HomeMy WebLinkAbout197-09 RESOLUTIONRESOLUTION NO. 197-09
A RESOLUTION APPROVING AN AGREEMENT WITH
TRANSYSTEMS CORPORATION IN AN AMOUNT NOT TO EXCEED
$58,598.00 FOR THE INSPECTION, ANALYSIS, AND A FEASIBILITY
REPORT PROVIDING TECHNICAL GUIDANCE FOR THE
REHABILITATION OF THE TWO HISTORIC OVERPASS BRIDGES ON
LAFAYETTE AND MAPLE STREETS.
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 Agreement with TranSystems Corporation in an amount not to exceed
$58,598.00 for the inspection, analysis, and a feasibility report providing technical
guidance for the rehabilitation of the two historic overpass bridges on Lafayette and
Maple Streets. A copy of the Agreement, marked Exhibit "A," is attached hereto and
made a part hereof.
PASSED and APPROVED this 15th day of September, 2009.
APPROVED:
By:
ATTEST:
By:
`\•••G\TY 6F•.�G,p
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;FAYETTEVILLE;
SONDRA E. SMITH, City Clerk/Treasurer
Chris Brown
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
9/15/2009
City Council Meeting Date
Agenda Items Only
Engineering
Division
Action Required:
Development Services
Department
A resolution approving an agreement with TranSystems Corporation in an amount not to exceed $58,598 for the
inspection, analysis, and a feasibility report providing technical guidance for the rehabilitation of two historic bridges,
Lafayette Street Overpass and Maple Street Overpass.
$
58,598.00
Cast of this request
4520.9520.5314.00
Account Number
06035.1100
Project Number
Budgeted Item
X
$
19,343,175.00
Category / Project Budget
Transportation Bond Street Improvements
Program Category / Project Name
9,988,393.50 Professional Services
Funds Used to Date Program / Project Category Name
9,354,781.50 2006A Sales Tax Construction
Remaining Balance Fund Name
Budget Adjustment Attached
AIM
Department DD r )
4).73 107
Date
CD)( tZ7 A3itelet
City Attorney Date
Finance and Internal Services Director
Mayor
2- 31-2mg
Date
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Date
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ate
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
Comments:
Revised January 15, 2009
City Council Meeting of September 15, 2009
CITY COUNCIL AGENDA MEMO
To: Mayor Lioneld Jordan and City Council
Thru: Don Marr, Chief of Staff
Jeremy Pate, Development Services Director g
From: Chris Brown, City Engineer ((J/
Date: August 27, 2009
Subject: A resolution approving an agreement with TranSystems Corporation in
an amount not to exceed $58,598 for the inspection, analysis, and a
feasibility report providing technical guidance for the rehabilitation of two
historic bridges, Lafayette Street Overpass and Maple Street Overpass.
RECOMMENDATION:
Staff recommends approval of an agreement with TranSystems Corporation in an amount
not to exceed $58,598 for the inspection, analysis, and a feasibility report providing
technical guidance for the rehabilitation of two historic bridges, Lafayette Street
Overpass and Maple Street Overpass.
BACKGROUND:
This work is included in the Transportation Improvement Bond Program as a part of the
Wilson Park/Washington-Willow Area Transportation Improvements Project. Currently,
the project is scheduled for 2012 in the 3'' Bond Issue Phase of the Transportation Bond
Program. However, due to the deteriorating condition of the bridges, and their visibility,
there is an interest in moving this project forward.
DISCUSSION:
On July 22, 2009, the Selection Committee reviewed the qualifications of five
engineering firms. TranSystems was determined to have the best specialized experience
in regards to analyzing the current condition of the historic bridges, and determining the
proper rehabilitation techniques to be used to maintain the historical significance of the
structures while also maintaining the load carrying capacity.
Under this contract, TranSystems will provide an in-depth structural & rehabilitation
inspection of two historic bridges (Lafayette Street Overpass & Maple Street Overpass).
TranSystems will submit a final report which will identify deficiencies along with
recommendations and probable repair costs to restore the bridges. The report will also
highlight any urgent structural or safety deficiencies, if any, so that they could be
corrected immediately.
1
City Council Meeting of September 15, 2009
The study phase is expected to take approximately 4 months. After the study has been
completed and projects to be pursued and associated costs are identified, the study will be
presented to the Street Committee and City Council for discussion regarding the project
schedule relative to available funding.
After the project schedule has been determined, a contract amendment for additional
services will be needed to prepare detailed design plans and construction documents. At
the appropriate time, a contract amendment will be brought back to City Council for
approval before these services begin.
BUDGET IMPACT:
This contract will be paid from the funds available from the Wilson Park/Washington-
Willow Area Transportation Improvement Project. The total project budget in the Bond
Program is $4,277,000.
2
RESOLUTION NO.
A RESOLUTION APPROVING AN AGREEMENT WITH
TRANSYSTEMS CORPORATION IN AN AMOUNT NOT TO
EXCEED $58,598.00 FOR THE INSPECTION, ANALYSIS, AND A
FEASIBILITY REPORT PROVIDING TECHNICAL GUIDANCE
FOR THE REHABILITATION OF THE TWO HISTORIC
OVERPASS BRIDGES ON LAFAYETTE AND MAPLE STREETS.
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 Agreement with TranSystems Corporation in an amount not
to exceed $58,598.00 for the inspection, analysis, and a feasibility report
providing technical guidance for the rehabilitation of the two historic overpass
bridges on Lafayette and Maple Streets. A copy of the Agreement, marked
Exhibit "A," is attached hereto and made a part hereof.
PASSED and APPROVED this 15th day of September, 2009.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
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AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
TRANSYSTEMS CORPORATION
THIS AGREEMENT is made as of 34,0tL,l4w /5 , 2009, by and between City of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and
TranSystems Corporation with offices located in Independence, Kansas (hereinafter called
TRANSYSTEMS).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the planning, design, permitting, and construction of roadways within the City of Fayetteville, and in
particular, bridge inspection, structural analysis and engineering services related to the rehabilitation of
two historic bridges, Lafayette Street Overpass and Maple Street Overpass, or as further described in
Appendix A. Therefore, CITY OF FAYETTEVILLE and TRANSYSTEMS in consideration of their
mutual covenants agree as follows:
TRANSYSTEMS 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 TRANSYSTEMS'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 TRANSYSTEMS 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 TRANSYSTEMS.
1.2 Assignments may include services described hereafter as Basic Services or as Additional Services
of TRANSYSTEMS.
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.
TranSystems Corporation
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SECTION 2 - BASIC SERVICES OF TRANSYSTEMS
2.1 General
2.1.1 Perform professional engineering services in connection with the Project as hereinafter stated.
2.1.1.1 The Scope of Services to be furnished by TRANSYSTEMS during the Bridge Inspection,
Structural Analysis & Report Phase is included in Section 2.2 hereafter and in more
complete detail in Appendix A attached hereto and made part of this Agreement.
2.1.1.2 Develop and include in Appendix A of this Agreement, a project design schedule in
which TRANSYSTEMS shall include, in an acceptable level of detail, the steps and
milestone dates to be undertaken by TRANSYSTEMS 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
TRANSYSTEMS's reasonable control. The progress design schedule shall consist of a
tabular list of milestones and calendar days for each phase of services.
2.1.1.3 The Scope of Services to be famished by TRANSYSTEMS during the Design 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 TRANSYSTEMS during the Bidding Phase
will be negotiated in full and added by an amendment to this Agreement.
2.1.1.5 The Scope of Services to be furnished by TRANSYSTEMS during the Construction
Phase, if any, 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 Bridge Inspection, Structural Analysis & Report Phase Services
2.2.1 Structural & Restoration Inspection
2.2.1.1 Perform in-depth structural & rehabilitation inspection of both bridges in accordance with
NBIS, AHTD & AASHTO standards.
TranSystcros Corporation 2 of 21 Historic Bridges Rehab Project
2.2.1.2 Inspect all exposed surfaces of the two historical bridges by whatever means is necessary
to access all areas, e.g. ladders, free -climbing techniques, snooper truck, etc.
2 2 1 3 Inspect concrete superstructure elements for cracks, spalls, scaling, honeycombing, map
cracking, rust stains, moisture penetration, exposed rebar, etc. Areas of concrete showing
evidence of deterioration shall be hammer sounded to determine extent of spalling or
delamination. Areas of deterioration shall be recorded by type on sketch drawings of the
member.
2.2.1.4 Substructure units shall be examined for evidence of settlement or tilting. Plumbness
shall be checked with plumb bobs or spirit levels. The abutments and piers shall be
inspected for cracks, spalls, deteriorated pointing, moisture penetration, exposed rebar,
etc. Areas of deterioration shall be recorded by type on sketch drawings of the member.
Bridge seat areas shall be inspected to note defects in bearing pedestals, backwalls and
bearings. Exposed footing elements shall also be noted. Any evidence of substructure
movement shall be noted with a recommendation of subsurface investigation, if
necessary.
2.2.1.5 Decks and overlays shall be checked visually for cracking, leaching, scaling, pot -holes,
spalling or any other evidence of deterioration. The underside of the deck shall be
examined for leaching, rust stains or other evidence of deterioration. Areas of slab
defects shall be recorded on sketches of the deck undersides.
2.2.1.6 In addition to the main bridge elements, the consultant shall inspect and evaluate bridge
deck joints, bridge drainage, railings, sidewalks, slope erosion and approach guardrail, as
appropriate.
2.2.1.7 Digital pictures shall be taken of all structural defects and general views of bridge
components with identification and descriptions added to each digital photo.
2.2.2 Structural Analysis & Rating
2.2.2.1 Perform structural analysis on existing structures in accordance with AASHTO and
AHTD requirements. Analyze bridges for standard H and HS vehicles, as well as any
unique AHTD standard vehicles. Where losses and deterioration have been measured in
the field, the bridge shall be analyzed "as -built" and the losses subtracted from the
members and the load ratings recalculated.
TmnSystems Corporation
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2.2.2.2 All areas of structural defects, especially those that affect load capacity of a member shall
be sketched in the field to locate the defect and adequately show its' extent. if necessary
for clarity, sketches of defects shall be redrawn in the office prior to submission.
2.2.2.3 Sufficient field dimensions shall be obtained of the bridges to permit an accurate
structural analysis to be performed. This will include such information as the overall
length and width of the structure, layout and configuration of the primary load carrying
elements and a determination of the dead load of the structure.
2.2.2.4 Perform structural analysis on bridges based on the proposed repair work and utilize new
load ratings in determining recommendations based on the cost -benefit.
2.2.3 Findings & Feasibility Report
2.2.3.1 Submit three original final reports for the City of Fayetteville that includes an executive
summary with recommendations and costs.
2.2.3.2 The report shall be signed, sealed and dated by a Professional Engineer licensed in the
State of Arkansas.
2.2.3.3 The detailed body of the report shall include at a minimum the following items:
2.2.3.3.1 Alternative methods of repair and preservation with associated quantities & costs
and, if applicable, grouped by tasks requiring immediate action, short range
projects and long range projects.
2.2.3.3.2 Recommendation of any weight limit signs that need to be installed or any other
safety issues that need to be addressed by the City.
2.2.3.3.3 Recommendation of any additional bridge inspection that may need to be
scheduled based on your findings.
2.2.3.3.4 All sketches, inspection reports, photos and other documents.
2.2.3.3.5 Load rating summary and analysis.
2.2.3.4 Submit electronic Acrobat Reader files of all final documentation required above.
2.3 Design Services
2.3.1 The scope of Design Phase Services, if any, will be described in detail in a future amendment
to this Agreement.
TmnSystems Corporation
4 of 21 Historic Bridges Rehab Project
2.4 Bidding Phase
2.4.1 The scope of Bidding Phase Services, if any, will be described in detail in a future
amendment to this Agreement.
2.5 Construction Phase
2.5.1 The scope of Construction Phase Services, if any, will be described in detail in a future
amendment to this Agreement.
SECTION 3 - ADDITIONAL SERVICES OF TRANSYSTEMS
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by TRANSYSTEMS, TRANSYSTEMS 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 Grant and Loan Assistance
Prepare applications and supporting documents for governmental grants, loans, or advances.
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 Fumishing 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.
TtanSystems Corporation
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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.
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 TRANSYSTEMS's control, TRANSYSTEMS 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 TRANSYSTEMS If CITY OF FAYETTEVILLE indicates in
writing that all or parts of such Contingent Additional Services are not required,
TRANSYSTEMS 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
TRANSYSTEMS:
4.1 Provide aerial mapping for TRANSYSTEMS's use.
4.2 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
4.3 Assist TRANSYSTEMS by placing at TRANSYSTEMS's disposal all available information
pertinent to the assignment including previous reports and any other data relative thereto.
TmnSystems Corporation
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4.4 Guarantee access to and make all provisions for TRANSYSTEMS to enter upon public and
private property as required for TRANSYSTEMS 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 TRANSYSTEMS and render in writing decisions pertaining
thereto.
4.6 Provide such professional legal, accounting, financial, and insurance counseling services as may
be required for the Project.
4.7 Designate in writing a person to act as CITY OF FAYETTEVILLE's representative with respect
to the services to be performed under this Agreement. Such person shall have complete authority
to transmit instructions, receive information, interpret and define CITY OF FAYETTEVILLE's
policies and decisions with respect to materials, equipment, elements and systems to be used in
the Project, and other matters pertinent to the services covered by this Agreement.
4.8 Give prompt written notice to TRANSYSTEMS whenever CITY OF FAYETTEVILLE observes
or otherwise becomes aware of any defect in the Project.
4.9 Fumish 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. Unless
otherwise described in the attached Scope of Work.
4.10 Pay for placement of legal notices and advertisements in newspapers or other publications
required by the Project.
4.11 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
written comments to TRANSYSTEMS 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. TRANSYSTEMS 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.
TranSystems Corporation
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SECTION 6 - PAYMENTS TO TRANSYSTEMS
6.1 Compensation
CITY OF FAYETTEVILLE shall pay TRANSYSTEMS an amount not to exceed $ 58,598.00 in
accordance with the provisions described in the following paragraphs.
6.1.1 Bridge Inspection, Structural Analysis/Load Rating & Findings/Feasibility Report
For the Bridge Inspection, Structural Analysis/Load Rating & Findings/Feasibility Report described
herein, CITY OF FAYETTEVILLE shall pay TRANSYSTEMS for time spent on the project at the rates
shown in attached Appendix A-2 for each classification of TRANSYSTEMS's personnel. In addition,
reimbursable expenses, including but not limited to printing, courier service, reproduction, and travel will
be billed. The total amount paid to TRANSYSTEMS under this agreement for these phases will not
exceed $ 58,598.00. For informational purposes, a breakdown of TRANSYSTEMS's estimated costs is
included in Appendix A-2. The rates shown in Appendix A-2 will be increased annually with the first
increase effective on or about September 1, 2010.
6.1.2 Property Surveys and Property Acquisition Documents
For Property Surveys and Property Acquisition Documents, if any, CITY OF FAYETTEVILLE shall pay
TRANSYSTEMS an amount to be negotiated at a later date and added by an amendment to this
Agreement.
6.1.3 Geotechnical Services and ARKUPS
For Geotechnical Services, if any, CITY OF FAYETTEVILLE shall pay TRANSYSTEMS an amount to
be negotiated at a later date and added by an amendment to this Agreement.. For Utility Marking
Services, if any, CITY OF FAYETTEVILLE shall pay TRANSYSTEMS an amount to be negotiated at a
later date and added by an amendment to this Agreement..
6.1.4 Preliminary Design
For the Preliminary Design, if any, CITY OF FAYETTEVILLE shall pay TRANSYSTEMS an amount to
be negotiated at a later date and added by an amendment to this Agreement.
6.1.5 Final Design
For the Final Design, if any, CITY OF FAYETTEVILLE shall pay TRANSYSTEMS an amount to be
negotiated at a later date and added by an amendment to this Agreement.
Tmnsystems Corporation
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6.1.6 Bidding Services
For the Bidding Services, if any, CITY OF FAYETTEVILLE shall pay TRANSYSTEMS an amount to
be negotiated at a later date and added by an amendment to this Agreement.
6.1.7 Construction Phase Services
For the Construction Phase, if any, CITY OF FAYETTEVILLE shall pay TRANSYSTEMS an amount to
be negotiated at a later date and added by an amendment to this Agreement.
6.1.8 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services", compensation to
TRANSYSTEMS 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 TRANSYSTEMS'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
TRANSYSTEMS 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 Findings & Feasibility Report shall be made upon
CITY OF FAYETTEVILLE's approval and acceptance with the satisfactory completion of the Findings
& Feasibility Report for the Project
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of
TRANSYSTEMS'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
TRANSYSTEMS 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, TRANSYSTEMS
TranSystems Corporation
901'21 Historic Bridges Rehab Project
shall execute and deliver to CITY OF FAYETTEVILLE a release of all claims for payment against CITY
OF FAYETTEVILLE arising under or by virtue of this Agreement, except claims which are specifically
exempted by TRANSYSTEMS 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 TRANSYSTEMS or his sureties under this Agreement or applicable
performance and payment bonds, if any. Final payment for each phase of services shall be made upon
CITY OF FAYETTEVILLE's approval and acceptance with the satisfactory completion of each phase for
the Project.
6.5 Fee Changes
Subject to the City Council approval, adjustment of the NTE amounts may be made should
TRANSYSTEMS 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.
Any unused portion of the fees, not billable due to delays beyond the Engineer's control, will be increased
6% annually with the first increase effective on or about September 1, 2010.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, TRANSYSTEMS 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
TranSystems Corporation
$1,000,000 Combined Single Limit
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Automobile Liability:
Bodily Injury and
Property Damage
Professional Liability Insurance
$1,000,000 Combined Single Limit
$1,000,000 Each Claim
TRANSYSTEMS 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 TRANSYSTEMS as additional insureds, or, to endorse CITY OF
FAYETTEVILLE and TRANSYSTEMS 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 TRANSYSTEMS.
7.1.3 CITY OF FAYETTEVILLE and TRANSYSTEMS 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 TRANSYSTEMS'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
TRANSYSTEMS for damage or liability covered by any construction Contractor's policy of
insurance.
7.2 Professional Responsibility
7.2.1 TRANSYSTEMS will exercise reasonable skill, care, and diligence in the performance of
TRANSYSTEMS's services and will carry out its responsibilities in accordance with
customarily accepted professional engineering practices. CITY OF FAYETTEVILLE will
promptly report to TRANSYSTEMS any defects or suspected defects in TRANSYSTEMS's
services of which CITY OF FAYETTEVILLE becomes aware, so that TRANSYSTEMS can
take measures to minimize the consequences of such a defect. CITY OF FAYETTEVILLE
and TRANSYSTEMS 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 TRANSYSTEMS
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7.2.2 In addition, TRANSYSTEMS 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 TRANSYSTEMS'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 TRANSYSTEMS relating to construction costs and schedules,
operation and maintenance costs, equipment characteristics and performance, and operating results are
based on TRANSYSTEMS's experience, qualifications, and judgment as a design professional. Since
TRANSYSTEMS 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, TRANSYSTEMS does not
guarantee that actual rates, costs, performance, schedules, and related items will not vary from cost
opinions and projections prepared by TRANSYSTEMS
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
TRANSYSTEMS'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 TRANSYSTEMS
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 TRANSYSTEMS is given:
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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 seryices or other work,
7.5.3.2 Any payment due to TRANSYSTEMS at the time of termination may be adjusted to
cover any additional costs to CITY OF FAYETTEVILLE because of TRANSYSTEMS's
default.
7.5.4 If termination for default is effected by TRANSYSTEMS, 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 TRANSYSTEMS for services rendered and
expenses incurred prior to the termination, in addition to termination settlement costs
reasonably incurred by TRANSYSTEMS 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,
TRANSYSTEMS shall:
7.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
7.5.5.2 After receipt of payment for all completed work, 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
TRANSYSTEMS 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 TRANSYSTEMS to fulfill contractual obligations, it is
determined that TRANSYSTEMS had not failed to fulfill contractual obligations, the
termination shall be deemed to have been for the convenience of CITY OF
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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 TRANSYSTEMS are suspended or delayed by CITY OF FAYETTEVILLE
or by other events beyond TRANSYSTEMS's reasonable control, TRANSYSTEMS shall be entitled to
additional compensation and time for reasonable costs incurred by TRANSYSTEMS in temporarily
closing down or delaying the Project.
7.7 Rights and Benefits
TRANSYSTEMS'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 TRANSYSTEMS 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 TRANSYSTEMS in the performance of this Agreement, and disputes
concerning payment.
7.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 7.8.3, but an action is initiated prior to exhaustion
of these procedures, such action shall be stayed, upon application by either party to a court of
proper jurisdiction, until the procedures in Paragraphs 7.8.3 and 7.8.4 have been complied
with.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising prior to the making of final payment promptly after the occurrence of
any incident, action, or failure to act upon which a claim is based, the party seeking relief
shall serve the other party with a written Notice;
7.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give TRANSYSTEMS 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
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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 TRANSYSTEMS 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 TRANSYSTEMS 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 TRANSYSTEMS for services rendered by TRANSYSTEMS.
7.10 Publications
Recognizing the importance of professional development on the part of TRANSYSTEMS's employees
and the importance of TRANSYSTEMS's public relations, TRANSYSTEMS may prepare publications,
such as technical papers, articles for periodicals, and press releases, pertaining to TRANSYSTEMS'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 TRANSYSTEMS 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 TRANSYSTEMS's activities pertaining to any such publication shall be for TRANSYSTEMS'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 TRANSYSTEMS
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)
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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. TRANSYSTEMS may retain reproduced copies of drawings and copies of
other documents.
Engineering documents, drawings, and specifications prepared by TRANSYSTEMS as part of the
Services shall become the property of CITY OF FAYETTEVILLE when TRANSYSTEMS has been
compensated for all Services rendered, provided, however, that TRANSYSTEMS shall have the
unrestricted right to their use. TRANSYSTEMS 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 TRANSYSTEMS
Any files delivered in electronic medium may not work on systems and software different than those with
which they were originally produced. TRANSYSTEMS 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:
TranSystems Corporation
CITY OF FAYETTEVILLE's address.
Chris Brown, City Engineer
City of Fayetteville
113 West Mountain Street
Fayetteville, AR 72701
TRANSYSTEMS's address -
Shawn Turner, PE
TranSystems Corporation
115 S. Sixth Street, Suite B
Independence, KS, 67301
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7.15 Successor and Assigns
CITY OF FAYETTEVILLE and TRANSYSTEMS 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 TRANSYSTEMS shall assign, sublet, or transfer his
interest in the Agreement without the written consent of the other.
7.16 Controlling Law
This Agreement shall be subject to, interpreted and enforced according to the laws of the State of
Arkansas without regard to any conflicts of law provisions.
7.17 Entire Agreement
This Agreement represents the entire Agreement between TRANSYSTEMS 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
TRANSYSTEMS a purchase order, no preprinted terms thereon shall become a part of this Agreement.
Said purchase order document, whether or not signed by TRANSYSTEMS, 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 TRANSYSTEMS
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
TRANSYSTEMS 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 TRANSYSTEMS shall be and shall remain liable, in accordance with applicable law, for all
damages to CITY OF FAYETTEVILLE caused by TRANSYSTEMS'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.
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8.1.3 TRANSYSTEMS's obligations under this clause are in addition to TRANSYSTEMS'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 TRANSYSTEMS 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 TRANSYSTEMS 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 TRANSYSTEMS 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. TRANSYSTEMS shall also maintain the financial information
and data used by TRANSYSTEMS 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. CITY OF FAYETTEVILLE, the
State or any of their authorized representatives shall have access to all such books, records,
documents and other evidence for the purpose of inspection, audit and copying during normal
business hours. TRANSYSTEMS 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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