HomeMy WebLinkAbout139-05 RESOLUTION• •
RESOLUTION NO. 139-05
A RESOLUTION APPROVING A CONTRACT WITH
McGOODWIN, WILLIAMS AND YATES, INC. IN THE AMOUNT
OF $93,800.00 TO PROVIDE PROFESSIONAL ENGINEERING,
SURVEYING, BIDDING AND CONSTRUCTION OBSERVATION
SERVICES FOR THE 24" WATERLINE REPLACEMENT PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of Fayetteville, Arkansas, hereby
approves a Contract with McGoodwin, Williams and Yates, Inc. in the amount of
$93,800.00 to provide Professional Engineering, Surveying, Bidding and
Construction Observation Services for the 24" Waterline Replacement Project. A
copy of the Contract, marked Exhibit "A" is attached hereto and made a part
hereof.
PASSED and APPROVED this 19(11 day of July, 2005.
APPROVE
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;FAY ETT EVILLE
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By:
By:
S
NDRA SMITH, City Clerk
AN COODY, Mayor
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
McGOODWIN, WILLIAMS AND YATES, INC.
THIS AGREEMENT is made as of Jt t, l..4 1 q , 20 05, by and between City of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and
McGoodwin, Williams and Yates, Inc. with offices located in Fayetteville, Arkansas (hereinafter called
MWY).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the planning, design, permitting, and construction of the City of Fayetteville Water and Sewer
Improvements, and in particular the 24 -Inch Water Main Replacement at Custer and Momingside (the
"Project"). Therefore, CITY OF FAYETTEVILLE and MWY in consideration of their mutual covenants
agree as follows:
MWY shall serve as CITY OF FAYEFIEVILLE'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 MWY'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 MWY 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 MWY.
1.2 Assignments may include services described hereafter as Basic Services or as Additional
Services of MWY.
1.3 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City Council
in advance of the change in scope, costs, fees, or delivery schedule.
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SECTION 2 - BASIC SERVICES OF MWY
2.1 General
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2.1.1 Perform professional design services in connection with the Project as hereinafter stated,
which shall include normal civil engineering services, sitework services, and support
incidental thereto.
2.1.1.1 The Scope of Services to be furnished by MWY during the Study and 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 fumished by MWY 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 MWY during the Construction Phase is included in
Section 2.4 hereafter and in Appendix A attached hereto and made part of this
2.1.2 Execution of this Agreement will authorize MWY to proceed with the services as described
herein.
2.2 Design Services
2.2.1 MWY will perform engineering, surveying, and related services in order to incorporate into
the Contract Documents detailed drawings to show the character and scope of the Work to be
performed by contractors on the Project (hereinafter called the "Contract Drawings"), and
Invitation to Bid, Instructions to Bidders, Bid Form, Agreement and Bond forms, General
Conditions, and Specifications (all of which, together with the Contract Drawings, are
hereinafter called the "Bid Documents") for review and approval by CITY OF
FAYETTEVILLE, its legal counsel, and other advisors as appropriate, and assist CITY OF
FAYETTEVILLE in the preparation of other related documents.
2.2.1.1 Bid documents shall be based on the CITY OF FAYETTEVILLE's standard contract
documents and shall incorporate CITY OF FAYETTEVILLE's standard general conditions
and forms. Text documents shall be provided to CITY OF FAYETTEVILLE in Microsoft°
Word version 97 software. Contract drawings shall be prepared using MWY standard
borders, sheet sizes, title blocks and CADD standards. MWY may use their normal software
Fy-332 Prime Agreement: MWY — City of Fayetteville 2 of 26 24" Water Line Replacement 06/28/05
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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 MWY shall include, in an acceptable
level of detail, the steps and milestone dates to be undertaken by MWY 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 MWY'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 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) altcmates, 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 Arkansas Department of Health (AHD)
2.2.2.2 Arkansas State Highway and Transportation Department
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 furnish a revised cost opinion for the Project based on the final Bid Documents.
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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 with five (5) copies of the final Bid Documents.
2.2.6 Detemiine land and casement requirements and provide consultation and assistance on
property procurement as related to professional engineering services being performed.
2.2.7 Provide appropriatc 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.
2.2.7.1 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 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 MWY 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.
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2.3.4 Assist CTTY OF FAYETTEVILLE by issuing and tracking Bid Documents, addenda and
communications during bidding and maintain list of plan holders. Print and distribute copies
of plans and specifications for all prospective bidders and plan rooms. Collect from
prospective bidders an appropriate non-refundable fee to offset cost of reproducing and
distributing Bidding Documents.
2.3.4.1 MWY shall organize, attend, convene, and conduct a Pre -Bid Conference, if required by
CITY OF FAYETTEVILLE, to explain the project requirements and receive questions from
prospective bidders. MWY 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 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 Construction Phase
2.4.1 General
By performing these services, MWY shall not have authority or responsibility to supervise,
direct, or control the Contractor's work or the Contractor's means, mcthods, technique,
sequences, or procedures of construction. MWY shall not have authority or responsibility for
safety precautions and programs incident to the Contractor's work or for any failure of the
Contractors to comply with laws, regulations, rules, ordinances, codes, or orders applicable to
the Contractor(s) furnishing and performing the work. Specific services to be performed by
MWY are as follows:
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2.4.2 Management
MWY's management functions required to complete services to be provided under this
Agreement shall include all project correspondence with the CrrY OF FAYETTEVILLE,
consultation and coordination with the CITY OF FAYETTEVILLE, supervision and
coordination of the services provided by MWY including scheduling and assignment of
personnel, invoicing, and continuous monitoring of the progress of the services.
2.4.3 Office Support Services During Construction
2.4.3.1 Receive the Contractor's insurance certificates and forward to CITY OF FAYETTEVILLE for
review and acceptance by the CITY OF FAYEFIEVILLE's legal counsel.
2.4.3.2 Review and comment to CITY OF FAYETTEVILLE on the Contractor's initial and updated
construction schedule(s) if requested by CITY OF FAYETTEVILLE. MWY's review shall be
for general conformity to the provisions of the Contract Documents, to determine if the
Contractor's construction schedule and activity sequence include the completion dates, and
construction sequencing for any special conditions. MWY's review shall not include an
analysis of Contractor's approach, means and methods of construction for performing the
work specified in the Contract Documents.
2.4.3.3 Review and comment to CITY OF FAYETTEVILLE on the Contractor's initial schedule of
values and schedule of estimated monthly payments.
2.4.3.4 Review guarantees, bonds, and certificates of inspection, and tests and approvals which are to
be assembled by the Contractor(s) in accordance with the construction Contract Documents,
and transmit them to CITY OF FAYETTEVILLE. MWY's review is not a legal review to
determine if the Contractor's guarantees and bonds comply with all applicable requirements of
the Contract Documents.
2.4.3.5 Review drawings and other data submitted by the Contractor as required by the construction
Contract Documents. MWY's review shall be for general conformity to the construction
Contract Documents and shall not relieve the Contractor of any of his contractual
responsibilities. Such reviews shall not extend to means, methods, techniques, sequences, or
procedures of construction, or to safety precautions and programs incident hereto.
2.4.3.6 Interpret construction Contract Documents when requested.
Fy-332 Prime Agreement: MWY — City of Fayetteville 6 of 26 24" Water Line Replacement 06/28/05
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2.4.3.7 Review Contractor's applications for payment and supporting data, determine the amounts
owed to Contractor, and recommend to the CrrY OF FAYETTEVILLE, in writing,
concurrence of all payments to Contractor in accordance with the Contract Documents.
M WY's review shall be for the purpose of making a full independent mathematical check of
the Contractor's payment request.
2.4.3.8 Prepare routine Change Orders as required and submit to CITY OF FAYETTEVILLE.
Review CITY OF FAYETTEVILLE or Contractor documentation and prepare any additional
documentation required to administer the processing of change order, including applications
for extension of construction time. Provide opinion to the CITY OF FAYETTEVILLE of the
performance by the parties thereto, and make recommendations to CITY OF
FAYETTEVILLE on claims of CITY OF FAYETTEVILLE and Contractor(s) relating to the
execution and progress of the Work and other matters and questions related thereto; but MWY
shall not be liable for the results of any such interpretations, opinions, recommendations, or
decisions rendered by MWY in good faith.
If required, evaluate the cost and scheduling aspects of all change orders and, where necessary,
negotiate with the Contractor to obtain a fair price for the work. Said negotiation shall be
subject to the approval of CITY OF FAYETTEVILLE. Services related to unusually complex
or unusually numerous claims are considered an Additional Service.
2.4.3.9 Provide monthly progress reports to CITY OF FAYETTEVILLE.
2.4.3.10 Review and make recommendations regarding "or equal" submittals in accordance with
Construction Contract General Conditions.
2.4.3.11 Provide to the CITY OF FAYETTEVILLE, in a format acceptable to the CITY OF
FAYETTEVILLE, such progress reports; pay applications; project summaries; and other data
as may be required, for posting by others on a project web site to allow the public to monitor
and review the activities; materials; and financial status of the project. Update the data
supplied to the CITY OF FAYETTEVILLE when requested.
2.4.4 Field Support Services During Construction
2.4.4.1 Conduct the preconstruction conference. MWY shall prepare an agenda for the conference, and
prepare and distribute minutes. The preconstruction conference will include a discussion of the
Contractor's tentative schedule, procedures for transmittal and review of the Contractor's
submittals, processing payment applications, critical construction sequencing, change orders,
record documents, and the Contractor's responsibilities for safety and first aid.
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2.4.4.2 Conduct a monthly progress meeting with Contractor, if requested by CITY OF
FAYETTEVILLE, and prepare and distribute minutes of the meeting. While on-sitc, observe
progress of the work, and consult with CITY OF FAYETTEVILLE and the Contractor
concerning problems and/or progress of the construction.
2.4.4.3 A professional engineer will make periodic site visits. These site visits will be at intervals
appropriate to the stages of construction to consult with and advise the Resident Project
Representative, observe the progress and quality of the executed Work, and to determine, in
general, if the Project is proceeding in accordance with the Contract Documents.
2.4.4.4 Investigate any unforeseen subsurface conditions or unforeseen underground facilities that may
be encountered in accordance with Construction Contract General Conditions. Submit written
conclusions to CITY OF FAYEI'I'EVILLE.
2.4.4.5 Investigate claims of CITY OF FAYETTEVILLE and the Contractor relating to the
acceptability of the work or the interpretation of the requirements of the construction Contract
Documents. Submit written conclusions to CITY OF FAYETTEVILLE.
2.4.4.6 Conduct a Substantial Completion inspection of the construction work and prepare a punch -list
of those items to be completed or corrected before final completion of the project. Submit
written results of the inspection to CITY OF FAYETTEVILLE and the Contractor.
2.4.4.7 Conduct a final inspection to determine if the construction is completed. MWY shall submit
written results to CITY OF FAYETTEVILLE and provide written recommendations
concerning final payment to CITY OF FAYETTEVILLE, including a list of items, if any, to be
completed prior to making such payment.
SECTION 3 - ADDITIONAL SERVICES OF MWY
3.1 General
3.1.1 If authorizcd in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and
agreed to in writing by MWY, MWY shall furnish or obtain from others Additional Services
of the following types that arc not considered normal or customary Basic Services. The
scope of Additional Services may include:
3.1.1.1 In securing necessary interest in lands and rights-of-way, including property descriptions,
performing boundary surveys, casement preparation, and assistance in negotiations.
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3.1.2 Financial Consultation
3.1.2.1 Consult with CITY OF FAYE11EVILLE'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
3.1.3.1 Provide Contract and Project administration to the degree authorized by CITY OF
FAYEITEV ILLE.
3.1.4 Furnishing renderings or models of the Project for CITY OF FAYEFIEVILLE's use.
3.1.5 Miscellaneous Studies
3.1.5.1 Investigations involving detailed consideration of operations, maintenance, and overhead
expenses, and the preparation of rate schedules, camings, 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 MWY's control, MWY 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 arc not required, CITY OF FAYETTEVILLE shall give prompt written
notice to MWY. If CITY OF FAYETTEVILLE indicates in writing that all or parts of such
Contingent Additional Services are not required, MWY shall have no obligation to provide
those services.
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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 MWY:
4.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.2 Assist MWY by placing at MWY'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 MWY to enter upon public and private
property as required for MWY to perform his services under this Agreement.
4.4 Examine all studies, rcpons, skctchcs, cost opinions, Bid Documents, Drawings, proposals,
and other documents presented by MWY 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 MWY whenever CITY OF FAYETTEVILLE observes or
otherwise becomes aware of any defect in the Project.
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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 MWY 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 MWY'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 commcnts to MWY 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. MWY 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. The project
design time schedule is described in detail in Appendix A.
SECTION 6 - PAYMENTS TO MWY
6.1 Compensation
6.1.1 Design Phase Services
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A. Preliminary Engineering Report (including Topographical Survey)
For the Scope of Services during the Preliminary Engineering Report Phase described
herein, CITY OF FAYETTEVILLE shall pay MWY the lump sum amount of Twenty
Thousand Five Hundred United States Dollars (US $20,500.00).
B. Design and Preparation of Construction Plans and Specifications
For the Scope of Services during the Design Phase described herein for the design and
preparation of construction plans and specifications, CITY OF FAYETTEVILLE shall
pay MWY the lump sum amount of Twenty -Five Thousand Five Hundred United States
Dollars (US $25,500.00).
6.1.1.1 Subject to the City Council approval, adjustment of the lump sum amount may be made
should MWY 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 scopc, cost, fces, 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 MWY'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 MWY and approved
by CITY OF FAYETTEVILLE. Statements will be made on MWY's estimated percent
completed at the end of the preceding month.
6.1.2 Bidding Phase Services
For the Scope of Services during the Bidding Phase described herein, CITY OF
FAYETTEVILLE shall pay MWY the lump sum amount of Seven Thousand Eight Hundred
United States Dollars (US $7,800.00), payable in one installment, due upon receipt of bids
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6.1.2.1 Subject to prior City Council approval, adjustment of the lump sum amount may be made
should MWY establish and CITY OF FAYETTEVILLE agree that there has been or is to be
a significant change in scope, complexity or character of the services to be performed; or if
CITY OF FAYETTEVILLE decides to shorten the duration of work from the time period
specified in the Agreement for completion of work and such modification warrants such
adjustment.
6.1.2.2 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such panics as CITY OF FAYETTEVILLE may designate for Bidding
Phase services consistent with MWY'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 MWY and approved
by CITY OF FAYETTEVILLE.
6.1.3 Construction Phase Services
6.1.3.1 For the Scope of Services during the Construction Phase described herein, CITY OF
FAYETTEVILLE shall pay MWY the sum not to exceed Forty Thousand United States
Dollars (US S40,000.00), unless amended in accordance with Paragraph 6.1.5.
6.1.4 The CITY OF FAYETTEVILLE agrees that MWY's not -to -exceed upper limit for this
Agreement is based on the durations indicated in Appendix A, and if the construction period
or operation period is extended that MWY shall be entitled to additional compensation.
6.1.4.1 Hourly billing rates plus reimbursable direct expenses shall be used as the basis for
determining payment to MWY for the costs incurred by MWY while providing the services
described in this Amendment No. 1. Costs include but not limited to the salaries and benefits
paid to employees engaged directly in providing the services and profit. The current hourly
billing rates arc included as Appendix B to this Amendment. Rates will be adjusted each
January 1.
6.1.4.2 The following direct expenses arc considered reimbursable and are included in the not -to -
exceed amount.
6.1.4.2.1 For outside expenses incurred by MWY, such as authorized travel and subsistence,
commercial services, courier deliveries, and incidental expenses, the cost to MWY plus
5 percent.
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6.1.4.2.2 Subcontract costs times 1.05.
6.1.4.3 The following direct expenses are also considered reimbursable and are not a part of the not -
to -exceed amount.
6.1.4.3.1 Charges of special consultants requested by CITY OF FAYETTEVILLE.
6.1.4.3.2 Special insurance coserage required by CITY OF FAYETTEVILLE.
6.1.4.3.3 Local taxes or fees applicable to the engineering work or payments therefor.
6.1.4.3.4 Cost of acquiring any other materials or services specifically for and applicable to only this
project.
6.1.4.4 It is understood and agreed that MWY shall keep records of costs and expenses on the basis
of generally accepted accounting practice, and records shall be available for inspection at
reasonable times.
6.1.5 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services," compensation to
MWY 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. Statements will be based on MWY'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 MWY'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 MWY 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.
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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, MWY 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 MWY 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 MWY 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, MWY will maintain (in United States
Dollars) the following minimum insurance coverages:
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
S1,000,000 Combined Single Limit
Professional Liability Insurance $1,000,000 Each Claim
MWY 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 Owner's Protective Liability Insurance
naming CITY OF FAYETTEVILLE as a Named Insured and MWY as additional insured, or,
to endorse CITY OF FAYETTEVILLE and MWY 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 MWY. All contract insurance carriers shall be
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required to list CITY OF FAYETTEVILLE and MWY as certificate holders, furnishing
copies of the Contractor's insurance certificate to each party
7.1.3 CITY OF FAYETTEVILLE and MWY 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 MWY'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 MWY for damage or liability
covered by any construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 MWY will exercise reasonable skill, cart, and diligence in the performance of MWY's
services and will carry out its responsibilities in accordance with customarily accepted
professional engineering practices. CITY OF FAYETTEVILLE will promptly report to
MWY any defects or suspected defects in MWY's services of which CITY OF
FAYETTEVILLE becomes aware, so that MWY can take measures to minimize the
consequences of such a defect. CITY OF FAYETTEVILLE and MWY further agree to
impost 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 rctains all remedies to recover for its damages caused by any
negligence of MWY.
7.2.2 In addition MWY 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 MWY'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 MWY relating to construction costs and schedules, operation
and maintenance costs, equipment characteristics and performance, and operating results are based on
MWY's experience, qualifications, and judgment as a design professional. Since MWY 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
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determining prices, economic conditions, competitive bidding or market conditions, and other factors
affecting such cost opinions or projections, MWY does not guarantee that actual rates, costs,
performance, schedules, and related items will not vary from cost opinions and projections prepared by
MWY.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of MWY'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
MWY.
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 MWY 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.
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7.5.3.2 Any payment due to MWY at the time of termination may be adjusted to cover any additional
costs to CITY OF FAYETTEVILLE because of MWY's default.
7.5.4 If termination for default is effected by MWY, 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 MWY for services rendered and expenses incurred prior to the termination, in
addition to termination settlement costs reasonably incurrcd by MWY 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, MWY 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 MWY 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 MWY to fulfill contractual obligations, it is determined that
MWY 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 MWY are suspended or delayed by CITY OF FAYETTEVILLE or by other
events beyond MWY's reasonable control, MWY shall be entitled to additional compensation and time
for reasonable costs incurred by MWY in temporarily closing down or delaying the Project.
7.7 Rights and Benefits
MWY's services will be performed solely for the benefit of CITY OF FAYETTEVILLE and not for the
benefit of any other persons or entities.
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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 FAYE1 I'EV H LE and MWY 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
MWY in the performance of this Agreement, and disputes conceming payment.
7.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 7.8.3, but an action is initiated prior to exhaustion
of these procedures, such action shall be stayed, upon application by either party to a court of
proper jurisdiction, until the procedures in Paragraphs 7.8.3 and 7.8.4 have been complied
with.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising 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 othcr 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 MWY 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 MWY 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 MWY 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 MWY for services rendered by MWY.
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