HomeMy WebLinkAbout108-08 RESOLUTIONRESOLUTION NO. 108-08
A RESOLUTION APPROVING AN ENGINEERING SERVICES
CONTRACT WITH RJN GROUP, INC. IN THE AMOUNT OF
$395,109.00 FOR A DETAILED SANITARY SEWER EVALUATION
STUDY IN SOUTH FAYETTEVILLE AND THE CITY OF
GREENLAND; AND APPROVING A 5% CONTINGENCY IN THE
AMOUNT OF $19,800.00.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby approves an Engineering Services Contract with RJN Group, Inc. in the
amount of $395,109.00 for a detailed Sanitary Sewer Evaluation Study in South
Fayetteville and the City of Greenland A copy of the contract, marked Exhibit
"A" is attached hereto and made a part hereof
Section 2. That the City Council of the City of Fayetteville, Arkansas
hereby approves a 5% contingency in the amount of $19,800.00.
PASSED and APPROVED this 20th day of May, 2008.
APPROVED:
By
DAN COODY, Mayor
ATTEST:
By: AI dila.
SONDRA E SMITH, City Clerk/Treasurer
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
RJN GROUP, INC.
THIS AGREEMENT is made as of Mi" , 2008, by and between City of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and RJN
GROUP, INC. with offices located in Fayetteville, Arkansas (hereinafter called RJN GROUP, INC.).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the investigation, planning, design, permitting, and construction of the Fayetteville Wastewater
Collection System related to the sanitary sewer system known as White River Watershed Basins W-5,
W-6, W -13A, W-20, & W-32. .Therefore, CITY OF FAYETTEVILLE and RJN GROUP, INC. in
consideration of their mutual covenants agree as follows:
RJN GROUP, INC. 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
FAYETTEVILLE during the performance of RJN GROUP, INC.'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 w be provided by RJN GROUP, INC. 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 RJN GROUP, INC.
1.2 Assignments may include services described hereafter as Basic Services or as Additional
Services of RJN GROUP, INC.
1.3 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City Council
in advance of the change in scope, costs, fees, or delivery schedule.
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SECTION 2 - BASIC SERVICES OF RJN GROUP, INC.
2.1 General
2.1.1 Perform professional design services in connection with the Project as hereinafter stated.
2.1.1.1 The Scope of Services to be furnished by RJN GROUP, INC. during the Preliminary
Engineering Design Phase is included in Section 2 2 hereafter and in Appendix A
attached hereto and made part of this Agreement.
2.1.1.2 The Scope of Services to be furnished by RJN GROUP, INC. during the Final Design
Phase is included in Section 2.3 hereafter and in Appendix A attached hereto and made
part of this Agreement.
2.1.1.3 The Scope of Services to be furnished by RJN GROUP, INC. during the Bidding Phase is
included in Section 2.4 hereafter and in Appendix A attached hereto and made part of this
Agreement.
2.1.1.4 The Scope of Services to be furnished by RJN GROUP, INC. during the Construction
Phase, if any, will be finalized and contained in an amendment to this Agreement after
Final Design is completed.
2.1.1.5 The Scope of Services to be furnished by RJN GROUP, INC. during the Post -
Construction Phase, if any, will be finalized and contained in an amendment to this
Agreement after Final Design is completed.
21.1.6 The preliminary Scope of Services to be furnished by RJN GROUP, INC. for Resident
Services during Construction, if any, will be finalized and contained in an amendment to
this Agreement after Final Design is completed. The preliminary Scope of Services for
Resident Services during Construction is described in Appendix A.
2.1.2 RJN GROUP, INC. shall coordinate their activities and services with the CITY OF
FAYETTEVILLE. RJN GROUP, INC. and CITY OF FAYETTEVILLE agree that RJN
GROUP, INC. has full responsibility for the engineering design.
2.2 Sanitary Sewer Evaluation Study (SSES) and Engineering Report
2.2.1 Perforin an SSES as described in the Scope of Services in Appendix A.
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2.2.2 Prepare and submit an Engineering Report that describes the project's need, scope, and
outcomes of the SSES. The report will include a description of sewer deficiencies, problem
statements, evaluation of possible alternatives, recommended improvements, and project cost
estimates.
2.2.3 Meet with CITY OF FAYETTEVILLE to discuss the Report. Revise the report based on
comments from the reviewing parties.
2.3 Final Design Phase (Construction Drawings, Contract Documents and Specifications)
2.3.1 Prepare for incorporation in the Contract Documents detailed drawings to show the character
and scope of the Work to be performed by contractors on the Project (hereinafter called the
"Contract Drawings"), and Invitation to Bid, Instructions to Bidders, Bid Form, Agreement
and Bond forms, General Conditions, and Specifications (all of which, together with the
Contract Drawings, are hereinafter called the "Bid Documents") for review and approval by
CITY OF FAYETTEVILLE, its legal counsel, and other advisors as appropriate, and assist
CITY OF FAYETTEVILLE in the preparation of other related documents.
2.3.1.1 Bid documents shall be based on the appropriate Construction Specifications required by
the CITY OF FAYETTEVILLE's standard general conditions and forms and RJN
GROUP, INC.'s Technical Specifications as appropriate. Text documents shall be
provided to CITY OF FAYETTEVILLE in Microsoft® Word version 2000 software.
Contract drawings shall be prepared using standard borders, sheet sizes, title blocks and
CADD standards provided by CITY OF FAYETTEVILLE. RJN GROUP, INC. 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.
2.3.1.2 Develop and include in Appendix A of this Agreement for approval by CITY OF
FAYETTEVILLE, a project design schedule in which RJN GROUP, INC. shall include,
in an acceptable level of detail, the steps and milestone dates to be undertaken by
RJN GROUP, INC. in the completion of this final design. This Schedule shall include
reasonable allowances for review and approval times required by CITY OF
FAYETTEVILLE, 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
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CITY OF FAYETTEVILLE, or for delays or other causes beyond RJN GROUP, INC.'s
reasonable control.
2.3.1.2.1 The progress design schedule shall consist of a bar chart schedule depicting the
duration of the -project and the discrete milestone activities which make up the
project, but at a minimum shall include contract drawings, contract specifications,
and design reviews as indicated in Section 2.3.9.
2.3.1.3 When requested by the CITY OF FAYETTEVILLE's Water and Sewer Maintenance
Superintendent, prepare for and attend up to two City Council meetings to provide
periodic updates on the progress of the final design.
2.3.1.4 If the plans and specifications for the project require bids on alternates in addition to a
base bid, there shall be no more than three (3) alternates, and the alternates shall be
developed and described in accordance with Title 22, Article 9-203 of the Arkansas
Code.
2.3.2 Prepare technical criteria, written descriptions, design data, and applications necessary for
filing applications for permits from or approvals of the following applicable governmental
authorities having jurisdiction to review or approve the final design of the Project and assist
in securing approvals. Actual Filing and Permit Fees will be paid by the CITY OF
FAYETTEVILLE. Assist CITY OF FAYETTEVILLE in consultations with appropriate
authorities.
2.3.2.1 Arkansas Natural Resources Commission (ANRC)
2.3.2.2 Arkansas Department of 'Health (ADH)
2.3.2.3 Arkansas Department of Environmental Quality (ADEQ)
2.3.2.4 U.S. Almy Corps of Engineers (COE)
2.3.2.5 Arkansas State Highway and Transportation Department (AHTD)
2.3.3 Advise CITY OF FAYETTEVILLE of adjustments in excess of five percent of the cost
opinion for the Project caused by changes in scope, design requirements, or construction costs
and furnish a revised cost opinion for the Project based on the final Bid Documents.
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2.3.4 Advise CITY OF FAYETTEVILLE of final Opinion of Probable Project Costs
2.3.5 Furnish CITY OF FAYETTEVILLE with 5 copies of the final Bid Documents.
2.3.6 Detemtine land and easement requirements and provide consultation and assistance on
property procurement as related to professional engineering services being performed.
2.3.7 Provide appropriate professional interpretations of data obtained through subcontract services
for authorized Project services including property, boundary, easement, right-of-way,
topographic, and utility surveys; noting zoning and deed restrictions.
2.3.8 Submit monthly Work Progress Reports to CITY OF FAYETTEVILLE.
2.3.9 Design shall be reviewed by CITY OF FAYETTEVILLE, or such parties as CITY OF
FAYETTEVILLE shall designate, at the 90 percent completion level.
2.3.10 See Appendix A for additional services or clarification of services to be provided by
RJN GROUP, INC.
2.4 Bidding Phase
2.4.1 Arrange for bidding notices to be sent to contractors publishing services and direct mailing to
contractors of record. The legal notice to be placed in legal notices section of a local
newspaper(s) of countywide and statewide circulation and shall be coordinated with CITY
OF FAYETTEVILLE purchasing agent and an affidavit of publication secured.
2.4.2 Prepare addenda for drawings and Bid Documents as required and submit to CITY OF
FAYETTEVILLE in timely manner such that addenda can be issued by RJN GROUP, INC.
in accordance with Construction Contract General Conditions.
2.4.3 Secure updated state wage rate decisions and incorporate into the Bid Documents Update
wage rate decision by addendum if necessary.
2.4.4 Assist CITY OF FAYETTEVILLE by issuing and tracking Bid Documents, addenda and
cominunications during bidding and maintain list of plan holders. Print and distribute copies
of plans and specifications for all prospective bidders and plan rooms. Collect from
prospective bidders an appropriate non-refundable fee to offset cost of reproducing and
distributing Bidding Documents.
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2.4.4.1 RJN GROUP, INC. shall attend a Pre -Bid Conference for each construction project to
explain the project requirements and receive questions from prospective bidders. RJN
GROUP, INC. shall consider the questions received and issue necessary clarifications
and changes to the Bid Documents through the use of addenda.
2.4.5 Assist CITY OF FAYETTEVILLE in obtaining and evaluating bids and preparing
construction contracts.
2.4.6 Consult with and advise CITY OF FAYE7TEVILLE as to the acceptability of subcontractors
and other persons and organizations proposed by the prime construction contractor(s),
hereinafter called "Contractor(s)," for those portions of the work as to which such
acceptability is required by the Bid Documents.
2.4.7 Make recommendations regarding award of construction contracts.
2.4.8 Attend Water and Sewer Committee meeting and the ensuing City Council meeting to
recommend action by the respective bodies. Prepare and present a recommendation complete
with such supporting information as necessary for the bodies to make an informed decision
on the action recommended.
2.4.9 See Appendix A for additional services or clarification of services to be provided by RJN
GROUP, INC.
23 Construction Phase
2.5.1 The scope of Construction Phase Services, if any, will be negotiated following completion of
Design Phase Services.
2.6 Post -Construction Phase
2.6.1 The scope of Post -Construction Phase Services, if any, will be negotiated following
completion of Design Phase Services.
2.7 Resident Services During Construction
2.7.1 The scope of Resident Services During Construction, if any, will be negotiated following
completion of Design Phase Services.
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SECTION 3 - ADDITIONAL SERVICES OF RJN GROUP, INC.
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by RJN GROUP, INC., RJN GROUP, INC. shall furnish or obtain from others Additional
Services of the following types that are not considered normal or customary I3asic Services. The scope of
Additional Services may include:
3.1.1 Grant and Loan Assistance
Prepare applications and supporting documents for governmental grants, loans, or advances that are not
included in services described in Appendix A.
3.1.2 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.
3.1.3 Administrative Assistance
Provide Contract and Project administration to the degree authorized by CITY OF FAYETTEVILLE.
3.1.4 Furnishing renderings or models of the Project for CITY OF FAYETTEVILLE's use.
3.1.5 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.
3.1.6 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in any litigation or
other proceeding involving the Project.
3.1.7 Extra Services
3.1.7.1 Services not specifically defined heretofore that may be authorized by CITY OF
FAYETTEVILLE.
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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 RJN GROUP, INC.'s control, RJN GROUP, INC. 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 RJN GROUP, INC. If CITY OF FAYETTEVILLE indicates in
writing that all or parts of such Contingent Additional Services are not required,
RJN GROUP, INC. 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
FAYETTEVILLE's program or Project Budget.
3.2.2.2 Required by the enactment or revision of codes, laws, or regulations subsequent to the
preparation of such documents.
SECTION 4 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of RJN
GROUP, INC.
4.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.2 Assist RJN GROUP, INC. by placing at RJN GROUP, INC.'s disposal all available
information pertinent to the assignment including previous reports and any other data relative
thereto.
4.3 Guarantee access to and make all provisions for RJN GROUP, INC. to enter upon public and
private property as required for RJN GROUP, INC. to perfom3 his services under this
Agreement.
4.4 Examine all studies, reports, sketches, cost opinions, Bid Documents, Drawings, proposals,
and other documents presented by RJN GROUP, INC. and render in writing decisions
pertaining thereto.
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4.5 Provide such professional legal, accounting, financial, and insurance counseling services as
may be required for the Project.
4.6 The Water & Wastewater Engineer is the CITY OF FAYETTEVILLE's project
representative with respect to the services to be performed under this Agreement. The Water
& Wastewater Engineer shall have complete authority to transmit instructions, receive
information, interpret and define CITY OF FAYETTEVILLE's policies and decisions with
respect to materials, equipment, elements and systems to be used in the Project, and other
matters pertinent to the services covered by this Agreement.
4.7 Give prompt written notice to RJN GROUP, INC. whenever CITY OF FAYETTEVILLE
observes or otherwise becomes aware of any defect in the Project.
4.8 Furnish approvals and permits from all governmental authorities having jurisdiction over the
Project and such approvals and consents from others as may be necessary for completion of
the Project. Pay directly to the governmental authorities the actual filing and permit fees.
4.9 Pay for placement of legal notices and advertisements in newspapers or other publications
required by the Project.
4.10 Furnish, or direct RJN GROUP, INC. to provide, necessary Additional Services as stipulated
in Section 3 of this Agreement or other services as required
4.1 1 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 RJN GROUP. INC.'s use in coordinating the Contract Drawings and
Specifications.
4.12 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
written comments to RJN GROUP, INC. in a timely manner.
4.13 Provide water meter and water at no cost to the ENGINEER for use during dye water testing
and sewer cleaning activities.
SECTION 5 - PERIOD OF SERVICE
5.1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
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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. RJN GROUP,
INC. will proceed with providing the authorized services immediately upon receipt of written
authorization from CITY OF FAYETTEVILLE. Said authorization shall include the scope of
the services authorized and the time in which the services are to be completed. The
anticipated schedule for this project is included as Appendix B.
SECTION 6 - PAYMENTS TO RJN GROUP, INC.
6.1 Compensation
6.1.1 Final Design/Bidding Phase Services
The maximum not -to -exceed amount authorized for this Agreement is $395,109.00. The CITY OF
FAYETTEVILLE shall compensate RJN GROUP, INC. based on a Unit Price or Lump Sum basis as
described in Appendix C.
6.1.1.1 Subject to the City Council approval, adjustment of the not -to -exceed amount may be
made should RJN GROUP, INC. establish and CITY OF FAYETTEVILLE agree that
there has been or is to be a significant change in scope, complexity or character of the
services to be performed; or if CITY OF FAYETTEVILLE decides to shorten the
duration of work from the time period specified in the Agreement for completion of work
and such modification warrants such adjustment. Changes, modifications or amendments
in scope, price or fees to this Contract shall not be allowed without formal contract
amendment approved by the Mayor and the City:Council in advance of the change in
scope, cost, fees, or delivery schedule.
6.1.1.2 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for
Design services consistent with RJN GROUP, INC.'s nonnal 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 RJN GROUP, INC. and approved by CITY OF FAYETTEVILLE
Applications for payment shall be accompanied each month by the updated project design
schedule as the basis for determining the value earned as the work is accomplished. Final
payment for Design services shall be made upon CITY OF FAYETTEVILLEs approval
and acceptance with the satisfactory completion of the Design phase for the Project.
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6.1.2 Construction Phase Services
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Design Phase Services.
6.1.3 Post -Construction Phase Seryices
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Design Phase Services.
6.1.4 Resident Services During Construction
This section is reserved for future details concerning this phase, if any. This Agreement shall be amended
to include payment conditions following the completion of Design Phase Services.
6.1.5 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services", compensation to
RJN GROUP, INC. shall be negotiated at the time Additional services are authorized.
6.2 Statements
Statements and progress report for each calendar month will be submitted to CITY OF FAYETTEVILLE
Statements will be based on RJN GROUP, INC.'s actual cost plus fixed fee amount and Justified by the
updated progress schedule.
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of RJN GROUP,
INC.'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 RJN GROUP,
INC. 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, RJN GROUP, INC.
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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 RJN GROUP, INC. 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 tennination of this Agreement shall not constitute a waiver of CITY OF
FAYETTEVILLE's claims against RJN GROUP, INC. or his sureties under this Agreement or applicable
performance and payment bonds, if any.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, RJN GROUP, INC. 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
RJN GROUP, INC. 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 RJN GROUP, INC. as additional insureds, or, to endorse CITY OF
FAYETTEVILLE and RJN GROUP, INC. as additional insured 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 RJN GROUP, INC.
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7.1.3 CITY OF FAYETTEVILLE and RJN GROUP, INC. 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 RJN GROUP, INC.'s services. If the services result in a
Construction Phase, a provision similar to this shall be incorporated into all Construction
Contracts entered into by CITY OF FAYETTEVILLE, and all construction Contractors shall
be required to provide waivers of subrogation in favor of CITY OF FAYETTEVILLE and
RJN GROUP, INC. for damage or liability covered by any construction Contractor's policy
of insurance.
7.2 Professional Responsibility
7.2.1 RJN GROUP, INC. will exercise reasonable skill, care, and diligence in the performance of
RJN GROUP, INC.'s services and will carry out its responsibilities in accordance with
customarily accepted professional engineering practices. CITY OF FAYETTEVILLE will
promptly report to RJN GROUP, INC. any defects or suspected defects in
RJN GROUP, INC.'s services of which CITY OF FAYETTEVILLE becomes aware, so that
RJN GROUP, INC. can take measures to minimize the consequences of such a defect. CITY
OF FAYETTEVILLE and RJN GROUP, INC. 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 RJN GROUP, INC.
7.2.2 In addition, RJN GROUP, INC. 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 RJN GROUP, INC.'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 RJN GROUP, INC. relating to construction costs and
schedules, operation and maintenance costs, equipment characteristics and performance, and operating
results are based on RJN GROUP, INC.'s experience, qualifications, and judg,nent as a design
• professional. Since RJN GROUP, INC. 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 determining prices, economic conditions,
competitive bidding or market conditions, and other factors affecting such cost opinions or projections,
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RJN GROUP, INC. does not guarantee that actual rates, costs, performance, schedules, and related items
will not vary from cost opinions and projections prepared by RJN GROUP, INC.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of RJN
GROUP, INC.'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 RJN GROUP, INC.
7.5 Termination
7.5.1 This Agreement may be terminated in whole or in part in writing by either party in the event
of substantial failure by the other party to fulfill its obligations under this Agreement through
no fault of the terminating party, provided that no termination may be effected unless the
other party is given:
7.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
7.5.1.2 An opportunity for consultation with the terminating party prior to termination.
7.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that RJN GROUP, INC. is given:
7.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
•
7.5.2.2 An opportunity for consultation with the terminating party prior to termination.
7.5.3 If termination for default is effected by CITY OF FAYETTEVILLE, an equitable adjustment
in the price provided for in this Agreement shall be made, but
7.5.3.1 No amount shall be allowed for anticipated profit on unperformed services or other work,
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7.5.3.2 Any payment due to RJN GROUP, INC. at the time of termination may be adjusted to
cover any additional costs to CITY OF FAYETTEVILLE because of
RJN GROUP, INC.'s default.
7.5.4 If termination for default is effected by RJN GROUP, INC., 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 RJN GROUP, INC. for services rendered and
expenses incurred prior to the termination, in addition to termination settlement costs
reasonably incurred by RJN GROUP, INC. 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,
RJN GROUP, INC. 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 RJN GROUP, INC. 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 RJN GROUP, INC. to fulfill contractual obligations, it is
determined that RJN GROUP, INC. 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 RJN GROUP, INC. are suspended or delayed by CITY OF FAYETTEVILLE
or by other events beyond RJN GROUP, INC.'s reasonable control, RJN GROUP, INC. shall be entitled
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to additional compensation and time for reasonable costs incurred by RJN GROUP, INC. in temporarily
closing down or delaying the Project.
7.7 Rights and Benefits
RJN GROUP, INC.'s services will be perfonned 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 RJN GROUP, INC. 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 RJN GROUP, INC. 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 afier 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 RJN GROUP, INC. 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.
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7.8.4 Negotiation: Within seven days of receipt of the Notice, the Project Managers for CITY OF
FAYETTEVILLE and RJN GROUP, INC. 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 RJN GROUP, INC. 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 RJN GROUP, INC. for services rendered by RJN GROUP, INC.
7.10 Publications
Recognizing the importance of professional development on the part of RJN GROUP, INC.'s employees
and the importance of RJN GROUP, INC.'s public relations, RJN GROUP, INC. may prepare
publications, such as technical papers, articles for periodicals, and press releases, pertaining to RJN
GROUP, INC.'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 RJN GROUP, INC. 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 RJN GROUP, INC.'s activities pertaining to any such
publication shall be for RJN GROUP, INC.'s account.
7.11 Indemnification
7.11.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE and RJN GROUP, INC.
from and against any and all loss where loss is caused or incurred or alleged to be caused or
incurred in whole or in part as a result of the negligence or other actionable fault of the
Contractors, or their employees, agents, Subcontractors, and Suppliers.
7.12 Computer Models (Not Applicable)
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
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CITY OF FAYETTEVILLE. RJN GROUP, INC. may retain reproduced copies of drawings and copies of
other documents.
Engineering documents, drawings, and specifications prepared by RJN GROUP, INC. as part of the
Services shall become the property of CITY OF FAYETTEVILLE when RJN GROUP, INC. has been
compensated for all Services rendered, provided, however, that RJN GROUP, INC. shall have the
unrestricted right to their use. RJN GROUP, INC. 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 RJN GROUP, INC.
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. RJN GROUP, INC. 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:
113 West Mountain Street
Fayetteville, Arkansas 72701
KIN GROUP, INC.'s address:
12160 Abrams Road. Suite 400
Dallas, Texas 75243
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and RJN GROUP, INC. 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 RJN GROUP, INC. 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 RJN GROUP, INC. 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
RJN GROUP, INC. a purchase order, no preprinted terms thereon shall become a part of this Agreement.
Said purchase order document, whether or not signed by RJN GROUP, INC., 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 RJN GROUP, INC.
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
RJN GROUP, INC. of responsibility for the technical adequacy of the work. Neither CITY
OF FAYETTEVILLE's review, approval or acceptance of, nor payment for any of the
services shall be construed as a waiver of any rights under this Agreement or of any cause of
action arising out of the performance of this Agreement.
8.1.2 RJN GROUP, INC. shall be and shall remain liable, in accordance with applicable law, for all
damages to CITY OF FAYETTEVILLE caused by RJN GROUP, INC.'s negligent
performance of any of the services furnished under this Agreement except for errors,
omissions or other deficiencies to the extent attributable to CITY OF FAYETTEVILLE or
CITY OF FAYETTEVILLE-furnished data.
'8.1.3 RJN GROUP, INC.'s obligations under this clause are in addition to RJN GROUP, INC.'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
RJN GROUP, INC. for faulty materials, equipment, or work.
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