HomeMy WebLinkAbout250-05 RESOLUTION•
RESOLUTION NO. 250-05
A RESOLUTION APPROVING AN AMENDMENT TO THE
ENGINEERING CONTRACT WITH ENVIRONMENTAL
CONSULTING OPERATIONS, INC. IN THE AMOUNT OF
$579,343.00 FOR CONSTRUCTION AND POST -CONSTRUCTION
PHASE SERVICES FOR THE ENTIRE WASTEWATER SYSTEM
IMPROVEMENT PROJECT (WSIP); AND APPROVING A
CONTINGENCY OF $20,000.00.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby awards a construction contract with Environmental Consulting
Operations, Inc. in the amount of $579,343.00 for construction and post -
construction phase services for the entire Wastewater System Improvement
Project (WSIP). A copy of the amendment marked Exhibit "A" is attached hereto,
and made a part hereof.
Section 2. That the City Council of the City of Fayetteville, Arkansas
hereby approves a contingency of 520,000.00.
PASSED and APPROVED this 20th day of December, 2005.
ATTEST:
By
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E ;FAYETTEVILLE:
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SONDRA SMITH, City Clerk
APPROVED:
By:
DAN COODY, Ma
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AMENDMENT NO. 2
TO
AGREEMENT FOR - ENVIRONMENTAL CONSULTING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
ENVIRONMENTAL CONSULTING OPERATIONS, INCORPORATED
BENTON, ARKANSAS
WHEREAS, On September 16, 2003 the City of Fayetteville, Arkansas (FAYETTEVILLE) and
Environmental Consulting Operations, Inc. of Benton, Arkansas (ECO) entered into an agreement for
environmental consulting services in connection with the Wastewater System Improvement Project
(Project). Scope of services being provided includes environmental consultant services related to various
environmental permits, best management practices for construction and wetland mitigation activities, and
WHEREAS, ECO has proceeded with these services in accordance with the scope set forth in the
agreement, and
WHEREAS, Amendment No. 1 to the agreement included environmental consultant services in
connection with INTERCEPTOR SEWER REALIGNMENT-SPRINGWOODS SUBDIVISION;
and
WHEREAS, FAYETTEVILLE requests the scope of ECO's services be amended to include
"CONSTRUCTION/POST CONSTRUCTION PHASE ENVIRONMENTAL CONSULTING
SERVICES"; and
WHEREAS, ECO agrees to provide amended scope of services on an hourly rate basis with a not -to -
exceed additional cost of Five Hundred Seventy -Nine Thousand Three Hundred and Forty -Nine U.S.
Dollars (US $579,349).
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained,
FAYETTEVILLE and ECO, the parties hereto, stipulate and agree that the Agreement for
Environmental Consulting Services dated September 16, 2003, is hereby amended in the following
particulars:
SECTION 1 - AUTHORIZATION OF SERVICES
1.1 Services on any assignment shall be undertaken only upon written Authorization of
FAYETTEVILLE and agreement of ECO.
1.2 Assignments may include services described hereafter as Basic Services or as Additional
Services of ECO.
1.3 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City Council
in advance of the change in scope, costs, fees, or delivery schedule.
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SECTION 2 - BASIC SERVICES OF ECO
2.1 General
2.1.1 Perform environmental consulting services in connection with the Project as hereinafter
stated, which shall include normal environmental consulting services incidental thereto.
2.1.1.1 The Scope of Services to be furnished by ECO during the Construction 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 ECO during the Post -Construction Phase, if
any, will be finalized and contained in an amendment to this Agreement prior to
commencement of the Post -Construction Phase.
2.1.1.3 The preliminary Scope of Services to be furnished by ECO for Resident Services During
Construction, if any, will be finalized and contained in an amendment to this Agreement
prior to commencement of the Construction Phase.
2.1.2 The environmental consulting services to which this Agreement applies are a part of the
Wastewater System Improvement Project. ECO shall coordinate their activities and services
primarily with FAYETTEVILLE Water and Wastewater Director and all other parties that
FAYETTEVILLE may contract with for program management or professional design
services as a part of the Wastewater System Improvement Project.
2.2 Construction Phase
2.2.1 Conduct periodic visual on-site observations of construction activities to evaluate
implementation of Best Management Practices (BMPs) and regulatory compliance status of
activities conducted by Contractors and develop written reports to document observations and
provide recommendations to applicable Design Professionals and FAYETTEVILLE, and
assist Design Professionals in the preparation of other related documents pertaining to
environmental regulatory issues, as described in Appendix A of this Agreement.
2.2.1.1 Text documents shall be provided to FAYETTEVILLE in Microsoft' Word, Microsoft
Excel, and Adobe PDF version 2004 software.
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2.2.1.2 When requested by FAYETTEVILLE's Water and Wastewater Director, prepare for
and attend up to two City Council meetings to provide periodic updates on the progress
of the environmental regulatory program.
2.2.2 Prepare technical criteria and written descriptions to address environmental regulatory
compliance status or requests for information by governmental authorities having jurisdiction
to review or approve the environmental regulatory permitting of the Project. Assist
FAYETTEVILLE in consultations with appropriate authorities.
2.2.3 Furnish Design Professionals with applicable environmental regulatory documents, specific
to their scopes of work.
2.2.3.1 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.
2.2.4 Render monthly compliance evaluation reports to FAYETTEVILLE and confirm status of
compliance with environmental regulatory compliance schedule.
2.2.5 Provide to the FAYETTEVILLE in a format mutually acceptable to the FAYETTEVILLE
and ECO such schedules, reports, 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. Refresh the data supplied to the
FAYETTEVILLE no more frequently than monthly.
2.2.6 Arrange for applicable environmental regulatory permit requirements to be sent to project
Design Professionals who will be performing Construction Phase services and preparing
notices to be sent to Contractors.
2.2.7 FAYETTEVILLE shall organize, convene and conduct Pre -Bid Conferences. ECO shall
not be required to attend the Pre -Bid Conferences. As needs arise for further explanations of
the environmental regulatory requirements or as questions are posed from prospective
bidders, FAYETTEVILLE will communicate such issues to directly to ECO. ECO shall
consider the questions received and provide the necessary clarifications and changes to
FAYETTEVILLE for dissemination to concemed parties.
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2.2.8 FAYETTEVILLE and applicable Design Professional shall organize, convene and conduct
Pre -Construction Conferences. ECO shall not be required to attend the Pre -Construction
Conferences. ECO shall consider the questions received from successful bidders, after Pre -
Construction Conferences and provide the necessary clarifications and answers to
FAYETTEVILLE for dissemination to concerned parties.
2.2.9 Sec Appendix A for additional services or clarification of services to be provided by ECO.
2.3 Post -Construction Phase
2.3.1 The scope of Post -Construction Phase Services, if any, will be negotiated prior to
commencement of the Post -Construction Phase
2.4 Resident Services During Construction
2.4.1 The scope of Resident Services During Construction, if any, will be negotiated prior to
commencement of the Construction Phase.
SECTION 3 - ADDITIONAL SERVICES OF ECO
3.1 General
If authorized in writing by the FAYETTEVILLE Mayor and the City Council and agreed to in writing
by ECO, ECO shall fumish or obtain from others Additional Services of the following types that are not
considered normal or customary Basic Services. The scope of Additional Services may include:
3.1.1 Fumishing renderings or Project documents concerning construction costs for
FAYETTEVILLE's use.
3.1.2 Miscellaneous Studies
Investigations, studies, or surveys for wetland mitigation on real property other than the West Side
Wastewater Treatment facility property currently owned by FAYETTEVILLE.
3.1.3 Preparing to serve or serving as a witness for FAYETTEVILLE in any litigation or other
proceeding involving the Project.
3.1.4 Extra Services
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3.1.4.1 Services not specifically defined heretofore that may be authorized by
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 ECO's control, ECO shall notify FAYETTEVILLE and request a
formal contract amendment approved by the Mayor and the City Council prior to
commencing such services. If FAYETTEVILLE deems that such services described in 3.2
are not required, FAYETTEVILLE shall give prompt written notice to ECO. If
FAYETTEVILLE indicates in writing that all or parts of such Contingent Additional
Services are not required, ECO shall have no obligation to provide those services.
3.2.2 Making revisions in Drawings, Specifications, or other documents when such revisions are:
3.2.2.1 Required because of inconsistent approvals or instructions previously given by
FAYETTEVILLE, including revisions to drawings, specifications, or other documents
made necessary by adjustments in 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 FAYETTEVILLF.
FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of ECO:
4.1 Provide full information as to FAYETTEVILLE's requirements for the Project.
4.2 Assist ECO by placing at ECO'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 ECO to enter upon public and private
property as required for ECO to perform his services under this Agreement.
4.4 Examine all studies, reports, sketches, cost opinions, construction reports, drawings,
proposals, and other documents presented by ECO and render in writing decisions pertaining
thereto.
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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 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 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 ECO whenever FAYETTEVILLE observes or otherwise
becomes aware of any defect in the Project.
4.8 Furnish approvals, correspondence, Notices of Violation, 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 ECO to provide, necessary Additional Services as stipulated in Section 3 of
this Agreement or other services as required.
4.1 1 If FAYETTEVILLE's standard bidding requirements, Agreement forms and General
Conditions are to be used, FAYETTEVILLE shall provide copies of such documents for
ECO's use in coordinating the Contract Drawings and Specifications.
4.12 FAYETTEVILLE and/or its representative will review all documents and provide written
comments to ECO in a timely manner.
SECTION 5 - PERIOD OF SERVICE
5.1 This Agreement will become effective upon the first written notice by 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. ECO will proceed
with providing the authorized services immediately upon receipt of written authorization
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from FAYETTEVILLE. The scope of services described in Appendix A are not anticipated
to extend beyond February 2009. Said authorization shall include the scope of the services
authorized and the time in which the services are to be completed.
SECTION 6 - PAYMENTS TO ECO
6.1 Compensation
6.1.1 Construction Phase Services
For the Scope of Services during the Construction Phase described herein, FAYETTEVILLE shall pay
ECO the sum of the following:
6.1.1.1 For time expended by personnel, payment at the hourly rates indicated in the attached
"Schedule of Hourly Professional Service Billing Rates". Such rates include overhead
and profit. The schedule is effective January I, 2005, and will be revised annually.
6.1.1.2 For outside expenses incurred by ECO, such as authorized travel and subsistence,
including airfare, food, lodging, automobile rental, commercial services, courier
deliveries, and incidental expenses, the cost to ECO.
6.1.1.3 The total payment for the Basic Scope of Services described in Appendix A is a lump
sum, "not to exceed" amount of Five Hundred Seventy -Nine Thousand Three Hundred
and Forty -Nine U.S. Dollars (US $579,349). The total payment is based on expending
no more than 4,452 person -hours.
6.1.1.4 Subject to the City Council approval, adjustment of the not -to -exceed amount may be
made should ECO establish and 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 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.
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6.2 Statements
6.2.1 Monthly statements for each calendar month shall be submitted to FAYETTEVILLE or
such parties as FAYETTEVILLE may designate for Construction Phase services consistent
with ECO'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 ECO and approved by FAYETTEVILLE.
Final payment for Construction Phase services shall be made upon FAYETTEVILLE's
approval and acceptance with the satisfactory completion of the Construction Phase for the
Project.
6.2.2 Statements and updated environmental regulatory compliance status report for each calendar
month will be submitted in electronic format simultaneously to FAYETTEVILLE, followed
by signed original document to FAYETTEVILLE. Statements will be based on ECO's
estimated percent of services completed at the end of the preceding month, and justified.
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of ECO's statement
is disputed by FAYETTEVILLE, the undisputed portion shall be paid by FAYETTEVILLE by the due
date. FAYETTEVILLE shall advise ECO in writing of the basis for any disputed portion of any
statement. FAYETTEVILLE will make reasonable effort to pay invoices within 30 days of date the
invoice is approved however, payment within 30 days is not guaranteed.
6.4 Final Payment
Upon satisfactory completion of the work performed under this Agreement, as a condition before final
payment under this Agreement, or as a termination settlement under this Agreement, ECO shall execute
and deliver to FAYETTEVILLE a release of all claims against FAYETTEVILLE arising under or by
virtue of this Agreement, except claims which are specifically exempted by ECO 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 FAYETTEVILLE's claims against ECO or his sureties under
this Agreement or applicable performance and payment bonds, if any.
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6.4.1 Post -Construction Phase Services
This section is reserved for future details conceming this phase, if any. This Agreement shall be amended
to include payment conditions prior to commencement of Post -Construction Phase Services.
6.4.2 Resident Services During Construction
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions prior to commencement of Resident Services During Construction.
6.4.2 Additional Services
For authorized Additional environmental consulting services under Section 3, "Additional Services",
compensation to ECO shall be negotiated at the time Additional Services are authorized.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, ECO 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
$1,000,000 Combined Single Limit
Professional Liability Insurance $1,000,000 Each Claim
ECO will provide to FAYETTEVILLE certificates as evidence of the specified insurance within ten
days of the date of this Agreement and upon each renewal of coverage.
7.1.2 Construction Contractors shall be required to provide (or FAYETTEVILLE may provide)
Owner's Protective Liability Insurance naming FAYETTEVILLE as a Named Insured and
ECO as additional insured, or, to endorse FAYETTEVILLE, and ECO as additional
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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 FAYETTEVILLE, and ECO. All contract
insurance carriers shall be required to list FAYETTEVILLE, and ECO as certificate
holders, furnishing copies of the contractor's insurance cenificate to each party
7.1.3 FAYETTEVILLE and ECO 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 ECO's services. All construction Contractors shall be required to provide
waivers of subrogation in favor of FAYETTEVILLE and ECO for damage or liability
covered by any construction Contractor's policy of insurance.
7.1.4 Neither the professional activities of ECO, nor the presence of ECO or ECO's employees
and subconsultants at a construction site, shall relieve the Contractors and any other entity of
their obligation, duties, and responsibilities including, but not limited to, construction means,
methods, sequence, techniques or procedures necessary for performing, superintending or
coordinating all portions of the work of construction in accordance with the contract
documents and any health or safety precautions required by the regulatory agencies. ECO
and ECO's personnel have no authority to exercise any control over any construction
contractor or other entity or their employees in connection with their scope of work or any
health or safety precautions. FAYETTEVILLE agrees that the construction contractors are
solely responsible forjobsite safety, and warrants that this intent shall be made evident in
FAYETTEVILLE'S agreement with all contractors. FAYETTEVILLE also agrees that
FAYETTEVILLE, ECO and ECO's subconsultants shall be indemnified and shall be made
additional insureds under the construction contractor's general liability insurance policy.
7.1.5 ECO will not possess broad responsibilities in relation to construction activities, including
both contractual and de facto authority over the work of the trade contractors; and, will not be
directly and substantially engaged in activities that were integrally connected with safety
issues, notwithstanding contract language expressly disclaiming safety responsibility.
7.1.6 FAYETTEVILLE agrees that ECO will not be responsible for any damages caused by
surface excavations or subsurface penetrations for surface and underground improvements
performed by others.
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7.1.7 It is acknowledged by FAYETTEVILLE that ECO's scope of services does not include any
services related to asbestos or hazardous or toxic materials. In the event that ECO or any
other party encounters asbestos or hazardous or toxic materials at the jobsite, or should it
become known in any way that such materials may be present at thejobsite or any adjacent
areas that may effect the performance of ECO's services, ECO may at ECO's option and
without liability for consequential or any other damages, suspend performance of services on
the project until FAYETTEVILLE retains appropriate specialist consultant(s) or
contractor(s) to identify, abate and/or remove the asbestos or hazardous or toxic materials,
and warrant that the jobsite is in full compliance with applicable laws and regulations.
7.1.8 FAYETTEVILLE, and ECO waive all rights against each other and their officers, directors,
agents, or employees for property damage covered by property insurance during and after the
completion of ECO's services. All construction Contractors shall be required to provide
waivers of subrogation in favor of FAYETTEVILLE and ECO for damage or liability
covered by any construction Contractor's policy of insurance. In addition, a provision similar
to this shall be incorporated into all Construction Subcontracts entered into by construction
Contractors and subcontractors with waivers of subrogation in favor of FAYETTEVILLE
and ECO for damage or liability covered by any construction Contractor's or subcontractor's
policy of insurance.
7.2 Professional Responsibility
7.2.1 ECO will exercise reasonable skill, care and diligence in the performance of ECO's services
and will carry out its responsibilities in accordance with customarily accepted environmental
consulting services ordinarily exercised by members of the same profession currently
practicing under similar circumstances. FAYETTEVILLE will promptly report to ECO any
defects or suspected defects in ECO's services of which FAYETTEVILLE becomes aware,
so that ECO can take measures to minimize the consequences of such a defect.
FAYETTEVILLE and ECO 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. FAYETTEVILLE retains all remedies to recover for its
damages caused by any negligence of ECO.
7.2.2 In addition ECO will be responsible to FAYETTEVILLE for damages caused by its
negligent conduct during its activities at the Project Site to the extent covered by ECO's
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Commercial General Liability and Automobile Liability Insurance policies as specified in
Paragraph 7.1.1.
7.2.3 ECO has no control of any regulatory control authority's subjectiveness in regulatory
interpretations, the dynamics of environmental regulations, nor the retroactiveness thereof.
Additionally, ECO has no control over any Contractor's implementation of BMPs or
compliance status and is therefore not responsible for maintaining compliance with terms and
conditions of any environmental regulatory permit. Observations and recommendations
made by ECO in no way guarantees or warranties compliance with environmental regulatory
requirements.
7.2.4 ECO shall visit the project site at appropriate intervals during construction to become
generally familiar with the progress and quality of the Contractors' work to determine if the
work is proceeding in general conformance with the applicable sections of the Bid
Documents pertaining to environmental regulatory requirements. FAYETTEVILLE has not
retained ECO to make detailed inspections or to provide exhaustive or continuous project
review and observation services. ECO does not guarantee the performance of, and shall have
no responsibility for, the acts or omissions of any Contractor, subcontractor, supplier, or any
other entity furnishing materials or performing any work on the project
7.2.5 If ECO for any reason does not complete the scope of services contemplated by this
Agreement, ECO cannot be responsible for the accuracy, completeness, or workability of the
any Bid Documents or Construction Phase documents prepared by ECO, if used, changed, or
completed by another party. Accordingly, FAYETTEVILLE agrees to the fullest extent
permitted by law, to indemnify and hold ECO harmless from any claim, liability, or cost
(including reasonable attorney's fees and defense costs) for injury or loss arising or allegedly
arising from such use, completion or any unauthorized changes made by any party to any
document prepared by ECO.
7.3 Changes
FAYETTEVILLE shall have the right to make changes within the general scope of ECO'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 FAYETTEVILLE and the President of ECO.
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7.4 Termination
7.4.1 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:
7.4.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, retum
receipt requested) of intent to terminate,
7.4.1.2 An opportunity for consultation with the terminating party prior to termination.
7.4.2 This Agreement may be terminated in whole or in part in writing by FAYETTEVILLE for
its convenience, provided that ECO is given:
7.4.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, retum
receipt requested) of intent to terminate,
7.4.2.2 An opportunity for consultation with the terminating party prior to termination.
7.4.3 If termination for default is effected by FAYETTEVILLE, an equitable adjustment in the
price provided for in this Agreement shall be made, but
7.4.3.1 No amount shall be allowed for anticipated profit on unperformed services or other work,
7.4.3.2 Any payment due to ECO at the time of termination may be adjusted to cover any
additional costs to FAYETTEVILLE because of ECO's default.
7.4.4 If termination for default is effected by ECO, or if termination for convenience is effected by
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 ECO for services rendered and expenses incurred prior to the termination, in
addition to termination settlement costs reasonably incurred by ECO relating to commitments
which had become firm prior to the termination.
7.4.5 Upon receipt of a termination action under Paragraphs 7.4.1 or 7.4.2 above, ECO shall:
7.4.5.1 Promptly discontinue all affected work (unless the Notice directs otherwise),
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7.4.5.2 Deliver or otherwise make available to FAYETTEVILLE all data, drawings,
specifications, reports, estimates, summaries and such other information and materials as
may have been accumulated by ECO in performing this Agreement, whether completed
or in process.
7.4.6 Upon termination under Paragraphs 7.4.1 or 7.4.2 above FAYETTEVILLE may take over
the work and may award another party an agreement to complete the work under this
Agreement.
7.4.7 If, after termination for failure of ECO to fulfill contractual obligations, it is determined that
ECO had not failed to fulfill contractual obligations, the termination shall be deemed to have
been for the convenience of FAYETTEVILLE. In such event, adjustments of the agreement
price shall be made as provided in Paragraph 7.4.4 of this clause.
7.5 Delays
In the event the services of ECO are suspended or delayed by FAYETTEVILLE or by other events
beyond ECO's reasonable control, ECO shall be entitled to additional compensation and time for
reasonable costs incurred by ECO in temporarily closing down or delaying the Project.
7.6 Rights and Benefits
ECO's services will be performed solely for the benefit of FAYETTEVILLE and not for the benefit of
any other persons or entities.
7.7 Dispute Resolution
7.7.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all disputes
between FAYETTEVILLE and ECO 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 FAYETTEVILLE or ECO in the
performance of this Agreement, and disputes concerning payment.
7.7.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 7.7.3, 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
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proper jurisdiction. until the procedures in Paragraphs 7.7.3 and 7.7.4 have been complied
with.
7.7.3 Notice of Dispute
7.7.3.1 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;
7.7.3.2 For disputes arising within one year after the making of final payment,
FAYETTEVILLE shall give ECO written Notice at the address listed in Paragraph 7.12
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.
7.7.4 Negotiation: Within seven days of receipt of the Notice, FAYETTEVILLE and ECO 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 ECO and
the Mayor 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.
7.8 FAYETTEVILLE represents that it has sufficient funds or the means of obtaining funds to
remit payment to ECO for services rendered by ECO.
7.9 Publications
Recognizing the importance of professional development on the part of ECO's employees and the
importance of ECO's public relations, ECO may prepare publications, such as technical papers, articles
for periodicals, and press releases, pertaining to ECO's services for the Project. Such publications will be
provided to FAYETTEVILLE in draft form for FAYETTEVILLE's advance review.
FAYETTEVILLE shall review such drafts promptly and provide FAYETTEVILLE's comments to
ECO. FAYETTEVILLE may require deletion of proprietary data or confidential information from such
publications, but otherwise FAYETTEVILLE will not unreasonably withhold approval. The cost of
ECO's activities pertaining to any such publication shall be for ECO's account.
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7.10 Indemnification
7.10.1 FAYETTEVILLE agrees that it will require all construction Contractors to indemnify,
defend, and hold harmless FAYETTEVILLE and ECO 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.
7.1 1 Ownership of Documents
All documents provided by FAYETTEVILLE including original drawings, disks ofCADD drawings
and cross sections, estimates, specification field notes, and data are and remain the property of
FAYETTEVILLE. ECO may retain reproduced copies of drawings and copies of other documents.
Documents, drawings, and specifications prepared by ECO as part of the Services shall become the
property of FAYETTEVILLE when ECO has been compensated for all Services rendered, provided,
however, that ECO shall have the unrestricted right to their use. ECO 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 ECO.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. ECO makes no warranty as to the compatibility of these files with
any other system or software. Because of the potential degradation of electronic medium over time, in the
event of a conflict between the sealed original drawings/hard copies and the electronic files, the sealed
drawings/hard copies will govern.
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7.12 Notices
Any Notice required under this Agreement will be in writing, addressed to the appropriate party at the
following addresses:
FAYETTEVILLE's address:
113 West Mountain
Fayetteville, Arkansas 72701
ECO's address
1313 Highway 229-5A
Benton, Arkansas 72015
7.13 Successor and Assigns
FAYETTEVILLE and ECO 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
FAYETTEVILLE nor ECO shall assign, sublet, or transfer his interest in the Agreement without the
written consent of the other.
7.14 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.
7.15 Entire Agreement
This Agreement represents the entire Agreement between ECO and FAYETTEVILLE relative to the
Scope of Services herein. Since terms contained in purchase orders do not generally apply to professional
services, in the event FAYETTEVILLE issues to ECO a purchase order, no preprinted terms thereon
shall become a part of this Agreement. Said purchase order document, whether or not signed by ECO,
shall be considered as a document for FAYETTEVILLE's intemal management of its operations.
SECTION 8 - SPECIAL CONDITIONS
8.1 Additional Responsibilities of ECO:
8.1.1 FAYETTEVILLE's review, approval, or acceptance of design drawings, specifications,
reports and other services furnished hereunder shall not in any way relieve ECO of
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responsibility for the technical adequacy of the work. FAYETTEVILLE's review, approval
or acceptance of, or payment for, any of the services shall not 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 ECO shall be and shall remain liable, in accordance with applicable law, for all damages to
FAYETTEVILLE caused by ECO's negligent performance of any of the services furnished
under this Agreement except for errors, omissions or other deficiencies to the extent
attributable to FAYETTEVILLE or FAYETTEVILLE-furnished data.
8.1.3 ECO's obligations under this clause are in addition to ECO's other express or implied
assurances under this Agreement or State law and in no way diminish any other rights that
FAYETTEVILLE may have against ECO for faulty materials, equipment, or work.
8.2 Remedies
Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes and other
matters in question between FAYETTEVILLE and ECO 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 ECO 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. ECO shall also maintain the financial information and data used by ECO in
the preparation of support of the cost submission required for any negotiated agreement or
change order and send to 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, 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.
ECO 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
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arising out of such performance, or to costs or items to which an audit exception has been
taken, shall be maintained and made available until three years after the date of resolution of
such appeal, litigation, claim or exception.
8.3.3 This right of access clause (with respect to financial records) applies to:
8.3.3.1 Negotiated prime agreements:
8.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting the
price of any formally advertised, competitively awarded, fixed price agreement:
8.3.3.3 Agreements or purchase orders under any agreement other than a formally advertised,
competitively awarded, fixed price agreement. However, this right of access does not
apply to a prime agreement, lower tier subagreement or purchase order awarded after
effective price competition, except:
8.3.3.3.1 With respect to record pertaining directly to subagreement performance, excluding
any financial records of ECO;
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
ECO 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
ECO for the purpose of securing business. For breach or violation of this warranty, 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 FAYETTEVILLE finds after a notice and hearing that ECO or any of ECO's agents or
representatives, offered or gave gratuities (in the form of entertainment, gifts or otherwise) to
any official, employee or agent of FAYETTEVILLE, the State or EPA in an attempt to
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