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HomeMy WebLinkAbout39-06 RESOLUTIONRESOLUTION NO. 39-06 A RESOLUTION AUTHORIZING THREE (3) CONTRACT EMPLOYEE POSITIONS FOR PROJECT MANAGEMENT OF THE WASTEWATER SYSTEM IMPROVEMENT PROJECT; AND APPROVING SAID CONTRACTS AS TO FORM. 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 authorizes Three (3) Contract Employee Positions for project management of the Wastewater System Improvement Project. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves said contracts as to form. PASSED and APPROVED this 7th day of March, 2006. APPROVED: ATTEST: By DAN COODY, May EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (this "Agreement") is executed effective as of the day of , 2006, by and between the City of Fayetteville, Arkansas (the "Employer"), and (the "Employee"). WITNESSETH: WHEREAS the Employer is a city located in the State of Arkansas; and WHEREAS the Employer desires to retain the services of the Employee and the Employee desires to accept such employment upon the terms and conditions contained herein. • NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. EMPLOYMENT The Employer hereby employs the Employee as a Wastewater System Improvement Project (Project) Inspector (WSIP Inspector), and the Employee accepts such employment, in each case upon the terms and conditions contained herein. 2. TERM a. Unless terminated earlier as provided herein, the term of this Agreement shall begin as of the date hereof and shall continue until 365 days past "substantial completion" of the construction of the Employer's West Side Wastewater Treatment Plant. When used in this Agreement, "substantial completion" is as defined in the Contract Document for Fayetteville Project No. 02133, which is the following: when the West Side Wastewater Treatment Plant has progressed to the point where, in the opinion of the Engineer, McGoodwin, Williams, and Yates or its successor, as evidenced by his definitive certificate of Substantial Completion, it is sufficiently complete, in accordance with the Contract Documents, so that the West Side Wastewater Treatment Plant can be used for the purpose for which it is intended. Within ten (10) days after the Engineer has certified the substantial completion of the West Side Wastewater Treatment Plant, the Employer will notify the Employee in writing of the date of "substantial completion" and of the date of the termination of this Agreement, which will be 365 days after substantial completion. b. This Agreement may be terminated by the Employee upon not less than thirty (30) days prior written notice. 1 c. The Employee and Employer agree that the Employee is not entitled to severance following the termination of this Agreement, regardless of the reason for termination of the Agreement. 3. DUTIES. a. The Employee shall devote his full working time, attention and energies to the Employer and its Business during normal working hours for purposes of performing his obligations and duties hereunder. In this regard, the Employee shall perform such functions as are ordinary and customary in the performance of similar services by persons occupying a like position with other businesses of similar size and operation. Specifically, the duties of the Employee shall include, but are not limited to, the following: the administering, monitoring, and inspecting of various construction projects that are components of the Project, serving as the Employer's lead field representative and field point of contact; and ensuring that the Employer receives the quality of matenals and workmanship contracted for and that projects are completed in a timely manner. Additional duties of the Employee are contained in the WSIP Inspector job description, attached to this Agreement as Exhibit A. The precise duties of the Employee may be reasonably specified from time to time by the Employer. b. The Employee shall comply with all requirements, directions, requests, rules, regulations, policies, and procedures of the Employer as amended by the Employer at its discretion, including but not limited to, those in the Employer's Employee Handbook and any and all state, federal, or local laws or regulations. The Employee acknowledges and agrees that a violation, or violations, of the Employer's policies and procedures, including, but not limited to those found in The Employer's Employee Handbook, or the terms contained in this Agreement, may constitute "cause" for termination of the Employee's employment with the Employer and may provide the Employer grounds for terminating this Agreement under Paragraph 6. To the extent any conflict arises between this Agreement and the Employee Handbook with respect to Employee, the provisions of this Agreement are controlling. c. The Employee shall faithfully perform his employment services hereunder in good faith to the best of his ability and for the best interests of the Employer. d. Unless otherwise expressly authorized by the Employer in writing, the Employee shall not take any action on behalf of the Employer which is outside the normal scope of the Employee's employment or otherwise outside the ordinary and customary course of the Employer's business. e. The Employee's immediate supervisor will be the Wastewater System Improvement Project Manager/Engineer or his designee. COMPENSATION. a. The Employee shall be paid by the Employer at a rate of Dollars ($ ) per hour during the term hereof in exchange for the Employee's services hereunder. The Employee's compensation shall be subject to all applicable withholding, Social Security, Medicare, and other payroll related taxes Employee's compensation will be paid pursuant to the Employer's bi-weekly pay periods that begin on Monday and end on Sunday. b. The Employee's salary will be increased on an annual basis in a percentage amount equal to the annual percentage change in the ,Consumer Price Index All Urban Consumers (CPI -U), U.S. City Average, All Items Less Food and Energy, index base period (1982-84=100), as reported on July 1 of the preceding calendar year. The increase in the Employee's pay will be effective on the payroll that either coincides with or is the first following January 1. c. The Employee must accurately record on a time card all hours at work, including morning arrival at work, departure for lunch, retum from lunch, and departure at the end of the work day. Under no circumstances should the Employee perform any work "off the clock." d. The Employee may be required to work overtime, and all overtime must be approved by the Employee's supervisor prior to being worked. The Employee must complete an "Employee Overtime/Comp Time Payroll Reporting Form" and obtain supervisory approval in order for the time to be considered approved overtime. e. If the Employee fulfills his obligations under this Agreement, and if the Employee remains employed by the Employer from the date hereof until 365 days past "substantial completion" as that term is defined in Paragraph 2(a), then the Employee may be entitled to receive an Economic Transition Payment (ETP). If the Employee meets these eligibility requirements, the ETP will be paid at the end of the contract period and will be based on twelve (12) percent of the Employee's earnings during the contract period For purposes of this paragraph only, the end of the construction project is defined as one year (365 days) after the date of substantial completion, as defined in Paragraph 2(a) of this Agreement. 5. WORKING FACILITIES. The Employer shall provide the Employee with such commercially reasonable office space and facilities as are suitable for the Employee's position and reasonably appropriate for the performance of the Employee's duties hereunder. 6. VACATIONS AND HOLIDAYS. The Employee shall be entitled to fifteen (15) days per year, in the aggregate for paid time off (PTO). PTO shall be used for vacation, personal, or sick leave. The Employee will also receive eight (8) hours of holiday pay for each of the City's eleven (11) observed holidays that occur during the Employee's period of employment. The Employee may carry over to the following calendar year any PTO not taken during any calendar year. Upon the termination of this Agreement, the Employer will not pay the Employee for any unused PTO. 3 7. VOLUNTARY INSURANCE BENEFITS. If the Employee meets all enrollment eligibility requirements, the Employee shall be entitled to all group insurance plans and voluntary benefits provided by the Employer with the exception of the Employee Retirement Savings Plan and the 457 Deferred Compensation Plan. 8. DEATH. If the Employee dies during the term of the Employee's employment, the Employer shall pay to the estate of the Employee the compensation that would otherwise be payable to the Employee hereunder up to and including the end of the last day worked by the Employee Thereafter, this Agreement shall terminate and the Employer shall have no further obligations hereunder. 9. DISABILITY. If Employee becomes disabled or incapacitated so that he is unable to carry out or perform the duties required of him under this Agreement for a period of greater than ninety (90) days, the Employer shall have the right to terminate Employee's employment upon written notice to Employee. The Employer will comply with the Americans with Disabilities Act (ADA) in providing a reasonable accommodation when required by law. 10. TERMINATION OF EMPLOYMENT Disputes concerning the Employee's alleged neglect of responsibilities, inappropriate behavior, unsatisfactory performance, or a violation, or violations, of the Employer's policies and procedures, or other alleged violations of the Agreement, should, whenever possible, be resolved and remedied by cooperative discussion between the Employee and the Employer. If those discussions fail to resolve the dispute(s), the Employer may terminate the Employee's employment, upon notice, "for cause." The Employer may terminate this Agreement without liability (other than the payment of accrued salary through the date of termination) at any time after the occurrence of any one or more of the following events of termination: a. The Employee engaging in any act which constitutes (i) a felony under any state law or law of the United States, (n) gross, willful, or wanton negligence or misconduct against the interests of the Employer, (iii) breach of any fiduciary duty to the Employer, (iv) embezzlement or misuse of the funds of the Employer's, (v) fraud, (vi) falsification of records of the Employer, (vii) violation of the Employer's harassment policy, (viii) violation of the Employer's substance abuse policy, (ix) discourteous treatment of the public or co-workers, (x) absence without approved leave or failure to report for duty, or (xi) a willful material breach of this Agreement. b. The Employee engaging in any act which causes embarrassment to the Employer or brings the Employee or the Employer into disrepute in the community, including, without limitation, excessive or habitual use of drugs or alcohol, or any act of moral turpitude. c. The Employee's insubordination and/or failure to fulfill and perform the Employee's duties and covenants hereunder in a faithful, diligent, and efficient manner; provided that no termination shall occur under this. subsection (c) until the Employee has 4 received written notice from the Employer of such failure and has failed to cure the same to the reasonable satisfaction of the Employer within ten (10) days after receipt of such notice. 11. GRIEVANCES. If the Employee has a grievance concerning any disciplinary action issued him or concerning his termination, he should make the grievance in writing to his supervisor. Acknowledgment of receipt of such grievance shall be made in writing within one (1) week and a commitment to attempt to resolve the grievance within thirty (30) days shall bemade by the supervisor. If a solution is not achieved yet, then the matter may be referred by the supervisor to the Water and Wastewater Director. The Water and Wastewater Director, after deliberation/consultations, may submit its recommendations to the Operations Director for final action. 12. IMPROPER USE OF INFORMATION. The Employee shall not use any confidential or advance information obtained by virtue of his employment for personal or financial advantage. 13. RETURN OF EMPLOYER PROPERTY Upon termination of employment, the Employee agrees to immediately return to the Employer all property of the Employer in the possession or control of the Employee. 14. REMEDIES. The parties expressly acknowledge and agree that the provisions of Sections 12 and 13 of this Agreement (along with the provisions of this Section 14) shall survive any termination of this Agreement and any termination of Employee's employment hereunder, and in the event of the Employee's actual or threatened breach of any of such provisions, the Employer shall be entitled (without requirement to post a bond) to an injunction restraining the Employee from any such breach. Nothing contained herein shall be construed as prohibiting the Employer from pursuing any other available remedies for such breach or threatened breach, including the recovery of damages. 15. MISCELLANEOUS. a. Assignment. This Agreement and the rights, obligations and duties of the Employee hereunder shall not be assignable or otherwise transferable. b. Modification. No term or provision contained herein may be modified, amended or waived except by written agreement signed by the party to be bound thereby. c. Binding Effect and Benefit. This Agreement shall inure to the benefit of, and shall be binding upon the parties hereto, and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns. d. Headings and Captions. Subject headings and captions are included for convenience purposes only and shall not affect the interpretation of this Agreement. 5 e. Notice. All notices, requests, demands and other communications permitted or required hereunder shall be in writing, and shall be delivered in person, or mailed, registered or certified United States mail, postage prepaid, or otherwise sent by generally recognized commercial overnight courser as follows: If to the Employee, addressed or delivered in person to: If to the Employer, addressed or delivered in person to: or to such other address as either party may designate by notice. Any such notice shall be effective upon receipt (or refusal to accept receipt) by the addressee. f. Severability. If any portion of this Agreement is held invalid, illegal or unenforceable, such determination shall not impair the enforceability of the remaining terms and provisions herein which may be given effect, and to this end the terms and provisions of this Agreement are declared to be severable. g. Waiver. No waiver of a breach or violation of any term or provision of this Agreement shall operate or be construed as a waiver of any subsequent breach or limit or restrict any right or remedy otherwise available. Any waiver must be in writing. h. Rights and Remedies Cumulative. The rights and remedies expressed herein are cumulative and not exclusive of any rights and remedies otherwise available. Gender and Number. Throughout this Agreement, the masculine shall include the feminine and neuter and the singular shall include the plural and vice versa as the context requires. j. Entire Agreement. This document constitutes the entire agreement of the parties and supersedes any and all other prior agreements, oral or written, with respect to the subject matter hereof. k. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Arkansas, without regard to conflict of law principles. I. No Joint Venture or Partnership. This Agreement shall not be considered to create any type of joint venture, partnership or any other similar legal 6 relationship between the parties, it being the intent of the parties to create only an employer-employee relationship. m. Joint Preparation. This Agreement shall be deemed to have been prepared jointly by the parties hereto, and any uncertainty or ambiguity existing herein shall not be interpreted against any party by reason of its drafting of this Agreement, but shall be interpreted according to the application of the general rules of interpretation for arm's length agreements. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and year aforesaid. 115183 EMPLOYER: By: Title: EMPLOYEE: 7 Grade NB 10 WASTEWATER SYSTEM IMPROVEMENT PROJECT (WSIP) INSPECTOR POSITION SUMMARY • 01-06 Administer, monitor and inspect construction projects that are components of the $175 million Wastewater System Improvements Project, designed and constructed by engineers working for the City. Serve as the City's lead field representative and field point of contact. Ensure the City receives the quality of materials and workmanship contracted for and that projects are completed in a timely manner with minimum possible inconvenience to the public. PRIMARY RESPONSIBILITIES AND DUTIES Inspects and participates in the work of technical, professional, and operational personnel, including surveying and field work, and reviews plans and specifications for wastewater plants, pumping stations and lines. Assists the Project Manager in evaluating modifications, making cost estimates on projects, and in gathering information for contract negotiations. Assists in the preparation of construction contracts during the bidding phase of a project and in bid evaluation. Reviews or periodic and final pay estimates. Performs daily, periodic, as -needed and final inspection of projects. Participates in preconstruction.and in -progress conferences and meetings. Evaluates the need for and prepare and/or approve field change orders. Keep the WSIP Project Manager and Water and Wastewater Director or the designated City representative informed of minor changes as they arise and request approval for any major change. Oversees tests and specific construction activities required to ensure compliance with contract specifications. REQUIREMENTS OF POSITION • Position requires graduation from high school or equivalent plus two years of applicable college coursework preferred. Position requires motor vehicle license, three years of municipal WSIP InspectorJobDesc Jan06-01.000 construction experience and good interpersonal skills. A minimum of four years experience in a field inspection or engineering position is desired. Must be familiar with the use of a calculator, PC, surveying instruments, water and sewer test machines, pipe laser, aerial lifts, backhoe and front end loader. Position requires 70% field work in and around open trenches and in the immediate vicinity of all types of construction equipment, blasting, in confined spaces and in public traffic. Incumbent must be capable of working closely with contractors, engineers, developers, and the public. WSIP Inspector.JobDesc Jan06-01.DOC • EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (this "Agreement") is executed effective as of the day of 2006, by and between the City of Fayetteville, Arkansas (the "Employer"), and (the Employee"). WITNESSETH: WHEREAS, the Employer is a city located in the State of Arkansas; and WHEREAS, the Employer desires to retain the services of the Employee and the Employee desires to accept such employment upon the terms and conditions contained herein. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. EMPLOYMENT. The Employer hereby employs the Employee as a Wastewater System Improvement Project (Project) Manager/Engineer, and the Employee accepts such employment, in each case upon the terms and conditions contained herein. 2. TERM a. Unless terminated earlier as provided herein, the term of this Agreement shall begin as of the date hereof and shall continue until 365 days past "substantial completion" of the construction of the Employer's West Side Wastewater Treatment Plant When used in this Agreement, "substantial completion" is as defined in the Contract Document for Fayetteville Project No. 02133, which is the following: when the West Side Wastewater Treatment Plant has progressed to the point where, in the opinion of the Engineer, McGoodwin, Williams, and Yates or its successor, as evidenced by his definitive certificate of Substantial Completion, it is sufficiently complete, in accordance with the Contract Documents, so that the West Side Wastewater Treatment Plant can be used for the purposes for which it is intended. Within ten (10) days after the Engineer has certified the substantial completion of the West Side Wastewater Treatment Plant, the Employer will notify the Employee in writing of the date of "substantial completion" and of the date of the termination of this Agreement, which will be 365 days after substantial completion. b. This Agreement may be terminated by the Employee upon not less than forty-five (45) days prior written notice. c. The Employee and Employer agree that the Employee is not entitled to severance following the termination of this Agreement, regardless of the reason for termination of the Agreement. 3. DUTIES. a. The Employee shall devote his full working time, attention and energies to the Employer and its Business during normal working hours for purposes of performing his obligations and duties hereunder. In this regard, the Employee shall perform such functions as are ordinary and customary in the performance of similar services by persons occupying a like position with other businesses of similar size and operation. Specifically, the duties of the Employee shall include, but are not limited to, the following: professional and engineering supervision and project management of the Project and all subprojects; and reviewing plans proposed by developers and as part of the Employer's capital and in-house wastewater improvement plans to identify potential conflicts and impacts. Additional duties of the Employee are contained in the Wastewater System Improvement Project Manager/Engineer job description, attached to this Agreement as Exhibit A. The precise duties of the Employee may be reasonably specified from time to time by the Employer. b. The Employee shall comply with all requirements, directions, requests, rules, regulations, policies, and procedures of the Employer as amended by the Employer at its discretion, including but not limited to, those in the Employer's Employee Handbook and any and all state, federal, or local laws or regulations. The Employee acknowledges and agrees that a violation, or violations, of the Employer's policies and procedures, including, but not limited to those found in The Employer's Employee Handbook, or the terms contained in this Agreement, may constitute "cause" for termination of the Employee's employment with the Employer and may provide the Employer grounds for terminating this Agreement under Paragraph 6. To the extent any conflict arises between this Agreement and the Employee Handbook with respect to Employee, the provisions of this Agreement are controlling. c. The Employee shall faithfully perform his employment services hereunder in good faith to the best of his ability and for the best interests of the Employer. d. Unless otherwise expressly authorized by the Employer in writing, the Employee shall not take any action on behalf of the Employer which is outside the normal scope of the Employee's employment or otherwise outside the ordinary and customary course of the Employer's business. e. The Employee's immediate supervisor will be the Water and Wastewater Director or his designee. COMPENSATION. 2 a. The Employee shall be paid by the Employer a salary amounting to Dollars ($ ) bi-weekly during the term hereof in exchange for the Employee's services hereunder. The Employee's compensation shall be subject to all applicable withholding, Social Security, Medicare, and other payroll related taxes Employee's compensation will be paid pursuant to the Employer's bi-weekly pay periods that begin on Monday and end on Sunday. b. The Employee's salary will be increased on an annual basis in a percentage amount equal to the annual percentage change in the Consumer Price Index All Urban Consumers (CPI -U), U.S. City Average, All Items Less Food and Energy, index base period (1982-84=100), as reported on July 1 of the preceding calendar year. The increase in the Employee's pay will be effective on the payroll that either coincides with or is the first following January 1. c. If the Employee fulfills his obligations under this Agreement, and if the Employee remains employed by the Employer from the date hereof until 365 days past "substantial completion" as that term is defined in Paragraph 2(a), then the Employee may be entitled to receive an Economic Transition Payment (ETP). If the Employee meets these eligibility requirements, the ETP will be paid at the end of the contract penod and will be based on twelve (12) percent of the Employee's earnings during the contract period For purposes of this paragraph only, the end of the construction project is defined as one year (365 days) after the date of substantial completion, as defined in Paragraph 2(a) of this Agreement. 5. WORKING FACILITIES. The Employer shall provide the Employee with such commercially reasonable office space and facilities as are suitable for the Employee's position and reasonably appropriate for the performance of the Employee's duties hereunder. 6. VACATIONS AND HOLIDAYS. The Employee shall be entitled to fifteen (15) days per year, in the aggregate for paid time off (PTO). PTO shall be used for vacation, personal, or sick leave. The Employee will also receive eight (8) hours of holiday pay for each of the Employer's eleven (11) observed holidays that occur during the Employee's period of employment. The Employee may carry over to the following calendar year any PTO not taken during any calendar year. Upon the termination of this Agreement, the Employer will not pay the Employee for any unused PTO. 7. VOLUNTARY INSURANCE BENEFITS. If the Employee meets all enrollment eligibility requirements, the Employee shall be entitled to all group insurance plans and voluntary benefits provided by the Employer with the exception of the Employee Retirement Savings Plan and the 457 Deferred Compensation Plan. 8. DEATH. If the Employee dies during the term of the Employee's employment, the Employer shall pay to the estate of the Employee the compensation that would otherwise be payable to the Employee hereunder through the end of the last day 3 worked by the Employee. Thereafter, this Agreement shall terminate and the Employer shall have no further obligations hereunder. 9. DISABILITY. If Employee becomes disabled or incapacitated so that he is unable to carry out or perform the duties required of him under this Agreement for a period of greater than ninety (90) days, the Employer shall have the right to terminate Employee's employment upon written notice to Employee. The Employer will comply with the Americans with Disabilities Act (ADA) in providing a reasonable accommodation when required by law. 10. TERMINATION OF EMPLOYMENT Disputes concerning the Employee's alleged neglect of responsibilities, inappropriate behavior, unsatisfactory performance, ora violation, or violations, of the Employer's policies and procedures, or other alleged violations of the Agreement, should, whenever possible, be resolved and remedied by cooperative discussion between the Employee and the Employer. If those discussions fail to resolve the dispute(s), the Employer may terminate the Employee's employment, upon notice, "for cause." The Employer may terminate this Agreement without liability (other than the payment of accrued salary through the date of termination) at any time after the occurrence of any one or more of the following events of termination: a. The Employee engaging in any act which constitutes (i) a felony under any state law or law of the United States, (ii) gross, willful, or wanton negligence or misconduct against the interests of the Employer, (iii) breach of any fiduciary duty to the Employer, (iv) embezzlement or misuse of the funds of the Employer's, (v) fraud, (vi) falsification of records of the Employer, (vii) violation of the Employer's harassment policy, (viii) violation of the Employer's substance abuse policy, (ix) discourteous treatment of the public or co-workers, (x) absence without approved leave or failure to report for duty, or (xi) a willful material breach of this Agreemerit. b. The Employee engaging in any act which causes embarrassment to the Employer or brings the Employee or the Employer into disrepute in the community, including, without limitation, excessive or habitual use of drugs or alcohol, or any act of moral turpitude. c. The Employee's insubordination and/or failure to fulfill and perform the Employee's duties and covenants hereunder in a faithful, diligent, and efficient manner; provided that no termination shall occur under this subsection (c) until the Employee has received written notice from the Employer of such failure and has failed to cure the same to the reasonable satisfaction of the Employer within ten (10) days after receipt of such notice. 11. GRIEVANCES. If the Employee has a grievance concerning any disciplinary action issued him or concerning his termination, he should make the grievance in writing to his supervisor. Acknowledgment of receipt of such grievance shall be made in writing within one (1) week and a commitment to attempt to resolve the grievance within thirty (30) days shall be made by the supervisor. If a solution is not achieved yet, then the matter 4 may be referred by. the supervisor to the Operations Director. After deliberation/consultations, the Operations Director will render a final decision. 12. IMPROPER USE OF INFORMATION: The Employee shall not use any confidential or advance information obtained by virtue of his employment for personal or financial advantage. 13. RETURN OF EMPLOYER PROPERTY Upon termination of employment, the Employee agrees to immediately return to the Employer all property of the Employer in the possession or control of the Employee. 14. REMEDIES. The parties expressly acknowledge and agree that the provisions of Sections 12 and 13 of this Agreement (along with the provisions of this Section 14) shall survive any termination of this Agreement and any termination of Employee's employment hereunder, and in the event of the Employee's actual or threatened breach of any of such provisions, the Employer shall be entitled (without requirement to post a bond) to an injunction restraining the Employee from any such breach. Nothing contained herein shall be construed as prohibiting the Employer from pursuing any other available remedies for such breach or threatened breach, including the recovery of damages. 15. MISCELLANEOUS. a. Assignment. This Agreement and the rights, obligations and duties of the Employee hereunder shall not be assignable or otherwise transferable. b. Modification. No term or provision contained herein may be modified, amended or waived except by written agreement signed by the party to be bound thereby. c. Binding Effect and Benefit. This Agreement shall inure to the benefit of, and shall be binding upon the parties hereto, and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns. d. Headings and Captions. Subject headings and captions are included for convenience purposes only and shall not affect the interpretation of this Agreement. e. Notice. All notices, requests, demands and other communications permitted or required hereunder shall be in writing, and shall be delivered in person, or mailed, registered or certified United States mail, postage prepaid, or otherwise sent by generally recognized commercial overnight courier as follows: If to the Employee, addressed or delivered in person to: 5 If to the Employer, addressed or delivered in person to: or to such other address as either party may designate by notice. Any such notice shall be effective upon receipt (or refusal to accept receipt) by the addressee. f. Severability. If any portion of this Agreement is held invalid, illegal or unenforceable, such determination shall not impair the enforceability of the remaining terms and provisions herein which may be given effect, and to this end the terms and provisions of this Agreement are declared to be severable. g. Waiver. No waiver of a breach or violation of any term or provision of this Agreement shall operate or be construed as a waiver of any subsequent breach or limit or restrict any right or remedy otherwise available. Any waiver must be in writing. h. Rights and Remedies Cumulative. The rights and remedies expressed herein are cumulative and not exclusive of any rights and remedies otherwise available. Gender and Number. Throughout this Agreement, the masculine shall include the feminine and neuter and the singular shall include the plural and vice versa as the context requires. J. Entire Agreement. This document constitutes the entire agreement of the parties and supersedes any and all other prior agreements, oral or written, with respect to the subject matter hereof. k. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Arkansas, without regard to conflict of law principles. No Joint Venture or Partnership. This Agreement shall not be considered to create any type of joint venture, partnership or any other similar legal relationship between the parties, it being the intent of the parties to create only an employer-employee relationship. m. Joint Preparation. This Agreement shall be deemed to have been prepared jointly by the parties hereto, and any uncertainty or ambiguity existing herein shall . not be interpreted against any party by reason of its drafting of this Agreement, but shall be interpreted according to the application of the general rules of interpretation for arm's length agreements. 6 Grade ED 14 1-27-06 WASTEWATER SYSTEM IMPROVEMENT PROJECT MANAGER/ENGINEER POSITION SUMMARY This is a professional engineering and administrative position serving as the project manager for the Wastewater System Improvement Project (WSIP). Primary duties include: professional engineering supervision and project management of the WSIP project and all subprojects, including providing construction phase project supervision for and reviewing the design and layout of sanitary sewers, pump stations, and the west side wastewater treatment plant; reviewing plans proposed by developers and as part of the City's capital and in-house water and wastewater improvement plans to identify potential conflicts and impacts. Must maintain updated project budgets and schedules. Will coordinate multiple interrelated subprojects and consolidate subproject information into one master project schedule and budget. Work is performed with considerable professional independence and is subject to review through conferences with the Water and Wastewater Director on technical and management issues. Significant interaction and presentations may be required with the City Councils, Engineering and Planning Divisions, contractors, engineers, and the public. Prepares documents for'construction contracts. RESPONSIBILITIES AND DUTIES Inspects and participates in the work of technical, professional, and operational personnel, including surveying and field work for wastewater plants, pumping stations and lines. Reviews plans and specifications for wastewater plants, pumping stations and lines. Assists the Water and Wastewater Director in evaluating modifications, making cost estimates on projects, and in gathering information for contract negotiations. Assists members of the general public and City departments, advising them on engineering problems, assists in overall office operations, answers telephone calls and public inquiries relating to the WSIP. Performs overall management of the WSIP relating to record keeping and data management. Assists the Water and Wastewater Director in long and short range planning for the WSIP. WSIP Project Mgr JobDesc.doc.doc Assists in the preparation of Contract Documents and Requests for Proposals. Reviews requests for information. Makes decisions relating to the technical aspects of the WSIP design and construction. Coordinates project management and inspections, and performs inspections as needed. Reviews development and other engineering plans for that may impact or be impacted by the WSIP. REQUIREMENTS OF POSITION Bachelor's Degree in civil engineering or closely related field with experience in professional civil engineering work, including field and office experience; or any equivalent combination of experience and training that would provide the following knowledge, abilities, and skills: Considerable knowledge of the principles and practices of civil engineering, land surveying, and the investigation, design, and/or construction phases of wastewater projects. Ability to make complex engineering computations and to prepare engineering plans and specifications. Ability to plan and supervise the work of technical personnel and to prepare concise technical reports. Ability to establish and maintain effective working relationships with employees, City officials, officials of state and other government agencies, contractors, and the public. Skill in the use and demonstration of civil engineering office and field tools and the ability to train others in such use. Experience with computer software including AutoCAD would be beneficial. Registration as a Professional Engineer in the State of Arkansas or ability to acquire such registration within eight months of becoming employed. Must possess a valid Arkansas driver's license and pass a pre- employment drug screen. WSIP Project Mgr JobDesc.doc.doc EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (this Agreement") is executed effective as of the day of 12006, by and between the City of Fayetteville, Arkansas (the "Employer"), and (the "Employee"). WITNESSETH: WHEREAS, the Employer is a city located in the State of Arkansas; and WHEREAS, the Employer desires to retain the services of the Employee and the Employee desires to accept such employment upon the terms and conditions contained herein. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. EMPLOYMENT The Employer hereby employs the Employee as a Secretary for the Wastewater System Improvement Project (Project), and the Employee accepts such employment, in each case upon the terms and conditions contained herein. 2. TERM a. Unless terminated earlier as provided herein, the term of this Agreement shall begin as of the date hereof and shall continue until 365 days past "substantial completion" of the construction of the Employer's West Side Wastewater Treatment Plant. When used in this Agreement, "substantial completion" is as defined in the Contract Document for Fayetteville Project No. 02133, which is the following: when the West Side Wastewater Treatment Plant has progressed to the point where, in the opinion of the Engineer, McGoodwin, Williams, and Yates or its successor, as evidenced by his definitive certificate of Substantial Completion, it is sufficiently complete, in accordance with the Contract Documents, so that the West Side Wastewater Treatment Plant can be used for the purposes for which it is intended. Within ten (10) days after the Engineer has certified the substantial completion of the West Side Wastewater Treatment Plant, the Employer will notify the Employee in writing of the date of "substantial completion" and of the date of the termination of this Agreement, which will be 365 days after substantial completion. b. This Agreement may be terminated by the Employee upon not less than fourteen (14) days prior written notice to the Employer. 1 • c. The Employee and Employer agree that the Employee is not entitled to severance following the termination of this Agreement, regardless of the reason for termination of the Agreement. 3. DUTIES. a. The Employee shall devote his full working time, attention and energies to the Employer and its Business during normal working hours for purposes of performing his obligations and duties hereunder. In this regard, the Employee shall perform such functions as are ordinary and customary in the performance of similar services byy persons occupying a like position with other businesses of similar size and operation. Specifically, the duties of the Employee shall include, but are not limited to, the following: performing supporting secretarial and administrative tasks assisting management and supervisory personnel; and exercising initiative and independent judgment in screening calls, requests for assistance, information, or service and in general public relations activities. Additional duties of the Employee are contained in the Secretary job description, attached to this Agreement as Exhibit A. The precise duties of the Employee may be reasonably specified from time to time by the Employer. b. The Employee shall comply with all requirements, directions, requests, rules, regulations, policies, and procedures of the Employer as amended by the Employer at its discretion, including but not limited to, those in the Employer's Employee Handbook and any and all state, federal, or local laws or regulations. The Employee acknowledges and agrees that a violation, or violations, of the Employer's policies and procedures, including, but not limited to those found in The Employer's Employee Handbook, or the terms contained in this Agreement, may constitute "cause" for termination of the Employee's employment with the Employer and may provide the Employer grounds for terminating this Agreement under Paragraph 6. To the extent any conflict arises between this Agreement and the Employee Handbook with respect to Employee, the provisions of this Agreement are controlling. c. The Employee shall faithfully perform his employment services hereunder in good faith to the best of his ability and for the best interests of the Employer. d. Unless otherwise expressly authorized by the Employer in writing, the Employee shall not take any action on behalf of the Employer which is outside the normal scope of the Employee's employment or otherwise outside the ordinary and customary course of the Employer's business. e. The Employee's immediate supervisor will be the Wastewater System Improvement Project Manager/Engineer or his designee. 4. COMPENSATION. a. The Employee shall be paid by the Employer at a rate of Dollars ($ ) per hour during the 2