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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 O,c e.(" _oma 13 • - ;FAY ETT EVILLE •' %31,1411•2.0 ATTEST: %,»70N GO````, By: By: S NDRA SMITH, City Clerk AN COODY, Mayor • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville I of 26 24" Water Line Replacement 06/28/05 1 • • • SECTION 2 - BASIC SERVICES OF MWY 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, 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 • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 3 of 26 24" Water Line Replacement 06/28/05 • • 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. Fy-332 Prime Agreement: MWY — City of Faycneville 4 of 26 24" Water Line Replacement 0628/05 • • 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: Fy-332 Prime Agreement: MWY — City of Fayetteville 5 of 26 24" Water Linc Replacement 06/28/05 • 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 • • 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. Fy-332 Prime Agreement: MWY — City of Fayeneville 7 of 26 24" Water Line Replacement 06/28/05 • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 8 of 26 24" Water Line Replacement 06/28/05 • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 9 of 26 24" Water Line Replacement 06/28/05 • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 10 of 26 24" Water Line Replacement 06/28/05 • 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 Fy-332 Prime Agreement: MWY — City of Fayetteville 11 of 26 24" Water Line Replacement 06/28/05 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 Fy-332 Prime Agreement: MWY — City of Fayetteville 12 of 26 24" Water Linc Replacement 0628/05 • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 13 of 26 24" Water Line Replacement 06/28/05 • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 14 of 26 24" Water Line Replacement 06/28/05 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 Fy-332 Prime Agreement: MWY — City of Fayeneville 15 of 26 24" Water Line Replacement 06/28/05 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 Fy-332 Prime Agreement: MWY — City of Fayetteville 16 of 26 24" Water Line Replacement 06/28/05 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 17 of 26 24" Water Line Replacement 06/28/05 • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 18 of 26 24" Water Line Replacement 06/28/05 • • 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 19 of 26 24" Water Linc Replacement 06/28/05 I 7.10 Publications Recognizing the importance of professional development on the part of MWY's employees and the importance of MWY's public relations, MWY may prepare publications, such as technical papers, articles for periodicals, and press releases, pertaining to MWY'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 MWY. 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 MWY's activities pertaining to any such publication shall be for MWY'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 MWY 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 MWY may use or modify MWY's proprietary computer models in service of CITY OF FAYETTEVILLE under this Agreement, or MWY may develop computer models during MWY's service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or development by MWY does not constitute a license to CITY OF FAYETTEVILLE to use or modify MWY's computer models. Said proprietary computer models shall remain the sole property of MWY. CITY OF FAYETTEVILLE and MWY will enter into a separate license agreement if CITY OF FAYETTEVILLE wishes to use MWY'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, specifications, field notes, and data are and remain the property of CITY OF FAYETI'EVILLE. MWY may retain reproduced copies of drawings and copies of other documents. Fy-332 Prime Agreement: MWY — City of Fayetteville 20 of 26 24" Water Line Replacement 06/28/05 Engineering documents, drawings, and specifications prepared by MWY as part of the Services shall become the property of CITY OF FAYETTEVILLE when MWY has been compensated for all Services rendered, provided, however, that MWY shall have the unrestricted right to their use. MWY 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 MWY. Any files delivered in electronic medium may not work on systems and software different than those with which they were originally produced. MWY 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 scaled original drawings/hard copies and the electronic files, the scaled 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 ATI'N: Ron Petrie, P. E. 113 West Mountain Street Fayetteville, Arkansas 72701 MWY's address: McGoodwin, Williams and Yates, Inc. ATTN: Brad B. Hammond, P. E. 909 Rolling Hills Drive Fayetteville, Arkansas 72703 7.15 Successor and Assigns CITY OF FAYETTEVILLE and MWY 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 MWY shall assign, sublet, or transfer his interest in the Agreement without the written consent of the other. Fy-332 Prime Agreement: MWY — City of Fayetteville 21 of 26 24" Water Line Replacement 06/28/05 �� • 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 MWY 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 MWY a purchase order, no preprinted terms thereon shall become a part of this Agreement. Said purchase order document, whether or not signed by MWY, shall be considered as a document for CITY OF FAYEIIEVILLE's internal management of its operations. SECTION 8- SPECIAL CONDITION'S 8.1 Additional Responsibilities of MWY: 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 MWY of responsibility for the technical adequacy of the work. CITY OF FAYE' TEVILLE'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 MWY shall be and shall remain liable, in accordance with applicable law, for all damages to CITY OF FAYETTEVILLE caused by MWY'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 MWY's obligations under this clause are in addition to MWY's other express or implied assurances under this Agreement or State law and in no way diminish any other rights that CITY OF FAYETTEVILLE may have against MWY for faulty materials, equipment, or work. Fy-332 Prime Agreement: MWY — City of Fayetteville 22 of 26 24" Water Line Replacement 06/28/05 E 8.2 Remedies Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes and other matters in question between CITY OF FAYETTEVILLE and MWY arising out of or relating to this Agreement or the breach thereof will be decided in a court of competent jurisdiction within Arkansas. 8.3 Audit: Access to Records 8.3.1 MWY shall maintain books, records, documents and other evidence directly pertinent to performance on work under this Agreement in accordance with generally accepted accounting principles and practices consistently applied in effect on the date of execution of this Agreement. MWY shall also maintain the financial information and data used by MWY in the preparation of support of the cost submission required for any negotiated agreement or change order and send to CITY OF FAYETTEVILLE a copy of the cost summary submitted. The United States Environmental Protection Agency, the Comptroller General of the United States, the United States Department of Labor, CITY OF FAYETTEVILLE, the State or any of their authorized representatives shall have access to all such books, records, documents and other evidence for the purpose of inspection, audit and copying during normal business hours. MWY will provide proper facilities for such access and inspection. 8.3.2 Records under Paragraph 8.3.1 above, shall he maintained and made available during performance on assisted work under this Agreement and until three years from the date of final payment for the project. In addition, those records which relate to any controversy arising out of such performance, or to costs or items to which an audit exception has been taken, shall be maintained and made available until three years after the date of resolution of such appeal, litigation, claim or exception. 8.3.3 This right of access clause (with respect to financial records) applies to: 8.3.3.1 Negotiated prime agreements: 8.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting the price of any formally advertised, competitively awarded, fixed price agreement: 8.3.3.3 Agreements or purchase orders under any agreement other than a formally advertised, competitively awarded, fixed price agreement. However, this right of access does not apply Fy-332 Prime Agreement: MWY — City of.Faycttcville 23 of 26 24" Water Line Replacement 06/28/05 to a prime agreement, lower tier subagreement or purchase order awarded after effective price competition, except: 8.3.3.3.1 With respect to record pertaining directly to subagreement performance, excluding any financial records of MWY; 8.3.3.3.2 If there is any indication that fraud, gross abuse or corrupt practices may be involved; 8.3.3.3.3 If the subagreement is terminated for default or for convenience. 8.4 Covenant Against Contingent Fees MWY warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement of understanding for a commission, percentage, brokerage or continent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by MWY for the purpose of securing business. For breach or violation of this warranty, CITY OF FAYETTEVILLE shall have the right to annul this Agreement without liability or at its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. 8.5 Gratuities 8.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that MWY or any of MWY's agents or representatives, offered or gave gratuities (in the form of entertainment, gifts or otherwise) to any official, employee or agent of CITY OF FAYETTEVILLE in an attempt to secure an agreement or favorable treatment in awarding, amending or making any determinations related to the performance of this Agreement, CITY OF FAYETTEVILLE may, by written notice to MWY terminate this Agreement. CITY OF FAYETTEVILLE may also pursue other rights and remedies that the law or this Agreement provides. However, the existence of the facts on which CITY OF FAYETTEVILLE bases such finding shall be in issue and may be reviewed in proceedings under the Remedies clause of this Agreement. 8.5.2 In the event this Agreement is terminated as provided in Paragraph 8.5.1, CITY OF FAYETTEVILLE may pursue the same remedies against MWY as it could pursue in the event of a breach of the Agreement by MWY. As a penalty, in addition to any other damages to which it may be entitled by law, CITY OF FAYETTEVILLE may pursue exemplary damages in an amount (as determined by CITY OF FAYETTEVILLE) which shall be not Fy-332 Prime Agreement: MWY — City of Fayetteville 24 of 26 24" Water Line Replacement 06/28/05 less than three nor more than ten times the costs MWY incurs in providing any such gratuities to any such officer or employee. 8.6 Arkansas Freedom of Information Act City contracts and documents, including internal documents and documents of subcontractors and sub - consultants, prepared while performing City contractual work are subject to the Arkansas Freedom of Information Act (FOIA). If a Freedom of Information Act request is presented to the CITY OF FAYETTEVILLE, MWY will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25-19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 8.7 - Debarment and Suspension I certify that to the best of my knowledge and belief that the company that I represent and its principals: (a) Arc not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three year period preceding this proposal been convicted of or had a civil judgement rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default. Fy-332 Prime Agrccment: MWY — City of Fayetteville 25 of 26 24" Water Line Replacement 06/28/05 I understand that a false statement on this certification regarding debarment and suspension may be grounds for rejection of this proposal or termination of the award. In addition, under 18 USC Sec. 1001, a false statement may result in a fine of up to S10,000 or imprisonment for up to 5 years, or both. I further certify that I will obtain a similar certification for each subcontract awarded in excess of $25,000. DEBARMENT CERTIFICATION AUTHORIZED REPRESENTATIVE COMPANY SIGNA DA PRINTED NAME: P>RPt 4+ tMMONI≥s TITLE: PRESIDEIJi IN WPINESS WHEREOF, CITY OF FAYETTEVILLE, ARKANSAS by and through its Mayor, and MWY, by its authorized officer have made and executed this Agreement as of the day and year first above written. CITY O ;:'G\S Y O;c•: G� By: • ;FAYETTEVILLE; 3 ATTES' By: MCGOODW , WI LI S AND ATES, INC. By: Brad B. Hammond, P. E., President ATTrST 7 By: C. Ulmer, P. IiChief Operating Officer 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. END OF AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES Fy-332 Prime Agreement: MWY — City of Fayetteville 26 of 26 24" Water Line Replacement 06/28/05 CITY OF FAYETTEVILLE AGREEMENT FOR ENGINEERING SERVICES APPENDIX A - SCOPE OF SERVICES This is Appendix A, consisting of three pages, referred to in and pan of the Agreement For Professional Engineering Services between CITY OF FAYETTEVILLE, ARKANSAS and McGOODWIN, WILLIAMS, AND YATES, INC. dated Li lq , c00 5. Initial: CITY OF FAYETTEVILLE - McGOODWIN, WILLIAMS, AND YATES, INC. The following contains additional Scope of Services tasks A.1 General Scope The work covered by this agreement includes a preliminary engineering report followed by detailed design, preparation of construction drawings and specifications, and assistance during the project bid phase and construction phase for the recommended water line improvements. The scope of the project includes replacement of approximately 4,500 linear feet (LF) of existing 24 -inch waterline, including approximately 1,450 LF in the north -south easement west of and parallel to West Custer Street and the remainder along Morningside Drive and 15th Street. A.2 Specific Scope of Services MWY shall provide a suitable engineering staff to complete the necessary field surveys, to perform detailed design, to prepare plans and specifications, to provide needed services during the bid phase and the construction phase of the project, and to provide other services as may be directed by the CITY OF FAYETTEVILLE (Owner). The staff shall consist of engineers, engineering technicians, inspectors and other assistants as may be necessary to carry on the work in an efficient and expeditious manner. MWY will provide the following services: A.2.I Preliminary Engineering Report a. Perform topographical survey of affected areas. b. Develop design alternatives, including utilizing the existing hydraulic water model to investigate design scenarios. c. Develop Opinions of Probable Costs for alternatives. It is understood and agreed that this opinion will be prepared for planning and budgeting purposes only and that MWY makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. d. Evaluate alternatives. e. Develop recommendations. f. Provide report summarizing alternatives and recommendations. A.2.2 Detailed Design and Preparation of Construction Plans and Specifications a. Prepare final design for the project based on recommendations from the Preliminary Engineering Report. b. Prepare detailed construction specifications and drawings. Fy-332 MWY — City of Fayetteville Agreement 06!28/05 Appendix A - I Prepare an opinion of probable cost of the authorized construction. It is understood and agreed that this opinion will be prepared for planning and budgeting purposes only and that MWY makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. d. Submit, on behalf of the Owner, construction specifications, drawings and design criteria for approval to the Arkansas Department of Health and other agencies, if required. A.2.3 Bidding and Prcconstruction Services MWY will prepare and distribute advertisements for bids, communicate with bidders as required, provide technical interpretation of the plans and specifications, prepare addenda as required, attend and conduct the bid opening, tabulate bids, provide an engineering analysis of the bids received, review contractor references, make recommendations concerning award of the construction contract and assist in the preparation of contract documents. Bid tabulations and supporting documents will be prepared and submitted to the Owner. The scope of services includes advertising and bidding one project and does not include dividing construction contracts into multiple projects and/or bids. A.2.4 Construction Phase Services a. Furnish professional engineers to make visits to the site at appropriate intervals to observe the progress and quality of the executed work and to determine in general if the work is proceeding in accordance with the contract documents. In performing these services, MWY shall have no control over, nor responsibility for the Contractor's means, methods, sequence, techniques or procedures in performing the work, or for safety programs in connection with the work. These are solely the responsibilities of the Contractor, who is also responsible for complying with all health and safety precautions as required by any regulatory agencies. b. Furnish the services of other field personnel for on -the -site observation of construction and for the performance of required construction layout surveys when requested by the Owner. The authority and duties of such Project Representatives are limited to examining the material furnished and observing the work done and to reporting their findings to MWY. MWY will use the usual degree of care and prudent judgment in the selection of competent Project Representatives, and MWY will use diligence to see that the Project Representatives are on the job to perform their required duties. c. The required construction layout surveys will include the establishment of baselines for locating the work, with a suitable number of benchmarks for site elevation references as shown in the plans and specifications. d. Consult with and advise the Owner; issue all instructions to the Contractor requested by the Owner; and prepare routine change orders as required. e. Review submittals by the Contractor at the request of the Owner. This review is for the benefit of the Owner to ensure general conformance with the design concept of the project and general compliance by the Contractor with the information given in the contract documents. It does not relieve the Contractor of any responsibility such as dimensions to be confirmed and correlated at the job site, appropriate safety measures to protect workers and the public, or the necessity to construct a complete and workable facility in accordance with the contract documents. Fy-332 MWY — City of Fayetteville Agreement 06/28/05 Appendix A -2 Furnish to the Owner two copies of the record drawings for the project. A.3 Project Deliverables The following will be subrrtitted to the Owner, or others indicated, by MWY as part of the Project. • Three (3) copies of the Preliminary Engineering Report. • Five (5) copies of Final Plans and Specifications including opinion of cost. • Three (3) copies of Final Plans and Specifications to the Contractor. • Electronic files in accordance with the Agreement. A.4 Project Design Schedule MWY shall begin work under this Agreement within ten (10) calendar days of a Notice to Proceed (NTP) and shall complete design work in accordance with the schedule below: Phase Description Calendar Days Submit Preliminary Engineering Report (PER) 45 days from NTP issued by Owner Submit Final Construction Plans and Specifications 30 days from PER Approval by Owner Anticipated Project Construction 75 days from Award of Construction Contract Fy-332 MWY — City of Fayetteville Agreement 06/28/05 Appendix A -3 C CITY OF FAYETTEVILLE AGREEMENT FOR ENGINEERING SERVICES APPENDIX B - SCHEDULE OF CLASSIFICATIONS AND RATES FOR 2005 This is Appendix B, consisting of one page, referred to in and part of the Agreement For Professional Engineering Services between CITY OF FAYETTEVILLE, ARKANSAS and McGOODWIN, WILLIAMS, AND YATES, INC. dated ,yIM IL ,?nbS Classification Initial: CITY OF FAYETTEVILLE L C . McGOODWIN, WILLIAMS, ND YATES, INC. - Hourly Rate Engineer 6................................................................ $165.00 Engineer5................................................................ 142.00 Engineer 4................................................................ 130.00 Engineer3................................................................ 112.00 Engineer2................................................................ 81.50 Engineer1................................................................ 66.50 Architect2............................................................. $ 102.50 Architect1.............................................................. 95.00 Technician6 ............................................................ $ 92.50 Technician5............................................................. 79.00 Technician 4............................................................. 64.00 Technician3............................................................. 53.00 Technician 2............................................................. 40.00 Technician1............................................................. 30.00 Admin5................................................................... $ 73.00 Admin4................................................................... 59.00 Admin3................................................................... 46.00 Admin2................................................................... 35.00 Admin1.................................................................... 30.00 GPS Surveying Equipment (when utilized)......... ..... $ 55.00 Hourly rate schedules will be adjusted annually each January 1. McGoodwin, Williams and Yates, Inc. Consulting Engineers Fayetteville, Arkansas January 1, 2005 Fy-332 MWY — City of Fayetteville Agreement 06/28/05 Appendix B - I a jd bD 'O d < a0 m 0 vi a tJ N Z . n r j d p O p < O C R D )V.p N O a a 4< N i'rM n6Nn /C f0 rbr 2 = ro p u J O9 O u 3w O /O yG O m n ^o 0 J b CO c d p O J O J Z = CI 3 D n 3 J p y M 0 m n 0 N N C R I o O c C m Q & i): m COn u m n 0.. a Z O S N O ID d J d Q d O b b b - - ^ O SI N M M M N N N M M N < 0 O O O O O O O O O O m CD O o a O a O O O O O O O a O a O O O a O °a rol O N d.. J N T?' o d: O g N C m O ^ N Z o Z m u c 3 b 3 0 m $ 9 o 0 oa 0 b 0 # O = 9 -I_I N (Ti9 O C -1 < O K '., p pc I _ • a H J IC O a N m 2 A 0 1 a N J a O, a y O CI 0 N CD O to 0; a J IN ` N b b = < q Y Y N C N d O m N J N N. O $ N O O o O a O O a d C CI T a ry Z o a FAYETTEVALE THE CITY OF FAYETTEVILLE, ARKANSAS To: Mayor Dan Coody and City Council Thru: Gary Dumas, Director of Operations From: Ron Petrie, City Engineer Date: July 6, 2005 Subject: 24" Water Main Replacement Engineering Contract RECI hMMENDATION Staff recommends approval of a resolution awarding a contract with McGoodwin, Williams and Yates, Inc., in the amount of S93,800.00 to provide surveying, engineering design, bidding and construction observation services for the 24" Water Main Replacement project. This project includes replacement of approximately 4,500 IS of 24" waterline, including approximately 1,450 LF in the north -south easement west of and parallel to West Custer Street and the remainder along Morningside Drive and 15'" Street. BACKGROUND This project was identified in the 2002-2006 Capital Improvement program and placed in the unfunded category. It was the highest priority unfunded project in the 2004 CIP. In early 2004, the City attempted to initiate the project, but funds that were gathered had to be applied to mandatory AIITD widening projects that were first identified in the same time frame. The existing 24" water main has experienced numerous leaks due to external corrosion. The severity of the leaks has increased significantly in the last two years. Prior to that time, the leaks were (relatively) small, due to holes in the pipe generally less than 2" diameter. There have been three leaks in the last two years that were significantly larger, with linear splits up to 8' long or large chunks (2' x 3') of pipe wall being blown out. These larger leaks significantly increase the risk of property damage to the homes behind which the pipe is installed. DISCUSSION McGoodwin, Williams and Yates, Inc. was selected for this project by an engineering selection committee on June 7, 2005. They have worked with the City to develop a contract with a scope of work that covers the items necessary for the design, bidding, and construction observation of this project. It is anticipated that the design will begin in the third quarter of 2005 and be completed in the fourth quarter of 2005 with construction also starting in the fourth quarter of 2005. BUDGET IMPACT Water Line Projects as Needed (Project #04020) will be charged the $93,800.00 required for this design. This project is funded by the Water and Sewer Fund. The costs for this project are estimated to be $600,000.00 for construction and $30,000.00 for easements. This estimate is base on an estimated cost of $133.00 per foot of pipe. 7 /l 9105 /3 113 WEST MOUNTAIN 72701 479-521-7700 FAX 479-575-0257 0 0 RESOLUTION NO. 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 t hereof. PASSED and APPROVED this 19th day of July, 200 ! i APPROVE v DAN ,,/ODY, Ma or ATTES By: x SONDRA S ITH City Clerk Li- 24" MATER LINE REPLACEMENT One Mile View 'wc°' "¢ '- fL iiba.iir• --. a•._,.P��....�..t,5.e_ '.- Iaf.N • a• -•1 RSA ''/[�I-J�jrf•ii.J•. Y QI°n f•rp�RN6 ft•1Jnj•. •••' % •.5 ) • • ,I y�ieJ_ y Ct�`- 1 ((p• 9�[•j jj�,.7y s. aYr. 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THIS AGREEMENT is made as of , 20_, by and between City of Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETI'EVILLE) and McGoodwin, Williams and Yates, Inc. with offices located in Fayetteville, Arkansas (hereinafter called MWY). CITY OF FAYETI'EVILLE 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 Morningside (the "Project"). Therefore, CITY OF FAYE I-I'EVILLE and MWY in consideration of their mutual covenants agree as follows: MWY shall serve as CITY OF FAYETFEVILLE'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. Fy-332 Prime Agreement: MWY — City of Fayetteville I of 26 24" Water Line Replacement 06/28/05 SECTION 2- BASIC SERVICES OF MWY 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, 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 furnished 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 Microsofto 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 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 he 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 Arkansas Department of Health (Al ID) 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. Fy-332 Prime Agreement: MWY - City of Fayetteville 3 of 26 24" Water Line Replacement 06/28/05 I I 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 Determine land and casement 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, casement, 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 he 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 FAYE IT1iVILI,E 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. Fy-332 Prime Agreement: MWY - City of Fayetteville 4 of 26 24" Water Line Replacement 06/28/05 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. 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 FAYEI'FEVILLE in obtaining and evaluating bids and preparing construction contracts. 2.3.6 Consult with and advise CITY OF FAYEI"FEVILI.Ii 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, methods, 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: Fy-332 Prime Agreement: MWY —City of Fayetteville 5 of 26 24" Water Line Replacement 06/28/05 MWY's management functions required to complete services to be provided under this Agreement shall include all project correspondence with the CITY 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. review and acceptance by the CITY OF FAYETTEV ILLE's legal counsel. 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 t 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. values and schedule of estimated monthly payments. 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, determine if the Contractor's guarantees and bonds comply with all applicable requirements of 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. Interpret construction Contract Documents when requested. - City of Fayetteville 6 of 26 24" Water Line Replacement 06/28/05 2.4.3.7 Review Contractor's applications for payment and supporting data, determine the amounts owed to Contractor, and recommend to the CITY OF FAYETTEVILLE, in writing, concurrence of all payments to Contractor in accordance with the Contract Documents. MWY'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 he 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 7 of 26 24" Water Line Replacement 06/28/05 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 -site, 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 FAYETTEVILLE. 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 FAYE I-TEVILLE, 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 authorized 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, easement preparation, and assistance in negotiations. Fy-332 Prime Agreement: MWY — City of Fayetteville 8 of 26 24" Water Line Replacement 06/28/05 0 3.1.2 Financial Consultation 3.1.2.1 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 3.1.3.1 Provide Contract and Project administration to the degree authorized by CITY OF FAYET'I'EVII.,LE. 3.1.4 Furnishing renderings or models of the Project for CITY OF FAYEITEVILLE'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, 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 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 FAYETI'EVILLE indicates in writing that all or parts of such Contingent Additional Services are not required, MWY shall have no obligation to provide those services. Fy-332 Prime Agreement: MWY - City of Fayetteville 9 of 26 24" Water Line Replacement 06/28/05 3.2.2 Making revisions in Drawings, Specifications, or other documents when such revisions arc: 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, reports, sketches, 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 10 of 26 24" Water Line Replacement 06/28/05 0 4.8 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. 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 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 MWY's use in coordinating the Contract Drawings and Specifications. CITY OF FAYETTEVILLE and/or its representative will review all documents and provide written comments to MWY in a timely manner. SECTION 5- PERIOD OF SERVICE 5.1 5.2 This Agreement will become effective upon the first written notice by CITY OF FAYETTEVILLE authorizing services hereunder. 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 Fy-332 Prime Agreement: MWY — City of Fayetteville II of 26 24" Water Line Replacement 06/28/05 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 S25,500.00). 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 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 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. Fy-332 Prime Agreement: MWY - City of Fayetteville 12 of 26 24" Water Line Replacement 06/28/05 0 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 parties 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 $40,000.00), unless amended in accordance with Paragraph 6.1.5. 6.1.4 The CITY OF FAYf ITEVILLE 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 are included as Appendix B to this Amendment. Rates will be adjusted each January 1. 6.1.4.2 The following direct expenses are considered reimbursable and arc 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. Fy-332 Prime Agreement: MWY - City of Fayetteville 13 of 26 24" Water Line Replacement 06/28/05 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 coverage 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 he 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 arc 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 14 of 26 24" Water Line Replacement 06/28/05 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 FAYETI'EVILLE'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: 7.1.2 Tvne of Coveraee 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 5500,000 Each Accident $1,000,000 Combined Single Limit $1,000,000 Combined Single Limit S 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. 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 Fy-332 Prime Agreement: MWY - City of Fayetteville 15 of 26 24" Water Line Replacement 06/28/05 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, care, 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 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 MWY. 7.2.2 In addition MWY will he 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 Fy-332 Prime Agreement: MWY - City of Fayetteville 16 of 26 24" Water Line Replacement 06/28/05 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. Fy-332 Prime Agreement: MWY - City of Fayetteville 17 of 26 24" Water Line Replacement 06/28/05 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 incurred 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 18 of 26 24" Water Line Replacement 06/28/05 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 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 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 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 FAYF; ITEVILLE 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. Fy-332 Prime Agreement: MWY — City of Fayetteville 19 of 26 24" Water Line Replacement 06/28/05 • fl 7.10 Publications Recognizing the importance of professional development on the part of MWY's employees and the importance ofMWY's WY's public relations, MWY may prepare publications, such as technical papers, articles for periodicals, and press releases, pertaining to MWY's services for the Project. Such publications will be provided to CITY OF FAYETTEVILLE in draft form for CITY OF FAYETTEVILLE's advance review. CFIY OF FAYE"ITEVILLE shall review such drafts promptly and provide CITY OF FAYETTEVILLE's comments to MWY. 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 MWY's activities pertaining to any such publication shall be for MWY'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 CFIY OF FAYETTEVILLE and MWY 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 MWY may use or modify MWY's proprietary computer models in service of CITY OF FAYE"ITEVILLE under this Agreement, or MWY may develop computer models during MWY's service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or development by MWY does not constitute a license to CITY OF FAYETTEVILLE to use or modify MWY's computer models. Said proprietary computer models shall remain the sole property of MWY. CITY OF FAYETTEVILLE and MWY will enter into a separate license agreement if CITY OF FAYETTEVILLE wishes to use MWY'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, specifications, field notes, and data are and remain the property of CITY OF FAYETTEVILLE. MWY may retain reproduced copies of drawings and copies of other documents. Fy-332 Prime Agreement: MWY — City of Fayetteville 20 of 26 24" Water Line Replacement 06/28/05 Engineering documents, drawings, and specifications prepared by MWY as part of the Services shall become the property of CITY OF FAYETTEVILLE when MWY has been compensated for all Services rendered, provided, however, that MWY shall have the unrestricted right to their use. MWY 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 MWY. Any files delivered in electronic medium may not work on systems and software different than those with which they were originally produced. MWY 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 scaled original drawings/hard copies and the electronic files, the scaled 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 ATTN: Ron Petrie, P. E. 113 West Mountain Street Fayetteville, Arkansas 72701 MWY's address: McGoodwin, Williams and Yates, Inc. ATTN: Brad B. Hammond, P. E. 909 Rolling Hills Drive Fayetteville, Arkansas 72703 7.15 Successor and Assigns CITY OF FAYETTEVILLE and MWY 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 MWY shall assign, sublet, or transfer his interest in the Agreement without the written consent of the other. Fy-332 Prime Agreement: MWY - City of Fayetteville 21 of 26 24" Water Line Replacement 06/28/05 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. Entire Agreement 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 MWY a purchase order, n or not signed by MWY, shall be considered as a document for CITY OF FAYI 1 FEVILLE's internal management of its operations. SECTION 8- SPECIAL CONDITIONS Responsibilities of MWY: CITY OF FAYETI'EVILLF.'s review, approval, or acceptance of design drawings, specifications, reports and other services furnished hereunder shall not in any way relieve MWY of responsibility for the technical adequacy of the work. CITY OF FAYETTEVILLE's review, approval or acceptance of, nor payment for any of the services shall be construed as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. MWY shall be and shall remain liable, in accordance with applicable law, for all damages to CITY OF FAYETTEVILLE caused by MWY's negligent performance of any of the services MWY's obligations under this clause are in addition to MWY's other express or implied assurances under this Agreement or State law and in no way diminish any other rights that CITY OF FAYETTEVILLE may have against MWY for faulty materials, equipment, or Fy-332 Prime Agreement: MWY — City of Fayetteville LI • 8.2 Remedies Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes and other matters in question between CITY OF FAYETTEV ILLE and MWY arising out of or relating to this Agreement or the breach thereof will be decided in a court of competent jurisdiction within Arkansas. 8.3 Audit: Access to Records 8.3.1 MWY shall maintain books, records, documents and other evidence directly pertinent to performance on work under this Agreement in accordance with generally accepted accounting principles and practices consistently applied in effect on the date of execution of this Agreement. MWY shall also maintain the financial information and data used by MWY in the preparation of support of the cost submission required for any negotiated agreement or change order and send to CITY OF FAYE"ITEVILLE a copy of the cost summary submitted. The United States Environmental Protection Agency, the Comptroller General of the United States, the United States Department of Labor, CITY OF FAYETTEVILLE, the State or any of their authorized representatives shall have access to all such books, records, documents and other evidence for the purpose of inspection, audit and copying during normal business hours. MWY will provide proper facilities for such access and inspection. 8.3.2 Records under Paragraph 8.3.1 above, shall be maintained and made available during performance on assisted work under this Agreement and until three years from the date of final payment for the project. In addition, those records which relate to any controversy arising out of such performance, or to costs or items to which an audit exception has been taken, shall he maintained and made available until three years after the date of resolution of such appeal, litigation, claim or exception. 8.3.3 This right of access clause (with respect to financial records) applies to: 8.3.3.1 Negotiated prime agreements: 8.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting the price of any formally advertised, competitively awarded, fixed price agreement: 8.3.3.3 Agreements or purchase orders under any agreement other than a formally advertised, competitively awarded, fixed price agreement. However, this right of access does not apply Fy-332 Prime Agreement: MWY - City of Fayetteville 23 of 26 24" Water Line Replacement 06/28/05 to a prime agreement, lower tier subagreement or purchase order awarded after effective price competition, except: 8.3.3.3.1 With respect to record pertaining directly to subagreement performance, excluding any financial records of MWY; 8.3.3.3.2 If there is any indication that fraud, gross abuse or corrupt practices may be involved; 8.3.3.3.3 If the subagreement is terminated for default or for convenience. 8.4 Covenant Against Contingent Fees MWY warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement of understanding for a commission, percentage, brokerage or continent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by MWY for the purpose of securing business. For breach or violation of this warranty, CITY OF FAYETTEVILLE shall have the right to annul this Agreement without liability or at its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. 8.5 Gratuities 8.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that MWY or any of MWY's agents or representatives, offered or gave gratuities (in the form of entertainment, gifts or otherwise) to any official, employee or agent of CITY OF FAYETTEVILLE in an attempt to secure an agreement or favorable treatment in awarding, amending or making any determinations related to the performance of this Agreement, CITY OF FAYETTEVILLE may, by written notice to MWY terminate this Agreement. CITY OF FAYETTEVILLE may also pursue other rights and remedies that the law or this Agreement provides. However, the existence of the facts on which CITY OF FAYETTEVILLE bases such finding shall be in issue and may be reviewed in proceedings under the Remedies clause of this Agreement. 8.5.2 In the event this Agreement is terminated as provided in Paragraph 8.5.1, CITY OF FAYETTEVILLE may pursue the same remedies against MWY as it could pursue in the event of a breach of the Agreement by MWY. As a penalty, in addition to any other damages to which it may be entitled by law, CITY OF FAYETTEVILLE may pursue exemplary damages in an amount (as determined by CITY OF FAYETTEVILLE) which shall be not Fy-332 Prime Agreement: MWY —City of Fayetteville 24 of 26 24" Water Line Replacement 06/28/05 E less than three nor more than ten times the costs MWY incurs in providing any such gratuities to any such officer or employee. 8.6 Arkansas Freedom of Information Act City contracts and documents, including internal documents and documents of subcontractors and sub - consultants, prepared while performing City contractual work are subject to the Arkansas Freedom of Information Act (FOIA). If a Freedom of Information Act request is presented to the CITY OF FAYE El EVILLE, MWY will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25-19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 8.7 Debarment and Suspension I certify that to the best of my knowledge and belief that the company that I represent and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three year period preceding this proposal been convicted of or had a civil judgement rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default. Fy-332 Prime Agreement: MWY - City of Fayetteville 25 of 26 24" Water Line Replacement 06/28/05 I understand that a false statement on this certification regarding debarment and suspension may be grounds for rejection of this proposal or termination of the award. In addition, under 18 USC Sec. 1001, a false statement may result in a fine of up to $10,000 or imprisonment for up to 5 years, or both. I further certify that I will obtain a similar certification for each subcontract awarded in excess of $25,000. DEBARMENT CERTIFICATION AUTHORIZED REPRESENTATIVE COMPANY SIGNATURE: DATE:. PRINTED NAME: TITLE: IN WITNESS WHEREOF, CITY OF FAYE11EVILI.E, ARKANSAS by and through its Mayor, and MWY, by its authorized officer have made and executed this Agreement as of the day and year first above written. CITY OF FAYETTEVILLE, ARKANSAS Mayor ATI'EST: By: City Clerk McGOODWIN, WILLIAMS AND YATES, INC. By: Brad B. Hammond, P. E., President ATTEST: By: James C. Ulmer, P. E., Chief Operating Officer 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. END OF AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES Fy-332 Prime Agreement: MWY — City of Fayetteville 26 of 26 24" Water Line Replacement 06/28/05 CITY OF FAYETTEVILLE AGREEMENT FOR ENGINEERING SERVICES APPENDIX A - SCOPE OF SERVICES This is Appendix A, consisting of three pages, referred to in and part of the Agreement For Professional Engineering Services between CITY OF FAYETTEVILLE, ARKANSAS and McGOODWIN, WILLIAMS, AND YATES, INC. dated Initial: CITY OF FAYETTEVILLE McGOODWIN, WILLIAMS, AND YATES, INC. The following contains additional Scope of Services tasks A.I General Scope The work covered by this agreement includes a preliminary engineering report followed by detailed design, preparation of construction drawings and specifications, and assistance during the project bid phase and construction phase for the recommended water line improvements. The scope of the project includes replacement of approximately 4,500 linear feet (LF) of existing 24 -inch waterline, including approximately 1,450 LF in the north -south casement west of and parallel to West Custer Street and the remainder along Momingside Drive and 15th Street, A.2 Specific Scope of Services MWY shall provide a suitable engineering staff to complete the necessary field surveys, to perform detailed design, to prepare plans and specifications, to provide needed services during the bid phase and the construction phase of the project, and to provide other services as may be directed by the CITY OF FAYETTEVILLE (Owner). The staff shall consist of engineers, engineering technicians, inspectors and other assistants as may be necessary to carry on the work in an efficient and expeditious manner. MWY will provide the following services: A.2.1 Preliminary Engineering Report a. Perform topographical survey of affected areas. b. Develop design alternatives, including utilizing the existing hydraulic water model to investigate design scenarios. c. Develop Opinions of Probable Costs for alternatives. It is understood and agreed that this opinion will be prepared for planning and budgeting purposes only and that MWY makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. d. Evaluate alternatives. e. Develop recommendations. f. Provide report summarizing alternatives and recommendations. A.2.2 Detailed Design and Preparation of Construction Plans and Specifications a. Prepare final design for the project based on recommendations from the Preliminary Engineering Report. b. Prepare detailed construction specifications and drawings. Fy-332 MWY — City of Fayetteville Agreement 06/28/05 Appendix A, 1 C. Prepare an opinion of probable cost of the authorized construction. It is understood and agreed that this opinion will be prepared for planning and budgeting purposes only and that MWY makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. d. Submit, on behalf of the Owner, construction specifications, drawings and design criteria for approval to the Arkansas Department of Health and other agencies, if required. A.2.3 Bidding and Preconstruction Services MWY will prepare and distribute advertisements for bids, communicate with bidders as required, provide technical interpretation of the plans and specifications, prepare addenda as required, attend and conduct the bid opening, tabulate bids, provide an engineering analysis of the bids received, review contractor references, make recommendations concerning award of the construction contract and assist in the preparation of contract documents. Bid tabulations and supporting documents will be prepared and submitted to the Owner. The scope of services includes advertising and bidding one project and does not include dividing construction contracts into multiple projects and/or bids. A.2.4 Construction Phase Services Furnish professional engineers to make visits to the site at appropriate intervals to observe the progress and quality of the executed work and to determine in general if the work is proceeding in accordance with the contract documents. In performing these services, MWY shall have no control over, nor responsibility for the Contractor's means, methods, sequence, techniques or procedures in performing the work, or for safety programs in connection with the work. These are solely the responsibilities of the Contractor, who is also responsible for complying with all health and safety precautions as required by any regulatory agencies. b. Furnish the services of other field personnel for on -the -site observation of construction and for the performance of required construction layout surveys when requested by the Owner. The authority and duties of such Project Representatives are limited to examining the material furnished and observing the work done and to reporting their findings to MWY. MWY will use the usual degree of care and prudent judgment in the selection of competent Project Representatives, and MWY will use diligence to see that the Project Representatives are on the job to perform their required duties. c. The required construction layout surveys will include the establishment of baselines for locating the work, with a suitable number of benchmarks for site elevation references as shown in the plans and specifications. d. Consult with and advise the Owner; issue all instructions to the Contractor requested by the Owner; and prepare routine change orders as required. e. Review submittals by the Contractor at the request of the Owner. This review is for the benefit of the Owner to ensure general conformance with the design concept of the project and general compliance by the Contractor with the information given in the contract documents. It does not relieve the Contractor of any responsibility such as dimensions to be confirmed and correlated at the job site, appropriate safety measures to protect workers and the public, or the necessity to construct a complete and workable facility in accordance with the contract documents. Fy-332 MWY — City of Fayetteville Agreement 06/28/05 Appendix A - 2 S • f. Furnish to the Owner two copies of the record drawings for the project. A.3 Project Deliverables The following will be submitted to the Owner, or others indicated, by MWY as part of the Project. • Three (3) copies of the Preliminary Engineering Report. • Five (5) copies of Final Plans and Specifications including opinion of cost. • Three (3) copies of Final Plans and Specifications to the Contractor. • Electronic files in accordance with the Agreement. A.4 Project Design Schedule MWY shall begin work under this Agreement within ten (10) calendar days of a Notice to Proceed (NTP) and shall complete design work in accordance with the schedule below: Phase Description Calendar Days Submit Preliminary Engineering Report (PER) 45 days from NTP issued by Owner Submit Final Construction Plans and Specifications 30 days from PER Approval by Owner Anticipated Project Construction 75 days from Award of Construction Contract Fy-332 MWY — City of Fayetteville Agreement 06/28/05 Appendix A -3 E CITY OF FAYETTEVILLE AGREEMENT FOR ENGINEERING SERVICES APPENDIX B - SCHEDULE OF CLASSIFICATIONS AND RATES FOR 2005 This is Appendix B, consisting of one page, referred to in and part of the Agreement For Professional Engineering Services between CITY OF FAYETTEVILLE, ARKANSAS and McGOODWIN, WILLIAMS, AND YATES, INC. dated Classification Initial: CITY OF FAYETTEVILLE McG00DWIN, WILLIAMS, AND YATES, INC. Hourly Rate Engineer6................................................................ $165.00 Engineer5................................................................ 142.00 Engineer4................................................................ 130.00 Engineer 3................................................................ 112.00 Engineer2................................................................ 81.50 Engineer1................................................................ 66.50 Architect 2............................................................. $ 102.50 Architect1.............................................................. 95.00 Technician6 ............................................................ $ 92.50 Technician5 ............................................................. 79.00 Technician 4............................................................. 64.00 Technician3 ............................................................. 53.00 Technician 2............................................................. 40.00 Technician1 ............................................................. 30.00 Admin5................................................................... $ 73.00 Admin4................................................................... 59.00 Admin3................................................................... 46.00 Admin2................................................................... 35.00 Admin1.................................................................... 30.00 GPS Surveying Equipment (when utilized) .............. $ 55.00 Hourly rate schedules will be adjusted annually each January 1. McGoodwin, Williams and Yates, Inc. Consulting Engineers Fayetteville, Arkansas January 1, 2005 Fy-332 MWY — City of Fayetteville Agreement 06/28/05 Appendix B - I • City of Fayetteville • Staff Review Form City Council Agenda Items or Contracts 19 -Jul -05 City Council Meeting Date Ron Petrie Submitted By Engineering Operations Division Department Action Required: tl of a resolution awarding a contract with McGoodwin, Williams and Yates, Inc. for engineering, surveying, and construction observation services for the 24" Waterline Replacement project. $93,800.00 Cost of this request 5400.5600.5808.00 Account Number 04020 Project Number Budgeted Item $ 285,500.00 Category/Project Budget S Funds Used to Date $ 285,500.00 Remaining Balance Budget Adjustment Attached Water Line Projects as Needed Program Category / Project Name Water & Sewer Improvements Program / Project Category Name Water & Sewer Fund Fund Name Previous Ordinance or Resolution # Dep rtmen Date Original Contract Date: �ZZ 7 City Attorney Finance an Intern ervice Director D to Mayor Original Contract Number: Received in City Clerk's Office Received in Mayor's Office - Contracts Page 1 From: Clarice Pearman To: Jurgens, David Date: 7/21/05 10:38AM Subject: Contracts David, This is just confirm that you and I have talked regarding the missing contracts as attachments for the resolutions passed by City Council on Tuesday, July 19. 2005. I understand that you will talk with MWY this afternoon regarding their contract. I also understand that you will be talking to RJN Group regarding their contracts and OMI regarding the Jack Tyler Engineering contract. Thank you for your help and attention to this matter Clarice Clarice Pearman McGoodwin Williams es Page 1 From: Clarice Pearman To: Jurgens, David Subject: McGoodwin, Williams & Yates David, Just a reminder the resolution passed by City Council July 19, 2005 has not been processed as of yet. am still waiting on the contract for MWY. Thanks. Clarice From: David Jurgens To: cpearman@ci.fayetteville.ar.us Date: 8/20/05 6:19PM Subject: Re: McGoodwin, Williams & Yates Clarice, Thank you for the reminder. We are actually holding that one on purpose David >>> Glance Pearman 08/19/05 16:35 PM >>> David, Just a reminder the resolution passed by City Council July 19, 2005 has not been processed as of yet. I am still waiting on the contract for MWY. Thanks. Glance From: Clarice Pearman To: Jurgens, David Date: 10/31/05 5:07PM Subject: McGoodwin, Williams & Yates David, I am still waiting to process this item from the July 19, 2005. Please let me know when I can expect to have a signed agreement. Thanks. Clarice Clarice Pearman - Res. 139-05 — — — — Pagel From: Clarice Pearman To: Norbash, Sid Subject: Res, 139-05 Sid, Attached is a copy of the resolution passed by City Council, July 19, 2005 regarding McGoodwin, Williams & Yates. I will forward to internal audit the purchase requisition. This will confirmation that you did pick up two of the three original contracts. Thanks. Clarice CC: Bell, Peggy; Deaton, Vicki 7421 v//3y; OS MCGOWIL-01 COCR ACORD CERTIFICATE OF LIABILITY INSURANCE DA 811412008 PRODUCER (901) 820-0400 Crow Friedman Group, LLC 5141 Wheelis Dr. Memphis, TN 38117 RECEIVED it 2 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED McGoodwin Williams & Yates, IncMJG 909 Rolling Hills Drive CITY OF FAYETTEVILLE Fayetteville, AR 72703-3427 MAYORS OFFICE INSURERA:Zurich American Insurance Company INSURERS: INSURER C: INSURER 0: INSURER E: CnVFRAnFS THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FORTHE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. DISR DDLPOLICY MSRt TYPE OF INSURANCE NUMBER POLICY EFFECTIVE DATE IMMDOtY'fl PODGY EXPIRATIONLIP DATE (MMitflTYYI LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE I OCCUR . _ _ EACH OCCURRENCE $ PREMISES Ee occurenoe $ MED EXP (Any one person) S PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- LOC PRODUCTS- COMP/OP AGO $ AUTOMOBILE LIABILITY ANY AUTO ALLOW NED AUTOS SCHEDULED AUTOS HIRED AUTOS NON —OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per parson) BODILY INJURY or accident) S PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ $ EXCESS/UMBRELLA LIABILITY OCCUR CLAIMS MADE DEDUCIBLE RETENTION $ EACH OCCURRENCE $ AGGREGATE $ b $ $ __EMPLOVERS'LJABIIJTY, WORKERSCOMPENSATIONAND _ ANY PROPRIETORPARTNER/EXECUTIVE� OFFICERlMEMBEREXCLUDED? If yea, describe antler SPECIAL PROVISIONS below _ _ — _ _ - I WCSTATLL T M OTH- -E:L. EACH ACCDEM1T— — S-- E.L. DISEASE - EA EMPLOYEE E E.L. DISEASE -POLICY LIMIT E A A OTHER Professional Liability Professional Liability EOC9375584-05 EOC9375584-05 712112008 7/21/2008 7/21/2009 7/21/2009 Each Claim $2,000,00 ( Aggregate $4,000,00 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES! EXCLUSIONS ADDED BY ENDORSEMENT 'SPECIAL PROVISIONS RE City of Fayetteville Wastewater Treatment Plant rcnrrerr wre un' nCO CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of Fayetteville DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYSwR11TEN Attn: David Jurgens NOTICE TO THE CERTIFlCATE HOLDER NAMED TO THE LEFT, BVT FAILURE TO DO SO SHALL 113 W. Mountain Street IMPOSE NO OBUGAIION OR LIABILITY OF ANY KIND UPON THE INSURER ITS AGENTS OR Fayetteville, AR 72701- REPRESENTATIVES. AUTHORED REPRESENTATIVE ACORD 25 (2001108) ll MYVrw wWmvw I3wel