HomeMy WebLinkAbout154-06 RESOLUTIONRESOLUTION NO. 154-06
A RESOLUTION APPROVING A CONTRACT WITH GARVER
ENGINEERS, LLC IN AN AMOUNT NOT TO EXCEED $320,050.00
FOR TRAFFIC STUDIES, DESIGN SURVEYS, AND CONCEPTUAL
DESIGN SERVICES.FOR MOUNT ,COMFORT ROAD FROM I-540
TO RUFFLE ROAD
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby
approves a Contract with Garver Engineers, LLC m an amount not to exceed $320,050.00
for traffic studies, design surveys, and conceptual design services for Mount Comfort
Road from I-540 to Rupple Road. A copy of the Contract, marked Exhibit "A," is
attached hereto and made a part hereof. etRK IP,41;'',
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;FAYETTEVILLE •
PASSED and APPROVED this 19th day of September, 2006.
APPROVED: ATTEST:
By:
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By: ice
DAN COODY, Mayor SONDRA SMITH, City Clerk
AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
GARVER ENGINEERS, LLC
THIS AGREEMENT is made as of Sr. Q n1hQI'' q , 2006, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and Garver Engineers, LLC with offices located in Fayetteville (hereinafter called GARVER).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the planning, design, permitting, and construction of roadways within the City of Fayetteville, and in
particular, engineering and surveying services related to proposed improvements to Mount Comfort
Road from Interstate 540 to Rupple Road, or as further described in Appendix A. Therefore, CITY
OF FAYETTEVILLE and GARVER in consideration of their mutual covenants agree as follows:
GARVER shall serve as CITY OF FAYEI 1 EVILLE's professional engineering consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYETTEVILLE during the performance of GARVER's services. All services shall be performed under
the direction of a professional engineer registered in the State of Arkansas and qualified in the particular
field. If Construction Phase Services are to be provided by GARVER under this Agreement, the
construction shall be executed under the observation of a professional engineer registered in the State of
Arkansas in accordance with Arkansas Code Amended §22-9-101.
SECTION 1 - AUTHORIZATION OF SERVICES
1.1
Services on any assignment shall be undertaken only upon written Authorization of CITY
OF FAYETTEVILLE and agreement of GARVER. Assignments may include services
described hereafter as Basic Services or as Additional Services of GARVER.
1.2 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City
Council in advance of the change in scope, costs, fees, or delivery schedule.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
1 of 22 Mount Comfort Road
SECTION 2 - BASIC SERVICES OF GARVER
2.1 General
2.1.1 Perform professional design services in connection with the Project as hereinafter
stated, which shall include normal civil engineeringservices, surveying services,
and support incidental thereto.
2.1.1.1 The Scope of Services to be furnished by GARVER during the Schematic
Study and Concept Design Phases are included in Section 2.2 hereafter and in
Appendix A attached hereto and made part of this Agreement.
2.1.1.2 The Scope of Services to be furnished by GARVER during the remainder of
the Design Phase will be negotiated in full and added by an amendment to this
Agreement.
2.1.1.3 The Scope of Services to be furnished by GARVER during the Bidding Phase
will be negotiated in full and added by an amendment to this Agreement.
2.1.1.4 The Scope of Services to be furnished by GARVER during the Construction
Phase will be negotiated in full and added by an amendment to this Agreement.
2.1.2 Execution of this agreement will authorize the Engineer to proceed with the services
as described herein.
2.2 Design Services
2.2.1 GARVER will perform engineering and related services in order to prepare Concept
Drawings and related services as described in Appendix A.
2.2.1.1 Text documents shall be provided to CITY OF FAYETTEVILLE in
MicrosoftaD Word version 2000 or later software. Contract drawings shall be
prepared using Garver standard borders, sheet sizes, title blocks and CADD
standards. GARVER may use their normal software for the preparation of
drawings but the final product shall be provided to CITY OF
FAYETTEVILLE in Autodesk° AutoCAD version 2000 or later.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
2 of 22 Mount Comfort Road
2.2.1.2 Develop and include in Appendix A of this Agreement for approval by CITY
OF FAYETTEVILLE, a project design schedule in which GARVER shall
include, in an acceptable level of detail, the steps and milestone dates to be
undertaken by GARVER in the completion of this design. This Schedule shall
include reasonable allowances for review and approval times required by CITY
OF FAYETTEVILLE, performance of services by CITY OF
FAYETTEVILLE's consultants, and review and approval times required by
public authorities having jurisdiction over the Project. This schedule shall be
equitably adjusted as the Project progresses, allowing for changes in scope,
character or size of the Project requested by CITY OF FAYETTEVILLE, or
for delays or other causes beyond GARVER's reasonable control. 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 Street Committee meetings and one City Council
meeting to provide support for the project.
2.2.1.4 The Engineer will coordinate and conduct a public meeting and request all
local utilities be present. The Engineer's exhibits for this public meeting will
address the City's Conceptual Design comments. The exhibits will include a
current set of full-sized Plans and foam display boards at a 1"=20' scale,
utilizing aerial photographs and property information.
2.2.1.5 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.
2.2.1.6 Incorporate into all subcontract agreements for planning and design
engineering services the applicable milestone dates from the performance
schedule contained in Appendix A.
2.2.2 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.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
3 of 22 Mount Comfort Road
2.2.3 The Scope of Services to be furnished by GARVER during the remainder of the
Design Phase (beyond Concept Design) will be negotiated in full and added by an
amendment to this Agreement.
2.3 Bidding Phase
2.3.1 The scope of Bidding Phase Services will be described in detail in a future
amendment to this Agreement.
2.4 Construction Phase
2.4.1 The scope of Construction Phase Services will be described in detail in a future
amendment to this Agreement.
SECTION 3 - ADDITIONAL SERVICES OF GARVER
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by GARVER, GARVER shall furnish or obtain from others Additional Services of the following
types that are not considered normal or customary Basic Services. The scope of Additional Services may
include:
3.1.1 Financial Consultation
Consult with CITY OF FAYETTEVILLE's fiscal agents and bond attorneys and
provide such engineering data as required for any bond prospectus or other financing
requirements.
3.1.2 Administrative Assistance
Provide Contract and Project administration to the degree authorized by CITY OF
FAYETTEVILLE.
3.1.3 Furnishing renderings or models of the Project for CITY OF FAYETTEVILLE's use.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
4 of 22 Mount Comfort Road
3.1.4 Miscellaneous Studies
Investigations involving detailed consideration of operations, maintenance, and overhead expenses, and
the preparation of rate schedules, eamings, 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.
3.1.5 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in any
litigation or other proceeding involving the Project.
3.1.6 Extra Services
3.1.6.1 Services not specifically defined heretofore that may be authorized by CITY OF
FAYETTEVILLE.
3.2 Contingent Additional Services
3.2.1 If services described under Contingent Additional Services in Paragraph 3.2 are
required due to circumstances beyond GARVER's control, GARVER shall notify
CITY OF FAYETTEVILLE and request a formal contract amendment approved by the
Mayor and the City Council prior to commencing such services. If CITY OF
FAYETTEVILLE deems that such services described in 3.2 are not required, CITY OF
FAYETTEVILLE shall give prompt written notice to GARVER. If CITY OF
FAYETTEVILLE indicates in writing that all or parts of such Contingent Additional
Services are not required, GARVER shall have no obligation to provide those services.
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 FAYE 1 1 EVILLE 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.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
5 of 22 Mount Comfort Road
SECTION 4 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of 'GARVER:
4.1 Provide aerial mapping for GARVER's use.
4.2 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.3 Assist GARVER by placing at GARVER's disposal all available information pertinent to
the assignment including previous reports and any other data relative thereto.
4.4 Guarantee access to and make all provisions for GARVER to enter upon public and
private property as required for GARVER to perform his services under this Agreement.
4.5 Examine all studies, reports, sketches, cost opinions, drawings, proposals, and other
documents presented by GARVER and render in writing decisions pertaining thereto.
4.6 Provide such professional legal, accounting, financial, and insurance counseling services
as may be required for the Project.
4.7 Designate in writing a person to act as CITY OF FAYETTEVILLE's representative with
respect to the services to be performed under this Agreement. Such person shall have
complete authority to transmit instructions, receive information, interpret and define
CITY OF FAYETTEVILLE's policies and decisions with respect to materials,
equipment, elements and systems to be used in the Project, and other matters pertinent to
the services covered by this Agreement.
4.8 Give prompt written notice to GARVER whenever CITY OF FAYETTEVILLE observes
or otherwise becomes aware of any defect in the Project.
4.9 Furnish approvals and permits from all govemmental authorities having jurisdiction over
the Project and such approvals and consents from others as may be necessary for
completion of the Project. Pay directly to the governmental authorities the actual filing
and permit fees. Unless otherwise described in the attached Scope of Work.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
6 of 22 Mount Comfort Road
4.10 Pay for placement of legal notices and advertisements in newspapers or other
publications.
4.11 Furnish, or direct GARVER to provide, necessary Additional Services as stipulated in
Section 3 of this Agreement or other services as required.
CITY OF FAYETTEVILLE and/or its representative will review all documents and provide written
comments to GARVER in a timely manner.
SECTION 5 - PERIOD OF SERVICE
5.1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
5.2 The provisions of this Agreement have been agreed to in anticipation of the orderly
progress of the Project through completion of the services stated in the Agreement.
GARVER will proceed with providing the authorized services immediately upon receipt
of written authorization from CITY OF FAYETTEVILLE. Said authorization shall
include the scope of the services authorized and the time in which the services are to be
completed.
SECTION 6 - PAYMENTS TO GARVER
6.1 Compensation
CITY OF FAYETTEVILLE shall pay GARVER an amount not to exceed $320,050 in accordance with
the provisions described in the following paragraphs.
6.1.1 Traffic Studies, Schematic Study, Design Surveys, and Conceptual Design
For the Traffic Studies, Schematic Study, Design Surveys, and Conceptual Design described herein,
CITY OF FAYETTEVILLE shall pay GARVER for time spent on the project at the rates shown in
attached Appendix A-2 for each classification of GARVER's personnel. In addition, reimbursable
expenses, including but not limited to printing, courier service, reproduction, and travel will be billed. The
total amount paid to GARVER under this agreement for these phases will not exceed $279,700. For
informational purposes, a breakdown of GARVER's estimated costs is included in Appendix A-2. The
rates shown in Appendix A-2 will be increased annually with the first increase effective on or about May
1, 2007.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
7 of 22 Mount Comfort Road
6.1.2 Property Surveys and Property Acquisition Documents
For Property Surveys and Property Acquisition Documents, CITY OF FAYETTEVILLE shall pay
GARVER an amount to be negotiated at a later date.
6.1.3 Geotechnical Services and ARKUPS
For Geotechnical Services, CITY OF FAYETTEVILLE shall pay GARVER a lump sum. amount which
will be negotiated with Grubbs, Hoskyn, Barton & Wyatt or other consultant, as a subconsultant to the
Engineer, and approved by CITY OF FAYETTEVILLE. For Utility Marking Services, CITY OF
FAYETTEVILLE shall pay GARVER a lump sum amount which will be negotiated with ARKUPS, as a
subconsultant to the Engineer. The combined fee for Geotechnical Services and ARKUPS is estimated to
be approximately 540,350, but may exceed this estimate.
6.1.4 Preliminary Design
For the Preliminary Design described herein, CITY OF FAYETTEVILLE shall pay GARVER an amount
to be negotiated at a later date.
6.1.5 Final Des
8n
For the Final Design described herein, CITY OF FAYETTEVILLE shall pay GARVER an amount to be
negotiated at a later date.
6.1.6 Bidding Services
For the Bidding Services described herein, CITY OF FAYETTEVILLE shall pay GARVER an amount to
be negotiated at a later date
6.1.7 Construction Phase Services
For the Construction Phase, CITY OF FAYETTEVILLE shall pay GARVER an amount to be negotiated
at a later date
6.1.8 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services', compensation to
GARVER shall be negotiated at the time Additional services are authorized.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
8 of 22 Mount Comfort Road
6.2 Statements
Monthly statements for each calendar month shall be submitted to CITY OF FAYETTEVILLE or such
parties as CITY OF FAYETTEVILLE may designate consistent with GARVER's normal billing
schedule. Once established, the billing schedule shall be maintained throughout the duration of the
Project. Applications for payment shall be made in accordance with a format to be developed by
GARVER and approved by CITY OF FAYETTEVILLE.
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of GARVER's
statement is disputed by CITY OF FAYETTEVILLE, the undisputed portion shall be paid by CITY OF
FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE shall advise GARVER in writing of the
basis for any disputed portion of any statement. CITY OF FAYETTEVILLE will make reasonable effort
to pay invoices within 30 days of date the invoice is approved, however, payment within 30 days is not
guaranteed.
6.4 Final Payment
Upon satisfactory completion of the work performed under this Agreement, as a condition before final
payment under this Agreement, or as a termination settlement under this Agreement, GARVER shall
execute and deliver to CITY OF FAYETTEVILLE a release of all claims against CITY OF
FAYETTEVILLE arising under or by virtue of this Agreement, except claims which are specifically
exempted by GARVER to be set forth therein. Unless otherwise provided in this Agreement or by State
law or otherwise expressly agreed to by the parties to this Agreement, final payment under this
Agreement or settlement upon termination of this Agreement shall not constitute a waiver of CITY OF
FAYETTEVILLE's claims against GARVER or his sureties under this Agreement or applicable
performance and payment bonds, if any. Final payment for each phase of services shall be made upon
CITY OF FAYETTEVILLE's approval and acceptance with the satisfactory completion of each phase for
the Project.
6.5 Fee Changes
Subject to the City Council approval, adjustment of the NTE amounts may be made should GARVER
establish and CITY OF FAYETTEVILLE agree that there has been or is to be a significant change in
scope, complexity or character of the services to be performed; or if CITY OF FAYETTEVILLE decides
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
9 of 22 Mount Comfort Road
to shorten the duration of work from the time period specified in the Agreement for completion of work
and such modification warrants such adjustment. Changes. modifications or amendments in scope, price
or fees to this Contract, unless noted herein, shall not be allowed without formal contract amendment
approved by the Mayor and the City Council in advance of the change in scope, cost, fees, or delivery
schedule.
Any unused portion of the fees, not billable due to delays beyond the Engineer's control, will be
increased 6% annually with the first increase effective on or about May 1, 2007.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, GARVER will maintain (in United
States Dollars) the following minimum insurance coverages:
Type of Coverage
Workers' Compensation
Employers' Liability
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
Professional Liability Insurance
Limits of Liability
Statutory
$500.000 Each Accident
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
$1,000,000 Each Claim
GARVER will provide to CITY OF FAYETTEVILLE certificates as evidence of the specified insurance
within ten days of the date of this Agreement and upon each renewal of coverage.
7.1.2 Construction Contractors shall be required to provide (or CITY OF FAYETTEVILLE
may provide) Owner's Protective Liability Insurance naming CITY OF
FAYETTEVILLE as a Named Insured and GARVER as additional insureds, or, to
endorse CITY OF FAYETTEVILLE and GARVER ENGINEERS as additional
insureds on construction Contractor's liability insurance policies covering claims for
personal injuries and property damage. Construction Contractors shall be required to
provide certificates evidencing such insurance to CITY OF FAYETTEVILLE and
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
10 of 22 Mount Comfort Road
GARVER. All contract insurance carriers shall be required to list GARVER and CITY
OF FAYETTEVILLE as certificate holders, furnishing copies of the contractor's
insurance certificate to each party.
7.1.3 CITY OF FAYETTEVILLE and GARVER waive all rights against each other and their
officers, directors, agents, or employees for damage covered by property insurance
during and after the completion of GARVER's services. A provision similar to this
shall be incorporated into all Construction Contracts entered into by CITY OF
FAYETTEVILLE, and all construction Contractors shall be required to provide
waivers of subrogation in favor of CITY OF FAYE 1 1 EVILLE and GARVER for
damage or liability covered by any construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 GARVER will exercise reasonable skill, care, and diligence in the performance of
GARVER's services and will carry out its responsibilities in accordance with
customarily accepted professional engineering practices. CITY OF FAYETTEVILLE
will promptly report to GARVER any defects or suspected defects in GARVER's
services of which CITY OF FAYETTEVILLE becomes aware, so that GARVER can
take measures to minimize the consequences of such a defect. CITY OF
FAYETTEVILLE and GARVER further agree to impose a similar notification
requirement on all construction contractors in the Bid Documents and shall require all
subcontracts at any level to contain a like requirement. CITY OF FAYETTEVILLE
retains all remedies to recover for its damages caused by any negligence of GARVER.
7.2.2 In addition GARVER will be responsible to CITY OF FAYETTEVILLE for damages
caused by its negligent conduct during its activities at the Project Site to the extent
covered by GARVER's Commercial General Liability and Automobile Liability
Insurance policies as specified in Paragraph 7.1.1.
7.3 Cost Opinions and Projections
Cost opinions and projections prepared by GARVER relating to construction costs and schedules,
•
operation and maintenance costs, equipment characteristics and performance, and operating results are
based on GARVER's experience, qualifications, and judgment as a design professional. Since GARVER
has no control over weather, cost and availability of labor, material and equipment, labor productivity,
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
11 of 22 Mount Comfort Road
construction Contractors' procedures and methods, unavoidable delays, construction Contractors'
methods of determining prices, economic conditions. competitive bidding or market conditions, and other
factors affecting such cost opinions or projections, GARVER does not guarantee that actual rates, costs,
performance, schedules, and related items will not vary from cost opinions and projections prepared by
GARVER.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of GARVER's
services, with an appropriate change in compensation and schedule only after Fayetteville City Council
approval of such proposed changes and, upon execution of a mutually acceptable amendment or change
order signed by the Mayor of the CITY OF FAYETTEVILLE and the President or any Vice President of
GARVER.
7.5 Termination
7.5.1 This Agreement may be terminated in whole or in part in writing by either party in the
event of substantial failure by the other party to fulfill its obligations under this
Agreement through no fault of the terminating party, provided that no termination may
be effected unless the other party is given:
7.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, retum
receipt requested) of intent to terminate,
7.5.1.2 An opportunity for consultation with the terminating party prior to termination.
7.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that GARVER is given:
7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, retum
receipt requested) of intent to terminate,
7.5.2.2 An opportunity for consultation with the terminating party prior to termination.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
12 of 22 Mount Comfort Road
7.5.3 If termination for default is effected by CITY OF FAYETTEVILLE, an equitable
adjustment in the price provided for in this Agreement shall be made, but
7.5.3.1 No amount shall be allowed for anticipated profit on unperformed services or other
work,
7.5.3.2 Any payment due to GARVER at the time of termination may be adjusted to cover
any additional costs to CITY OF FAYETTEVILLE because of GARVER's default.
7.5.4 If termination for default is effected by GARVER, or if termination for convenience is
effected by CITY OF FAYETTEVILLE, the equitable adjustment shall include a
reasonable profit for services or other work performed. The equitable adjustment for
any termination shall provide for payment to GARVER for services rendered and
expenses incurred prior to the termination, in addition to termination settlement costs
reasonably incurred by GARVER relating to commitments which had become firm
prior to the termination.
7.5.5 Upon receipt of a termination action under Paragraphs 7.5.1 or 7.5.2 above, GARVER
shall:
7.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
7.5.5.2 Deliver or otherwise make available to CITY OF FAYETTEVILLE all data,
drawings, specifications, reports, estimates, summaries and such other information
and materials as may have been accumulated by GARVER in performing this
Agreement, whether completed or in process.
7.5.6 Upon termination under Paragraphs 7.5.1 or 7.5.2 above CITY OF FAYETTEVILLE
may take over the work and may award another party an agreement to complete the
work under this Agreement.
7.5.7 If, after termination for failure of GARVER to fulfill contractual obligations, it is
determined that GARVER had not failed to fulfill contractual obligations, the
termination shall be deemed to have been for the convenience of CITY OF
FAYETTEVILLE In such event, adjustments of the agreement price shall be made as
provided in Paragraph 7.5.4 of this clause.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
13 of 22 Mount Comfort Road
7.6 Delays
In the event the services of GARVER are suspended or delayed by CITY OF FAYETTEVILLE or by
other events beyond GARVER's reasonable control, GARVER shall be entitled to additional
compensation and time for reasonable costs incurred by GARVER in temporarily closing down or
delaying the Project,
7.7 Rights and Benefits
GARVER's services will be performed solely for the benefit of CITY OF 'FAYETTEVILLE and not for
the benefit of any other persons or entities.
7.8 Dispute Resolution
7.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all
disputes between CITY OF FAYETTEVILLE and GARVER which arise from, or in
any way are related to, this Agreement, including, but not limited to the interpretation
of this Agreement, the enforcement of its terms, any acts, errors, or omissions of CITY
OF FAYETTEVILLE or GARVER in the performance of this Agreement, and disputes
concerning payment.
7.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first
negotiate. If timely Notice is given under Paragraph 7 8 3, but an action is initiated
prior to exhaustion of these procedures, such action shall be stayed, upon application
by either party to a court of proper jurisdiction, until the procedures in Paragraphs 7.8.3
and 7.8.4 have been complied with.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising prior to the making of final payment promptly after the
occurrence of any incident, action, or failure to act upon which a claim is based, the
party seeking relief shall serve the other party with a written Notice;
7.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give GARVER written Notice at the address listed in
Paragraph 7.14 within thirty (30) days after occurrence of any incident, accident, or
first observance of defect or damage. In both instances, the Notice shall specify the
Contract— Prime Agreement
GARVER — CITY OF FAYETTEVILLE
14 of 22 Mount Comfort Road
•
nature and amount of relief sought, the reason relief should be granted, and the
appropriate portions of this Agreement that authorize the relief requested.
7.8.4 Negotiation: Within seven days of receipt of the Notice, the Project Managers for
CITY OF FAYETTEVILLE and GARVER shall confer in an effort to resolve the
dispute. If the dispute cannot be resolved at that level, then, upon written request of
either side, the matter shall be referred to the President of GARVER and the Mayor of
CITY OF FAYETTEVILLE or his designee. These officers shall meet at the Project
Site or such other location as is agreed upon within 30 days of the written request to
resolve the dispute.
7.9 CITY OF FAYETTEVILLE represents that it has sufficient funds or the means of
obtaining funds to remit payment to GARVER for services rendered by GARVER.
7.10 Publications
Recognizing the importance of professional development on the part of GARVER's employees and the
importance of GARVER's public relations, GARVER may prepare publications, such as technical papers,
articles for periodicals, and press releases, pertaining to GARVER's services for the Project. Such
publications will be provided to CITY OF FAYETTEVILLE in draft form for CITY OF
FAYETTEVILLE's advance review. CITY OF FAYETTEVILLE shall review such drafts promptly and
provide CITY OF FAYETTEVILLE's comments to GARVER. CITY OF FAYETTEVILLE may require
deletion of proprietary data or confidential information from such publications, but otherwise CITY OF
FAYETTEVILLE will not unreasonably withhold approval. The cost of GARVER's activities pertaining
to any such publication shall be for GARVER's account.
7.11 Indemnification
7.1 1.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE and GARVER from
and against any and all loss where loss is caused or incurred or alleged to be caused or
incurred in whole or in part as a result of the negligence or other actionable fault of the
Contractors, or their employees, agents, Subcontractors, and Suppliers.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
15 of 22 Mount Comfort Road
7.12 Computer Models
GARVER may use or modify GARVER's proprietary computer models in service of CITY OF
FAYETTEVILLE under this Agreement, or GARVER may develop computer models during GARVER's
service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or development by
GARVER does not constitute a license to CITY OF FAYETTEVILLE to use or modify GARVER's
computer models. Said proprietary computer models shall remain the sole property of the GARVER.
CITY OF FAYETTEVILLE and GARVER will enter into a separate license agreement if CITY OF
FAYETTEVILLE wishes to use GARVER's computer models.
7.13 Ownership of Documents
All documents provided by CITY OF FAYETTEVILLE including original drawings, disks of CADD
drawings and cross sections, estimates, specification field notes, and data are and remain the property of
CITY OF FAYETTEVILLE. GARVER may retain reproduced copies of drawings and copies of other
documents.
Engineering documents, drawings, and specifications prepared by GARVER as part of the Services shall
become the property of CITY OF FAYETTEVILLE when GARVER has been compensated for all
services rendered, provided, however, that GARVER shall have the unrestricted right to their use.
GARVER shall, however, retain its rights in its standard drawings details, specifications, databases,
computer software, and other proprietary property. Rights to intellectual property developed, utilized, or
modified in the performance of the Services shall remain the property of GARVER.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. GARVER makes no warranty as to the compatibility of these files
with any other system or software. Because of the potential degradation of electronic medium over time,
in the event of a conflict between the sealed original drawings/hard copies and the electronic files, the
sealed drawings/hard copies will 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, PE
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
16 of 22 Mount Comfort Road
113 West Mountain
Fayetteville AR 72701
GARVER's address:
Garver Engineers: Attn: Brock Hoskins, PE
1088 East Millsap Road
Fayetteville AR 72703
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and GARVER each binds himself and his successors, executors,
administrators, and assigns to the other party of this Agreement and to the successors, executors,
administrators, and assigns of such other party, in respect to all covenants of this Agreement; except as
above, neither CITY OF FAYETTEVILLE nor GARVER shall assign, sublet, or transfer his interest in
the Agreement without the written consent of the other.
7.16 Controlling Law
This Agreement shall be subject to, interpreted and enforced according to the laws of the State of
Arkansas without regard to any conflicts of law provisions.
7.17 Entire Agreement
This Agreement represents the entire Agreement between GARVER and CITY OF FAYETTEVILLE
relative to the Scope of Services herein. Since terms contained in purchase orders do not generally apply
to professional services, in the event CITY OF FAYETTEVILLE issues to GARVER a purchase order,
no preprinted terms thereon shall become a part of this Agreement. Said purchase order document,
whether or not signed by GARVER, shall be considered as a document for CITY OF FAYETTEVILLE's
internal management of its operations.
SECTION 8 - SPECIAL CONDITIONS
8.1 Additional Responsibilities of GARVER:
8.1.1 CITY OF FAYETTEVILLE's review, approval, or acceptance of design drawings,
specifications, reports and other services furnished hereunder shall not in any way
relieve GARVER of responsibility for the technical adequacy of the work. Neither
CITY OF FAYETTEVILLE's review, approval or acceptance of, nor payment for any
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
17 of 22 Mount Comfort Road
of the services shall be construed as a waiver of any rights under this Agreement or of
any cause of action arising out of the performance of this Agreement.
8.1.2 GARVER shall be and shall remain liable, in accordance with applicable law, for all
damages to CITY OF FAYETTEVILLE caused by GARVER's negligent ;performance
of any of the services furnished under this Agreement except for errors, omissions or
other deficiencies to the extent attributable to CITY OF FAYETTEVILLE or CITY OF
FAYETTEVILLE-famished data.
8.1.3 GARVER's obligations under this clause are in addition to GARVER's other express
or implied assurances under this Agreement or State law and in no way diminish any
other rights that CITY OF FAYETTEVILLE may have against GARVER 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 CITY OF FAYETTEVILLE and GARVER arising out of or relating to this
Agreement or the breach thereof will be decided in a court of competentjurisdiction within Arkansas.
8.3 Audit: Access to Records
8.3.1 GARVER 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. GARVER shall also maintain the financial
information and data used by GARVER 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 FAYE F1 EVILLE, 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. GARVER will provide proper facilities for such access and
inspection.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
18 of 22 Mount Comfort Road
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 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 GARVER;
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
GARVER 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 GARVER 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.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
19 of 22 Mount Comfort Road
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