required by the Bid Documents.
2.4.7 Make recommendations regarding award of construction contracts.
2.4.8 Attend Water and Sewer Committee meeting and the ensuing City Council meeting to
recommend action by the respective bodies. Prepare and present a recommendation complete
with such supporting information as necessary for the bodies to make an informed decision
on the action recommended.
2.4.9 Develop and include in Appendix B of this Agreement, a bidding services schedule in which
McClelland shall include, in an acceptable level of detail, the steps and milestone dates to be
undertaken by McClelland in the completion of the bidding services. The bidding services
schedule shall consist of a bar chart schedule depicting the duration of the bidding period of
each sub -project and the discrete milestone activities which make up the sub -projects.
Separate line items and durations may be shown for costs that apply to the Project as a whole,
including, but not limited to, Project Management and Administration, and Insurance.
McClelland shall assign to each schedule activity of the bidding services schedule a
corresponding cost value which shall include a monthly allocation for labor, expenses,
overhead, and profit. The sum of all cost values assigned shall equal the Lump Sum Amount
shown in Section 6.1.2. of this Agreement.
2.4.10 See Attachment A for additional services or clarification of services to be provided by
McClelland.
2.5 Construction Phase
2.5.1 The scope of Construction Phase Services, if any, will be negotiated following completion of
Design Phase Services.
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2.6 Post -Construction Phase
2.6.1 The scope of Post -Construction Phase Services, if any, will be negotiated following
completion of Design Phase Services.
2.7 Resident Services During Construction
2.7.1 The scope of Resident Services During Construction, if any, will be negotiated following
completion of Design Phase Services.
SECTION 3 - ADDITIONAL SERVICES OF MCCLELLAND
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by McClelland, McClelland shall furnish or obtain from others Additional Services of the
following types that are not considered normal or customary Basic Services. The scope of Additional
Services may include:
3.1.1 Grant and Loan Assistance
Prepare applications and supporting documents for governmental grants, loans, or advances.
3.1.2 Financial Consultation
Consult with CITY OF FAYETTEVILLE's fiscal agents and bond attorneys and provide such
engineering data as required for any bond prospectus or other financing requirements.
3.1.3 Administrative Assistance
Provide Contract and Project administration to the degree authorized by CITY OF FAYETTEVILLE.
3.1.4 Furnishing renderings or models of the Project for CITY OF FAYETTEVILLE's use.
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.
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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. I 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 McClelland's control, McClelland 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 McClelland. If CITY OF FAYETTEVILLE indicates in writing that
all or parts of such Contingent Additional Services are not required, McClelland 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
McClelland.
4.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.2 Assist McClelland by placing at McClelland'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 McClelland to enter upon public and private
property as required for McClelland to perform his services under this Agreement.
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4.4 Examine all studies, reports, sketches, cost opinions, Bid Documents, Drawings, proposals,
and other documents presented by McClelland and render in writing decisions pertaining
thereto.
4.5 Provide such professional legal, accounting, financial, and insurance counseling services as
may be required for the Project.
4.6 Designate in writing a person to act as CITY OF FAYETTEVILLE's representative with
respect to the services to be performed under this Agreement. Such person shall have
complete authority to transmit instructions, receive information, interpret and define CITY
OF FAYETTEVILLE's policies and decisions with respect to materials, equipment, elements
and systems to be used in the Project, and other matters pertinent to the services covered by
this Agreement.
4.7 Give prompt written notice to McClelland 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 Highway 112 Water and Sewer Main Relocation
Project.
4.10 Furnish, or direct McClelland to provide, necessary Additional Services as stipulated in
Section 3 of this Agreement or other services as required.
4.11 [f 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 McClelland'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 McClelland 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.
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5.2 The provisions of this Agreement have been agreed to in anticipation of the orderly progress
of the Project through completion of the services stated in the Agreement. McClelland will
proceed with providing the authorized services immediately upon receipt of written
authorization from CITY OF FAYETTEVILLE. Said authorization shall include the scope of
the services authorized and the time in which the services are to be completed.
SECTION 6 - PAYMENTS TO MCCLELLAND
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 twenty-two thousand eight hundred dollars ($22,800.00) as compensation
for the scope of work set forth in Attachment A. Engineer will be compensated based upon cost
reimbursement, plus profit, the current rates for cost reimbursement being attached to and made a part of
this agreement (Attachment B). The costs and basis for compensation include all preliminary design
costs, including labor, overhead, direct expenses, subcontracts and fees. The total contract amount
authorized for the preliminary design phase services is twenty-two thousand eight hundred dollars
($22,800.00).
6.1.1.1 Subject to the City Council approval, adjustment of the contract amount may be made
should McClelland 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 McClelland'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
McClelland 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 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
McClelland 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 McClelland's actual costs
incurred and justified by hours expended, hourly rates and other applicable costs in accordance with
Attachment B.
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6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of McClelland'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 McClelland 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, McClelland 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 McClelland 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 McClelland 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, McClelland will maintain (in United
States Dollars) the following minimum insurance coverages:
Type of Coverage
Workers' Compensation
Employers' Liability
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
Professional Liability Insurance
Limits of Liability
Statutory
$500,000 Each Accident
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
$1,000,000 Each Claim
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McClelland 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 McClelland as additional insureds, or, to endorse CITY OF
FAYETTEVILLE, and McClelland 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 McClelland. All contract insurance carriers shall be
required to list CITY OF FAYETTEVILLE as certificate holder, furnishing copies of the
contractor's insurance certificate to each party
7.1.3 CITY OF FAYETTEVILLE and McClelland 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 McClelland'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 McClelland for
damage or liability covered by any construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 McClelland will exercise reasonable skill, care, and diligence in the performance of
McClelland's services and will carry out its responsibilities in accordance with customarily
accepted professional engineering practices. CITY OF FAYETTEVILLE will promptly
report to McClelland any defects or suspected defects in McClelland's services of which
CITY OF FAYETTEVILLE becomes aware, so that McClelland can take measures to
minimize the consequences of such a defect. CITY OF FAYETTEVILLE and McClelland
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 McClelland.
7.2.2 In addition McClelland 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
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by McClelland'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 McClelland relating to construction costs and schedules,
operation and maintenance costs, equipment characteristics and performance, and operating results are
based on McClelland's experience, qualifications, and judgment as a design professional. Since
McClelland 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, McClelland does not guarantee
that actual rates, costs, performance, schedules, and related items will not vary from cost opinions and
projections prepared by McClelland.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
McClelland'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 of
McClelland.
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 McClelland 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 McClelland at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of McClelland's default.
7.5.4 If termination for default is effected by McClelland, 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 McClelland for services rendered and expenses incurred prior to
the termination, in addition to termination settlement costs reasonably incurred by
McClelland 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, McClelland 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 McClelland 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 McClelland to fulfill contractual obligations, it is
determined that McClelland had not failed to fulfill contractual obligations, the termination
shall be deemed to have been for the convenience of CITY OF FAYETTEVILLE. In such
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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 McClelland are suspended or delayed by CITY OF FAYETTEVILLE or by
other events beyond McClelland's reasonable control, McClelland shall be entitled to additional
compensation and time for reasonable costs incurred by McClelland in temporarily closing down or
delaying the Project.
7.7 Rights and Benefits
McClelland'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 McClelland 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
McClelland 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 McClelland 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
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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 McClelland 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 McClelland 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 McClelland for services rendered by McClelland.
7.10 Publications
Recognizing the importance of professional development on the part of McClelland's employees and the
importance of McClelland's public relations, McClelland may prepare publications, such as technical
papers, articles for periodicals, and press releases, pertaining to McClelland'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 McClelland. 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 McClelland's
activities pertaining to any such publication shall be for McClelland's account.
7.11 Indemnification
7.1 1.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE, and McClelland 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
McClelland may use or modify McClelland's proprietary computer models in service of CITY OF
FAYETTEVILLE under this Agreement, or McClelland may develop computer models during
McClelland's service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or
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development by McClelland does not constitute a license to CITY OF FAYETTEVILLE to use or modify
McClelland's computer models. Said proprietary computer models shall remain the sole property of the
McClelland. CITY OF FAYETTEVILLE and McClelland will enter into a separate license agreement if
CITY OF FAYETTEVILLE wishes to use McClelland'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. McClelland may retain reproduced copies of drawings and copies of other
documents.
Engineering documents, drawings, and specifications prepared by McClelland as part of the Services shall
become the property of CITY OF FAYETTEVILLE when McClelland has been compensated for all
Services rendered, provided, however, that McClelland shall have the unrestricted right to their use.
McClelland 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 McClelland.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. McClelland 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:
City of Fayetteville
113 W. Mountain
Fayetteville, AR 72701
McClelland's address:
McClelland Consulting Engineers, Inc.
P.O. Box 1229/1810 N. College
Fayetteville, AR 72702
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7.15 Successor and Assigns
CITY OF FAYETTEVILLE and McClelland 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 McClelland 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 McClelland 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 McClelland a purchase order,
no preprinted terms thereon shall become a part of this Agreement. Said purchase order document,
whether or not signed by McClelland, 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 McClelland:
8.1.1 CITY OF FAYETTEVILLE's or the Arkansas Highway and Transportation Department's
(AHTD's) review, approval, or acceptance of design drawings, specifications, reports and
other services furnished hereunder shall not in any way relieve McClelland of responsibility
for the technical adequacy of the work. Neither CITY OF FAYETTEVILLE's nor AHTD'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 McClelland shall be and shall remain liable, in accordance with applicable law, for all
damages to CITY OF FAYETTEVILLE caused by McClelland'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.
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