HomeMy WebLinkAbout209-06 RESOLUTION44 rd
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RESOLUTION NO. 209-06
A RESOLUTION AWARDING AN ENGINEERING CONTRACT
TO MCCLELLAND CONSULTING ENGINEERS, INC. IN AN
AMOUNT NOT TO EXCEED $108,111.40 FOR PRELIMINARY
DESIGN SERVICES, SURVEYS, AND RELATED SERVICES
ASSOCIATED WITH THE COLLEGE AVENUE IMPROVEMENT
PROJECT.
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 engineering contract to McClelland Consulting Engineers, Inc.
in an amount not to exceed $108,111.40 for preliminary design services, surveys,
and related services associated with the College Avenue Improvement Project.
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SONDRA SMIT , City Clerk
PASSED and APPROVED this 5th day of December, 2006.
APPROVED: ATTEST:
DAN COODY, Mayor
AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
MCCLELLAND CONSULTING ENGINEERS, INC.
THIS AGREEMENT is made as of iMg0-06 by and between City of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYE 1 1 EVILLE) and
McClelland Consulting Engineers, Inc. with offices Located in Fayetteville, AR (hereinafter called MCE).
CITY OF FAYETTEVILLE requires professional engineering services in connection with the limited
surveying, planning, and design of College Avenue Improvements — Phase I — from Rock Street to
Maple Street (The "Project"), or as further described in Appendix A. Therefore, CITY OF
FAYETTEVILLE and MCE in consideration of their mutual covenants agree as follows:
MCE shall serve as CITY OF FAYETTEVILLE's professional engineering consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYE 1 1 EVILLE during the performance of MCE'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 MCE 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
MCE.Assignments may include services described hereafter as Basic
Services or as Additional Services of MCE.
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.
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 1 of 28 Contract — Prime Agreement
SECTION 2 - BASIC SERVICES OF MCE GENERAL
2.1.1 Perform professional design services in connection with the Project as
hereinafter stated, which shall include normal civil, structural, and surveying
services.
2.1.1.1 The Scope of Services to be furnished by MCE during the Preliminary
Design Phase is included in Section 2.2 hereafter and in Appendix A
attached hereto and made part of this Agreement.
2.1.1.2 The Scope of Services to be famished by MCE during the remainder of
the Design Phase including easement / right-of-way acquisition services
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 MCE 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 MCE 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
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2.2.1 MCE will perform engineering and related services in order to prepare
Preliminary Drawings and related services as described in Appendix A.
2 2 1 1 Text documents shall be provided to CITY OF FAYETTEVILLE in
Microsoft® Word version 2000 or later software. Contract drawings shall
be prepared using standard borders, sheet sizes, title blocks and CADD
standards provided by CITY OF FAYETTEVILLE. MCE 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 2004 or later.
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 2 of 28 Contract — Prime Agreement
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 MCE
shall include, in an acceptable level of detail, the steps and milestone
dates to be undertaken by MCE 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
MCE'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 Street Committee meetings and a City Council
meeting to provide support for the project.
2.2.2 Provide through contract amendments services or data such as geotechnical
investigations, core borings, probings and subsurface explorations,
hydrographic surveys, laboratory tests, and inspections of samples, materials,
and equipment as necessary for authorized Project services including
appropriate professional interpretations of all the foregoing; property,
boundary, easement, right-of-way, topographic, and utility surveys; noting
zoning and deed restrictions.
2.2.2.1 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.
2.2.2.2 Incorporate into all subcontract agreements for planning and design
engineering services the applicable milestone dates from the Submittal
Schedule and the CITY OF FAYETTEVILLE and require all MCE
subconsultants to be bound by the Submittal Schedule.
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 3 of 28 Contract — Prune Agreement
2.2.3 Design shall be reviewed by CITY OF FAYETTEVILLE, or such parties as
CITY OF FAYETTEVILLE shall designate, at completion of preliminary
(30% complete) and final (90% complete) plans. Interim reviews may be
performed at the request of MCE or the CITY OF FAYETTEVILLE in
order to facilitate completion of the project.
2.2.4 The Scope of Services to be furnished by MCE during the remainder of the
Design Phase (beyond Preliminary 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 MCE
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by MCE, MCE 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.
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 4 of 28 Contract — Prime Agreement
3.1.3 Furnishing renderings or models of the Project for CITY OF
FAYETTEVILLE's use.
3.1.4 Miscellaneous Studies
Investigations involving detailed consideration of operations, maintenance,
and overhead expenses, and the preparation of rate schedules, earnings, and
expense statements; feasibility studies; appraisals and valuations; detailed
quantity surveys of material, equipment, and labor; and audits or inventories
required in connection with construction performed by CITY OF
FAYETTEVILLE.
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3.1.5 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in
any litigation or other proceeding involving the Project
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3.1.6 Extra Services
3.1.6.1* Services not specifically defined heretofore that may be authorized by
CITY OF FAYETTEVILLE.
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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 MCE's control, MCE shall notify
CITY OF FAYEI 1'EVILLE 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 FAYEl 1EVILLE shall give prompt
written notice to MCE. If CITY OF FAYETTEVILLE indicates in writing
that all or parts of such Contingent Additional Services are not required,
MCE shall have no obligation to provide those services.
College Avenue Improvements — Phase I
Rock Street to Maple Street
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Page 5 of 28 Contract — Prime Agreement
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3.2.2 Making revisions in Drawings, Specifications, or other documents when such
revisions are:
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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 FAYETTEV I LE'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 MCE:
4.1 Provide aerial mapping for MCE's use.
4.2 Provide full information as to CITY OF FAYETTEVILLE's requirements
for the Project.
4.3 Assist MCE by placing at MCE'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 MCE to enter upon public
and private property as required for MCE to perform his services under this
Agreement.
4.5 Examine all studies, reports, sketches, cost opinions, Bid Documents,
Drawings, proposals, and other documents presented by MCE 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
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 6 of 28 Contract — Prime Agreement
Agreement. Such person shall have complete authority to transmit
instructions, receive information, interpret and define CITY OF
FAYEI IEVILLE'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 MCE whenever CITY OF FAYETTEVILLE
observes or otherwise becomes aware of any defect in the Project.
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.
4.10 Pay for placement of legal notices and advertisements in newspapers or other
publications required by program requirements.
4.11 Furnish, or direct MCE to provide, necessary Additional Services as
stipulated in Section 3 of this Agreement or other services as required.
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 MCE's use in coordinating the
Contract Drawings and Specifications.
4.13 CITY OF FAYETTEVILLE and/or its representative will review all
documents and provide written comments to MCE 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. MCE will proceed with providing the authorized services
immediately upon receipt of written authorization from CITY OF
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 7 of 28 Contract — Prime Agreement
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 MCE
6.1 Compensation
For the Scope of Services during described herein, CITY OF FAYETTEVILLE shall pay MCE an
amount not to Exceed the sum amount of $108,111.40 United States Dollars (US $108,111.40) in
accordance with the provisions described in the following paragraphs.
6.1.1 Design Surveys and Preliminary Design Services
For design surveys and preliminary design services to be performed by MCE, CITY OF
FAYETTEVILLE shall pay MCE for time spent on the project at the rates shown in attached Appendix
A-2 for each classification of MCE personnel, and for reimbursable expenses. The rates shown in
Appendix A-2 will be increased annually with the first increase effective on or about March 1, 2007.
6.1.2 Property Surveys and Property Acquisition Documents
For Property Surveys and Property Acquisition Documents, CITY OF FAYETTEVILLE shall pay MCE
an amount to be negotiated at a later date.
6.1.3 Final Design
The scope of the Final Design shall be determined at a later date. For the Final Design described herein,
CITY OF FAYETTEVILLE shall pay MCE an amount to be negotiated at a later date.
6.1.4 Bidding Services
For the Bidding Services described herein, CITY OF FAYETTEVILLE shall pay MCE an amount to be
negotiated at a later date.
6.1.5 Construction Phase Services
For the Construction Phase Services described herein, CITY OF FAYETTEVILLE shall pay MCE an
amount to be negotiated at a later date.
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 8 of 28 Contract — Prime Agreement
6.1.6 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services", compensation to
MCE shall be negotiated at the time Additional services are authorized.
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 MCE'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 MCE 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 MCE'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 MCE 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, MCE 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 MCE 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 MCE or his sureties under this Agreement or applicable performance and payment bonds, if any.
College Avenue Improvements Phase I
Rock Street to Maple Street
Page 9 of 28 Contract — Prime Agreement
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6.5 Fee Changes
Subject to the City Council approval, adjustment of the not to exceed amount may be made should MCE
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.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
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7.1.1 During the course of performance of these services, MCE 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
MCE 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 to endorse CITY
OF FAYETTEVILLE. Construction Contractors shall be required to provide
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 10 of 28 Contract — Prime Agreement
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certificates evidencing such insurance to CITY OF FAYETTEVILLE and
MCE.
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7.1.3 CITY OF FAYETTEVILLE and MCE 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 MCE'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
FAYETTEVILLE and MCE for damage or liability covered by any
construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 MCE will exercise reasonable skill, care, and diligence in the performance of
MCE's services and will carry out its responsibilities in accordance with
customarily accepted professional engineering practices. MCE agrees not to
seek or accept any compensation or reimbursements from the City of
Fayetteville for engineering work it performs to correct any errors, omissions
or other deficiencies caused by MCE's failure to meet customarily accepted
professional engineering practices. CITY OF FAYETTEVILLE retains all
other remedies to recover for its damages caused by any negligence of MCE.
7.2.2 In addition MCE 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 MCE'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 MCE relating to construction costs and schedules, operation
and maintenance costs, equipment charactenstics and performance, and operating results are based on
MCE's experience, qualifications, and judgment as a design professional. Since MCE has no control over
weather, cost and availability of labor, material and equipment, labor productivity, construction
Contractors' procedures and methods, unavoidable delays, construction Contractors' methods of
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College Avenue Improvements — Phase I Page 11 of 28 Contract — Prime Agreement
Rock Street to Maple Street
determining prices, economic conditions, competitive bidding or market conditions, and other factors
affecting such cost opinions or projections, MCE does not guarantee that actual rates, costs, performance,
schedules, and related items will not vary from cost opinions and projections prepared by MCE.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of MCE'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
MCE.
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 MCE 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.
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 12 of 28 Contract — Prime Agreement
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 MCE at the time of termination may be adjusted to
cover any additional costs to CITY OF FAYETTEVILLE because of
MCE's default.
7.5.4 If termination for default is effected by MCE, 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 MCE for services rendered and expenses incurred prior to the
termination in addition to termination settlement costs reasonably incurred
by MCE 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,
MCE 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 MCE
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.
College Avenue Improvements — Phase I
Rock Street to Maple Street
Page 13 of 28 Contract — Prime Agreement
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7.5.7 If, after termination for failure of MCE to fulfill contractual obligations, it is
determined that MCE 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 MCE are suspended or delayed by CITY OF FAYE1 fEVILLE or by other
events beyond MCE's reasonable control, MCE shall be entitled to additional compensation and time for
reasonable costs incurred by MCE in temporarily closing down or delaying the Project.
7.7 Rights and Benefits
MCE'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 MCE 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 MCE 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
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Rock Street to Maple Street
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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 MCE 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 MCE 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 MCE 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 MCE for services rendered by
MCE.
7.10 Publications
Recognizing the importance of professional development on the part of MCE's employees and the
importance of MCE's public relations, MCE may prepare publications, such as technical papers, articles
for periodicals, and press releases, pertaining to MCE'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 FAYEFIEVILLE's
comments to MCE. 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 MCE's activities pertaining to any such publication shall be for MCE's
account.
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Rock Street to Maple Street
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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 MCE from and against any and all loss where Toss 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
MCE may use or modify MCE's proprietary computer models in service of CITY OF FAYETTEVILLE
under this Agreement, or MCE may develop computer models during MCE's service to CITY OF
FAYETTEVILLE under this Agreement. Such use, modification, or development by MCE does not
constitute a license to CITY OF FAYETTEVILLE to use or modify MCE's computer models. Said
proprietary computer models shall remain the sole property of the MCE. CITY OF FAYETTEVILLE
and MCE will enter into a separate license agreement if CITY OF FAYETTEVILLE wishes to use
MCE'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 MCE may retain reproduced copies of drawings and copies of other
documents.
Engineering documents, drawings, and specifications prepared by MCE as part of the Services shall
become the property of CITY OF FAYETTEVILLE when MCE has been compensated for all Services
rendered, provided, however, that MCE shall have the unrestricted right to their use. MCE 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 MCE.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. MCE 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
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Rock Street to Maple Street
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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
otices
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
113 W. Mountain
Fayetteville, AR 72701
MCE's address:
McClelland Consulting Engineers, Inc. Attn: Branch Manager
1810 North College Avenue
Fayetteville, Alt 72703
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and MCE 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 MCE shall assign, sublet, or transfer his interest in the Agreement without the
written consent of the other.
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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 MCE 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 MCE a purchase order, no
preprinted terms thereon shall become a part of this Agreement. Said purchase order document, whether
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or not signed by MCE, 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 MCE:
8.1.1 MCE shall be and shall remain liable, in accordance with applicable law, for
all damages to CITY OF FAYETTEVILLE caused by MCE'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.
8.1.2 MCE's obligations under this clause are in addition to MCE'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
MCE 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 MCE 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 MCE 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. MCE shall also maintain
the financial information and data used by MCE 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 FAYEI 1EVILLE, the State or any of their authorized
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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. MCE 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 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:
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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 MCE;
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.
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