HomeMy WebLinkAbout199-09 RESOLUTIONRESOLUTION NO. 199-09
A RESOLUTION APPROVING A CONTRACT WITH GARVER, LLC IN
AN AMOUNT NOT TO EXCEED $88,340.00 FOR ENGINEERING
SERVICES ASSOCIATED WITH THE REHABILITATION OF THE LAKE
WILSON SPILLWAY; AND APPROVING A BUDGET ADJUSTMENT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas, hereby
approves a contract with Garver, LLC in an amount not to exceed $88,340.00 for
engineering services associated with the rehabilitation of the Lake Wilson spillway. 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 budget adjustment recognizing cost reimbursement from FEMA.
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PASSED and APPROVED this 15th day of September, 200T.�,•• c 1Y OF G�
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APPROVED:
By
ATTEST.
By: atLliLd� \ !'/iLcl.Gtt/
SONDRA E. SMITH, City Clerk/Treasurer
Chris Brown
Submitted By
City of Fayetteville
Staff Review Form
City Council Agenda Items
or
Contracts
September 15, 2009
City Council Meeting Date
Engineering
Division
Action Required:
Development Services
Department
A resolution to award a contract to Garver, LLC in an amount not to exceed $88,340.00 for engineering services
associated with the rehabilitation of the Lake Wilson spillway and to approve a budget adjustment of $88,340.00.
88, 340.00
Cost of this request
28,670.00
4270.9270.5314.00 $
Account Number
Category / Project Budget
21,360.21
Lake Wilson Spillway Repair
Program Category / Project Name
Flood Damage Repair
Funds Used to Date Program / Project Category Name
04030 $ 7,309.79
Project Number
Budgeted Item
I x I
Replacement Fund
Remaining Balance Fund Name
Budget Adjustment Attached
DepartmentDD
cu
City Attorney
Pa..� ec. . e),,,
Finance and Internal Service Director
IISOR'1001 Previous Ordinance or Resolution #
Date
Original Contract Date:
Original Contract Number:
Dale
9- z- 2.064
Date
p Date
tel
ate
Comments:
trayeCeville
CITY COUNCIL AGENDA
City Council Meeting of September 15, 2009
To: Mayor and City Council
Thru: Don Marr, Chief of Staff 4v
Jeremy Pate, Development Services Director Ut
Chris Brown, City Engineer 0,3
From: Sarah Wrede, Staff Engineer SW
Date: August 27, 2009
Subject: A resolution to award a contract to Garver, LLC in an amount not to exceed $88,340.00
for engineering services associated with the rehabilitation of the Lake Wilson spillway.
RECOMMENDATION
Staff recommends approval of a contract with Garver, LLC for engineering services associated with
the rehabilitation of the Lake Wilson spillway.
BACKGROUND
In 2004, severe storms and flooding resulted in the partial collapse of a portion of the Lake Wilson
spillway and downstream channel. The City applied for and received disaster relief funds from
FEMA in order to "bring the dam structure back to its original structural integrity and comply with
the historical preservation requirements and to bring it back to its original aesthetic appearance."
The City hired Jacobs in 2005 to perform the preliminary engineering for the project. The work to
be preformed on the spillway is required to be permitted through the Arkansas Natural Resources
Commission and conform to the "Rules Governing Design and Operation of Dams" as administered
by the ANRC. An amendment to the Jacobs contract was made to perform a dam classification and
dam breach analysis in order to determine if ANRC's criteria can be met and if the spillway can be
rebuilt in the original configuration. ANRC determined based on the completed study the dam's
hazard class rating to be low.
DISCUSSION:
At the conclusion of Jacob's contract the City held a selection committee meeting which selected
Garver to continue the engineering design. Garver's scope of work includes surveys, geotechnical
services, coordination with other agencies, environmental services, a drainage study, conceptual
design, preliminary design, final design, and bidding services.
The contract amount is not to exceed $88,340. Payment will be made to Garver based on their
hourly rates for the hours spent on the project. The project schedule for Garver's work is 100 days
not including time for the City to review the conceptual and preliminary designs.
The City has received a time extension for this project from FEMA Region VI until November 30,
2010. Staying on schedule for engineering design and the following construction is critical to
ensure the government disaster relief funds.
City Council Agenda Request_Wilson Dam
i
aye..evL e
ARKAN A5
City Council Meeting of September 15, 2009
BUDGET IMPACT
The engineering services to repair the spillway are an eligible expense for reimbursement from the
Arkansas Department of Emergency Management. The current FEMA project work sheet indicates
the project cost to be $294,736.00; however, the City's current estimate is $443,369.74 This
includes $109,029.74 in project costs to date, $88,340 for the engineering design, and $246,000 as a
preliminary construction estimate. Staff has been in conversation with ADEM concerning the
overall project costs totaling more than the original $294,736.00 allotted on the project worksheet.
ADEM has responded by email that a new project cost can be requested once the construction
estimate has been determined. ADEM will submit the costs to FEMA for approval but they feel
confident that the request will be approved.
City Council Agenda Request_Wilson Dam
RESOLUTION NO.
A RESOLUTION APPROVING A CONTRACT WITH GARVER,
LLC IN AN AMOUNT NOT TO EXCEED $88,340.00 FOR
ENGINEERING SERVICES ASSOCIATED WITH THE
REHABILITATION OF THE LAKE WILSON SPILLWAY; AND
APPROVING A BUDGET ADJUSTMENT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS: •
Section 1. That the City Council of the City of Fayetteville, Arkansas,
hereby approves a contract with Garver, LLC in an amount not to exceed
$88,340.00 for engineering services associated with the rehabilitation of the Lake
Wilson spillway. 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 budget adjustment recognizing cost reimbursement from
FEMA.
PASSED and APPROVED this 15th day of September, 2009.
APPROVED: ATTEST:
By:�. . , ,
B By:
L O LD JO AN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
fp rd. t-
MIKE BEEBE
GOVERNOR
STATE OF ARKANSAS
DEPARTMENT OF EMERGENCY MANAGEMENT
BUILDING #9501
RECEIVED CAMP JOSEPH T. ROBINSON
NORTH LITTLE ROCK, ARKANSAS 72199-9600
AUG 2 4 2009 (501) 683-6700
FAX (501) 683-7890
ENGINEERING DIV. www.adem.arkansas.gov
August 21, 2009
Mr. Chris Brown, P.E.
City Engineer
125 W. Mountain Street
Fayetteville, AR 72701
RE: PW 388
FEMA 1516 -DR -AR
Lake Wilson Dam
Dear Mr. Brown:
5eGURITVgp
"PA.
Fq
DAVID MAXWELL
DIRECTOR
This letter is in reference to your request for an extension on the Lake Wilson Dam repairs (PW
388). Your request was submitted to FEMA Region VI and the extension has been granted until
November 30, 2010.
For your files, I have enclosed a copy of FEMA's approval of this extension. Please ensure your
timely submission of quarterly progress reports. We must provide FEMA Region VI with
updates on this project to continue the eligibility of funding.
If you have questions, please to contact Scott Bass, Recovery Branch Manager at 501-683-6700
or Scott.Bass@adenl.arkansas.gov.
RGG:sb
Sincerely,
ichard G. Griffin
Disaster Management Division Director
Sarah Wrede - Lake Wilson Project
From:
To:
Date:
Subject:
"Bass, Scott" <Scott.Bass@adcm.arkansas.gov>
'Sarah Wrede' <swrede@ci.fayetteville.ar.us>
8/26/2009 10:52 AM
Lake Wilson Project
Page 1 of 1
Per our conversation about the overrun/additional costs.
When you have received the construction estimate on the project and it's in accordance with the
project scope of work that FEMA has determined, please submit this information to me. We will
request a version of the project be written to include the new estimate and any engineering costs. This
will be the basis of the project. If the city is anticipating on going over the new project costs, then I
need to know in order to request an overrun. This will require approval also. I am confident that this
will be approved, but need FEMA to sign off on the final approval.
Let me know if you need anything else. Thanks
Scott Bass
Disaster Recovery Branch Manager
AR Department of Emergency Management
Bldg. 9501, Comp JT Robinson
N. Little Rock, AR 72199
0:501.683.6700
C: 501.319.4325
F: 501.683.7892
FEMA 1819/1834/1845 -DR -AR
JFO #: 501-918-7681
Fax #: 501-683-7892
The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential or privileged material. Any
review, distribution, or other unauthorized use of the information by persons or entities other than the intended recipient is prohibited. If you received
this communication in error, please contact the sender and delete the material from any computer.
file://C:\Documents and Settings\swrede\Local Settings\Temp\XPgrpwise\4A9513F8FAY... 8/27/2009
k
AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
GARVER, LLC
THIS AGREEMENT is made as of &p-i-e_040.Qr 15 2009, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and Garver, LLC with offices located in Fayetteville (hereinafter called GARVER).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the planning, design, permitting, and construction of projects within the City of Fayetteville, and in
particular, engineering and surveying services related to proposed improvements to the Lake Wilson
Spillway, or as further described in Appendix A. Therefore, CITY OF FAYETTEVILLE and GARVER
in consideration of their mutual covenants agree as follows:
GARVER shall serve as CITY OF FAYETTEVILLE's professional engineering consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYEI I'EVILLE during the performance of GARVER's services. All services shall be performed under
the direction of a professional engineer registered in the State of Arkansas and qualified in the particular
field. If Construction Phase Services are to be provided by GARVER under this Agreement, the
construction shall be executed under the observation of a professional engineer registered in the State of
Arkansas in accordance with Arkansas Code Amended §22-9-I01.
SECTION 1- AUTHORIZATION OF SERVICES
1.1
Services on any assignment shall be undertaken only upon written Authorization of CITY
OF FAYETTEVILLE and agreement of GARVER Assignments may include services
described hereafter as Basic Services or as Additional Services of GARVER.
1.2 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City
Council in advance of the change in scope, costs, fees, or delivery schedule.
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
I of 22 Lake Wilson Spillway Improvements
SECTION 2 - BASIC SERVICES OF GARVER
2.1 General
2.1.1 Perform professional design services in connection with the Project as hereinafter
stated, which shall include normal civil engineering services, surveying services,
and support incidental thereto.
2.1.1.1 The Scope of Services to be furnished by GARVER during the Concept Design
Phases 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 GARVER during the remainder of
the Design Phase is included in Section 2.2 hereafter and in Appendix A
attached hereto and made a part of this Agreement.
2.1.1.3 The Scope of Services to be furnished by GARVER during the Bidding Phase
is included in Section 2.2 hereafter and in Appendix A attached hereto and
made a part of this Agreement.
2.1.1.4 The Scope of Services to be furnished by GARVER during the Construction
Phase will be negotiated in full and added by an amendment to this Agreement.
2.1.2 Execution of this agreement will authorize the Engineer to proceed with the services
as described herein.
2.2 Design Services
2.2.1 GARVER will perform engineering and related services in order to prepare
drawings and related services as described in Appendix A.
2.2.1.1 Text documents shall be provided to CITY OF FAYETTEVILLE in
Microsoft® Word version 2007 or later software. Contract drawings shall be
prepared using Garver standard borders, sheet sizes, title blocks and CADD
standards. GARVER may use their normal software for the preparation of
drawings but the final product shall be provided to CITY OF
FAYE 1 1'EVILLE in Autodesk® AutoCAD version 2004 or later.
Contract - Prime Agreement
GARVER — CITY OF FAYETTEVILLE
2 of 22 Lake Wilson Spillway Improvements
2.2.1.2 Develop and include in Appendix A of this Agreement for approval by CITY
OF FAYE 1 1'EVILLE, a project design schedule in which GARVER shall
include, in an acceptable level of detail, the steps and milestone dates to be
undertaken by GARVER in the completion of this design. This Schedule shall
include reasonable allowances for review and approval times required by CITY
OF FAYEITEVILLE, performance of services by CITY OF
FAYETTEVILLE's consultants, and review and approval times required by
public authorities having jurisdiction over the Project. This schedule shall be
equitably adjusted as the Project progresses, allowing for changes in scope,
character or size of the Project requested by CITY OF FAYETTEVILLE, or
for delays or other causes beyond GARVER's reasonable control. The
progress design schedule shall consist of a tabular list of milestones and
calendar days for each phase of services.
2.2.1.3 When requested by the CITY OF FAYE 1 1 EVILLE's City Engineer, prepare
for and attend up to two Committee meetings and one City Council meeting to
provide support for the project for each submittal phase.
2.2.1.4 Fully disclose all subcontract agreements including the name and address of the
subconsultant, the scope of services to be provided, and the value of the
subcontract agreement.
2.2.1.5 Incorporate into all subcontract agreements for planning and design
engineering services the applicable milestone dates from the performance
schedule contained in Appendix A.
2.2.2 Design shall be reviewed by CITY OF FAYETTEVILLE, or such parties as CITY
OF FAYETTEVILLE shall designate, at the applicable completion levels outlined
in Appendix A.
2.3 Bidding Phase
2.3.1 The scope of Bidding Phase Services to be furnished by GARVER is described in
detail in Appendix A attached hereto and made a part of this Agreement.
Contract - Prime Agreement
GARVER — CITY OF FAYETTEVILLE
3 of 22 Lake Wilson Spillway Improvements
2.4 Construction Phase
2.4.1 The scope of Construction Phase Services will be described in detail in a future
amendment to this Agreement.
SECTION 3 - ADDITIONAL SERVICES OF GARVER
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to
in writing by GARVER, GARVER shall furnish or obtain from others Additional Services of the
following types that are not considered normal or customary Basic Services. The scope of Additional
Services may include:
3.1.1 Financial Consultation
Consult with CITY OF FAYETTEVILLE's fiscal agents and bond attorneys and
provide such engineering data as required for any bond prospectus or other financing
requirements.
3.1.2 Administrative Assistance
Provide Contract and Project administration to the degree authorized by CITY OF
FAYETTEVILLE.
3.1.3 Furnish renderings or models of the Project for CITY OF FAYETTEVILLE's use.
3.1.4 Miscellaneous Studies
Investigations involving detailed consideration of operations, maintenance, and overhead expenses,
and the preparation of rate schedules, earnings, and expense statements; feasibility studies;
appraisals and valuations; detailed quantity surveys of material, equipment, and labor; and audits or
inventories required in connection with construction performed by CITY OF FAYETTEVILLE.
3.1.5 Preparing to serve or serving as a witness for CITY OF FAYETTEVILLE in any
litigation or other proceeding involving the Project.
3.1.6 Extra Services
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
4 of 22 Lake Wilson Spillway Improvements
3.1.6.1 Services not specifically defined heretofore that may be authorized by CITY OF
FAYETTEVILLE.
3.2 Contingent Additional Services
3.2.1 If services described under Contingent Additional Services in Paragraph 3.2 are
required due to circumstances beyond GARVER's control, GARVER shall notify
CITY OF FAYE11'EVILLE and request a formal contract amendment approved by the
Mayor and the City Council prior to commencing such services. If CITY OF
FAYETTEVILLE deems that such services described in 3.2 are not required CITY OF
FAYETTEVILLE shall give prompt written notice to GARVER If CITY OF
FAYETTEVILLE indicates in writing that all or parts of such Contingent Additional
Services are not required, GARVER shall have no obligation to provide those services.
3.2.2 Making revisions in Drawings, Specifications, or other documents when such revisions
are:
3.2.2.1 Required because of inconsistent approvals or instructions previously given by CITY
OF FAYE 1 I'EVILLE, 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 GARVER:
4.1 Provide aerial mapping for GARVER's use.
4.2 Provide full information as to CITY OF FAYETTEV 1LLE's requirements for the Project.
4.3 Assist GARVER by placing at GARVER's disposal all available information pertinent to
the assignment including previous reports and any other data relative thereto.
4.4 Guarantee access to and make all provisions for GARVER to enter upon public and
private property as required for GARVER to perform his services under this Agreement.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
5 of 22 Lake Wilson Spillway Improvements
4.5 Examine all studies, reports, sketches, cost opinions, drawings, proposals, and other
documents presented by GARVER and render in writing decisions pertaining thereto.
4.6 Provide such professional legal, accounting, financial, and insurance counseling services
as may be required for the Project.
4.7 Designate in writing a person to act as CITY OF FAYEI 1EVILLE's representative with
respect to the services to be performed under this Agreement. Such person shall have
complete authority to transmit instructions, receive information, interpret and define
CITY OF FAYETTEVILLE's policies and decisions with respect to materials,
equipment, elements and systems to be used in the Project, and other matters pertinent to
the services covered by this Agreement.
4.8 Give prompt written notice to GARVER whenever CITY OF FAYETTEVILLE observes
or otherwise becomes aware of any defect in the Project.
4.9 Furnish approvals and permits from all 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.
4.11 Furnish, or direct GARVER to provide, necessary Additional Services as stipulated in
Section 3 of this Agreement or other services as required
CITY OF FAYETTEVILLE and/or its representative will review all documents and provide written
comments to GARVER in a timely manner.
SECTION 5 - PERIOD OF SERVICE
5.1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
5.2 The provisions of this Agreement have been agreed to in anticipation of the orderly
progress of the Project through completion of the services stated in the Agreement.
GARVER will proceed with providing the authorized services immediately upon receipt
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
6 of 22 Lake Wilson Spillway Improvements
of written authorization from CITY OF FAYETTEVILLE. Said authorization shall
include the scope of the services authorized and the time in which the services are to be
completed.
SECTION 6 - PAYMENTS TO GARVER
6.1 Compensation
CITY OF FAYETTEVILLE shall pay GARVER an amount not to exceed $88,340 in accordance
with the provisions described in the following paragraphs. CITY OF FAYETTEVILLE shall pay
GARVER for time spent on the project at the rates shown in attached Appendix A-2 for each
classification of GARVER's personnel. In addition, reimbursable expenses, including but not limited
to printing, courier service, reproduction, and travel will be paid to GARVER For informational
purposes, a breakdown of GARVER's estimated costs is included in Appendix A-2. The rates shown
in Appendix A-2 will be increased annually with the first increase effective on or about May 1, 2010.
Under -runs in any phase may be used to offset overruns in another phase as long as the overall
contract amount is not exceeded.
6.1.1 Design Surveys and Conceptual Design
For the Design Surveys and Conceptual Design (including the Drainage Study) described herein,
CITY OF FAYETTEVILLE shall pay GARVER an amount estimated to be $17,590.
6.1.2 Geotechnical Services and Utility Location Services
For Geotechnical Services, CITY OF FAYETTEVILLE shall pay GARVER a lump sum amount
which will be negotiated with Grubbs, Hoskyn, Barton & Wyatt or other consultant, as a
subconsultant to the Engineer, and approved by CITY OF FAYETTEVILLE Due to the remoteness
of the site, Utility Marking Services, are not included in this contract. The fee for Geotechnical
Services has been estimated to be approximately $4,000, but may exceed this estimate.
6.1.3 Preliminary Design
For the Preliminary Design described herein, CITY OF FAYETTEVILLE shall pay GARVER an
amount estimated to be $24,940.
6.1.4 Final Design
Contract - Prime Agreement
GARVER - CITY OF FAYETTEVILLE
7 of 22 Lake Wilson Spillway Improvements
For the Final Design described herein, CITY OF FAYETTEVILLE shall pay GARVER an amount
estimated to be $32,220.
6.1.5 Bidding Services
For the Bidding Services described herein, CITY OF FAYETTEVILLE shall pay GARVER an
amount estimated to be $9,590.
6.1.6 Construction Phase Services
For the Construction Phase, CITY OF FAYETTEVILLE shall pay GARVER an amount to be
negotiated at a later date.
6.1.7 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services",
compensation to GARVER shall be negotiated at the time Additional services are authorized.
6.2 Statements
Monthly statements for each calendar month shall be submitted to CITY OF FAYETTEVILLE or
such parties as CITY OF FAYETTEVILLE may designate consistent with GARVER's normal billing
schedule. Once established, the billing schedule shall be maintained throughout the duration of the
Project. Applications for payment shall be made in accordance with a format to be developed by
GARVER and approved by CITY OF FAYETTEVILLE.
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of GARVER's
statement is disputed by CITY OF FAYETTEVILLE, the undisputed portion shall be paid by CITY
OF FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE shall advise GARVER in writing
of the basis for any disputed portion of any statement. CITY OF FAYETTEVILLE will make
reasonable effort to pay invoices within 30 days of date the invoice is approved, however, payment
within 30 days is not guaranteed.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
8 of 22 Lake Wilson Spillway Improvements
6.4 Final Payment
Upon satisfactory completion of the work performed under this Agreement, as a condition before
final payment under this Agreement, or as a termination settlement under this Agreement, GARVER
shall execute and deliver to CITY OF FAYETTEVILLE a release of all claims against CITY OF
FAYE 1 1 EVILLE arising under or by virtue of this Agreement, except claims which are specifically
exempted by GARVER to be set forth therein. Unless otherwise provided in this Agreement or by
State law or otherwise expressly agreed to by the parties to this Agreement, final payment under this
Agreement or settlement upon termination of this Agreement shall not constitute a waiver of CITY
OF FAYETTEVILLE's claims against GARVER or his sureties under this Agreement or applicable
performance and payment bonds, if any. Final payment for each phase of services shall be made
upon CITY OF FAYETTEVILLE's approval and acceptance with the satisfactory completion of each
phase for the Project.
6.5 Fee Changes
Subject to the City Council approval, adjustment of the NTE amounts may be made should GARVER
establish and CITY OF FAYETTEVILLE agree that there has been or is to be a significant change in
scope, complexity or character of the services to be performed; or if CITY OF FAYETTEVILLE
decides to shorten the duration of work from the time period specified in the Agreement for
completion of work and such modification warrants such adjustment. Changes, modifications or
amendments in scope, price or fees to this Contract, unless noted herein, shall not be allowed without
formal contract amendment approved by the Mayor and the City Council in advance of the change in
scope, cost, fees, or delivery schedule.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, GARVER will maintain (in United
States Dollars) the following minimum insurance coverages:
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
9 of 22 Lake Wilson Spillway Improvements
Type of Coverage
Workers' Compensation
Employers' Liability
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
Professional Liability Insurance
Limits of Liability
Statutory
$500,000 Each Accident
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
$1,000,000 Each Claim
GARVER will provide to CITY OF FAYE 1 1EVILLE certificates as evidence of the specified
insurance within ten days of the date of this Agreement and upon each renewal of coverage.
7.1.2 Construction Contractors shall be required to provide (or CITY OF FAYETTEVILLE
may provide) Owner's Protective Liability Insurance naming CITY OF
FAYETTEVILLE as a Named Insured and GARVER as additional insureds, or, to
endorse CITY OF FAYE11'EVILLE and GARVER ENGINEERS as additional
insureds on construction Contractor's liability insurance policies covering claims for
personal injuries and property damage. Construction Contractors shall be required to
provide certificates evidencing such insurance to CITY OF FAYEI 1'EVILLE and
GARVER. All contract insurance carriers shall be required to list GARVER and CITY
OF FAYETTEVILLE as certificate holders, furnishing copies of the contractor's
insurance certificate to each party.
7.1.3 CITY OF FAYETTEVILLE and GARVER waive all rights against each other and their
officers, directors, agents, or employees for damage covered by property insurance
during and after the completion of GARVER's services. A provision similar to this
shall be incorporated into all Construction Contracts entered into by CITY OF
FAYETTEVILLE, and all construction Contractors shall be required to provide
waivers of subrogation in favor of CITY OF FAYETTEVILLE and GARVER for
damage or liability covered by any construction Contractor's policy of insurance.
Contract — Prime Agreement
GARVER — CITY OF FAYETTEVILLE
10 of 22 Lake Wilson Spillway Improvements
7.2 Professional Responsibility
7.2.1 GARVER will exercise reasonable skill, care, and diligence in the performance of
GARVER's services and will carry out its responsibilities in accordance with
customarily accepted professional engineering practices. CITY OF FAYETTEVILLE
will promptly report to GARVER any defects or suspected defects in GARVER's
services of which CITY OF FAYETTEVILLE becomes aware, so that GARVER can
take measures to minimize the consequences of such a defect. CITY OF
FAYETTEVILLE and GARVER further agree to impose a similar notification
requirement on all construction contractors in the Bid Documents and shall require all
subcontracts at any level to contain a like requirement. CITY OF FAYETTEVILLE
retains all remedies to recover for its damages caused by any negligence of GARVER.
7.2.2 In addition GARVER will be responsible to CITY OF FAYETTEVILLE for damages
caused by its negligent conduct during its activities at the Project Site to the extent
covered by GARVER's Commercial General Liability and Automobile Liability
Insurance policies as specified in Paragraph 7.1.1.
7.3 Cost Opinions and Projections
Cost opinions and projections prepared by GARVER relating to construction costs and schedules,
operation and maintenance costs, equipment characteristics and performance, and operating results
are based on GARVER's experience, qualifications, and judgment as a design professional. Since
GARVER has no control over weather, cost and availability of labor, material and equipment, labor
productivity, construction Contractors' procedures and methods, unavoidable delays, construction
Contractors' methods of determining prices, economic conditions, competitive bidding or market
conditions, and other factors affecting such cost opinions or projections, GARVER does not
guarantee that actual rates, costs, performance, schedules, and related items will not vary from cost
opinions and projections prepared by GARVER.
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
GARVER's services, with an appropriate change in compensation and schedule only after
Fayetteville City Council approval of such proposed changes and, upon execution of a mutually
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acceptable amendment or change order signed by the Mayor of the CITY OF FAYETTEVILLE and
the President or any Vice President of GARVER.
7.5 Termination
7.5.1 This Agreement may be terminated in whole or in part in writing by either party in the
event of substantial failure by the other party to fulfill its obligations under this
Agreement through no fault of the terminating party, provided that no termination may
be effected unless the other party is given:
7.5.1.1 Not Tess 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 GARVER 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,
7.5.3.2 Any payment due to GARVER at the time of termination may be adjusted to cover
any additional costs to CITY OF FAYETTEVILLE because of GARVER's default.
7.5.4 If termination for default is effected by GARVER, or if termination for convenience is
effected by CITY OF FAYE 1 1EVILLE, the equitable adjustment shall include a
reasonable profit for services or other work performed. The equitable adjustment for
any termination shall provide for payment to GARVER for services rendered and
expenses incurred prior to the termination, in addition to termination settlement costs
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reasonably incurred by GARVER relating to commitments which had become firm
prior to the termination.
7.5.5 Upon receipt of a termination action under Paragraphs 7.5.1 or 7.5.2 above, GARVER
shall:
7.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
7.5.5.2 Deliver or otherwise make available to CITY OF FAYETTEVILLE all data,
drawings, specifications, reports, estimates, summaries and such other information
and materials as may have been accumulated by GARVER in performing this
Agreement, whether completed or in process.
7.5.6 Upon termination under Paragraphs 7.5.1 or 7.5.2 above CITY OF FAYEI1'EVILLE
may take over the work and may award another party an agreement to complete the
work under this Agreement.
7.5.7 If, after termination for failure of GARVER to fulfill contractual obligations, it is
determined that GARVER had not failed to fulfill contractual obligations, the
termination shall be deemed to have been for the convenience of CITY OF
FAYETTEVILLE. In such event, adjustments of the agreement price shall be made as
provided in Paragraph 7.5.4 of this clause.
7.6 Delays
In the event the services of GARVER are suspended or delayed by CITY OF FAYETTEVILLE or by
other events beyond GARVER's reasonable control, GARVER shall be entitled to additional
compensation and time for reasonable costs incurred by GARVER in temporarily closing down or
delaying the Project.
7.7 Rights and Benefits
GARVER's services will be performed solely for the benefit of CITY OF FAYETTEVILLE and not
for the benefit of any other persons or entities.
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7.8 Dispute Resolution
7.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all
disputes between CITY OF FAYETTEVILLE and GARVER which arise from, or in
any way are related to, this Agreement, including, but not limited to the interpretation
of this Agreement, the enforcement of its terms, any acts, errors, or omissions of CITY
OF FAYE 1 l'EVILLE or GARVER in the performance of this Agreement, and disputes
concerning payment.
7.8.2 Exhaustion of Remedies Required. No action may be filed unless the parties first
negotiate. If timely Notice is given under Paragraph 7.8.3, but an action is initiated
prior to exhaustion of these procedures, such action shall be stayed, upon application
by either party to a court of proper jurisdiction, until the procedures in Paragraphs 7.8.3
and 7.8.4 have been complied with.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising prior to the making of final payment promptly after the
occurrence of any incident, action, or failure to act upon which a claim is based, the
party seeking relief shall serve the other party with a written Notice;
7.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give GARVER written Notice at the address listed in
Paragraph 7.14 within thirty (30) days after occurrence of any incident, accident, or
first observance of defect or damage. In both instances, the Notice shall specify the
nature and amount of relief sought, the reason relief should be granted, and the
appropriate portions of this Agreement that authorize the relief requested.
7.8.4 Negotiation: Within seven days of receipt of the Notice, the Project Managers for
CITY OF FAYETTEVILLE and GARVER shall confer in an effort to resolve the
dispute. If the dispute cannot be resolved at that level, then, upon written request of
either side, the matter shall be referred to the President of GARVER and the Mayor of
CITY OF FAYETTEVILLE or his designee. These officers shall meet at the Project
Site or such other location as is agreed upon within 30 days of the written request to
resolve the dispute.
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7.9 CITY OF FAYETTEVILLE represents that it has sufficient funds or the means of
obtaining funds to remit payment to GARVER for services rendered by GARVER.
7.10 Publications
Recognizing the importance of professional development on the part of GARVER's employees and
the importance of GARVER's public relations, GARVER may prepare publications, such as technical
papers, articles for periodicals, and press releases, pertaining to GARVER's services for the Project.
Such publications will be provided to CITY OF FAYETTEVILLE in draft form for CITY OF
FAYETTEVILLE's advance review. CITY OF FAYETTEVILLE shall review such drafts promptly
and provide CITY OF FAYETTEVILLE's comments to GARVER. CITY OF FAYETTEVILLE may
require deletion of proprietary data or confidential information from such publications, but otherwise
CITY OF FAYETTEVILLE will not unreasonably withhold approval. The cost of GARVER's
activities pertaining to any such publication shall be for GARVER's account.
7.11 Indemnification
7.11.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend and hold harmless CITY OF FAYETTEVILLE and GARVER from
and against any and all loss where loss is caused or incurred or alleged to be caused or
incurred in whole or in part as a result of the negligence or other actionable fault of the
Contractors, or their employees, agents, Subcontractors, and Suppliers.
7.12 Computer Models
GARVER may use or modify GARVER's proprietary computer models in service of CITY OF
FAYETTEVILLE under this Agreement, or GARVER may develop computer models during
GARVER's service to CITY OF FAYETTEVILLE under this Agreement. Such use, modification, or
development by GARVER does not constitute a license to CITY OF FAYETTEVILLE to use or
modify GARVER's computer models. Said proprietary computer models shall remain the sole
property of the GARVER. CITY OF FAYETTEVILLE and GARVER will enter into a separate
license agreement if CITY OF FAYEI IEVILLE wishes to use GARVER's computer models.
7.13 Ownership of Documents
All documents provided by CITY OF FAYETTEVILLE including original drawings, disks of CADD
drawings and cross sections, estimates, specification field notes, and data are and remain the property
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of CITY OF FAYETTEVILLE. GARVER may retain reproduced copies of drawings and copies of
other documents.
Engineering documents, drawings, and specifications prepared by GARVER as part of the Services
shall become the property of CITY OF FAYETTEVILLE when GARVER has been compensated for
all services rendered, provided, however, that GARVER shall have the unrestricted right to their use.
GARVER shall, however, retain its rights in its standard drawings details, specifications, databases,
computer software, and other proprietary property. Rights to intellectual property developed, utilized,
or modified in the performance of the Services shall remain the property of GARVER.
Any files delivered in electronic medium may not work on systems and software different than those
with which they were originally produced. GARVER makes no warranty as to the compatibility of
these files with any other system or software. Because of the potential degradation of electronic
medium over time, in the event of a conflict between the sealed original drawings/hard copies and the
electronic files, the sealed drawings/hard copies will govern.
7.14 Notices
Any Notice required under this Agreement will be in writing, addressed to the appropriate party at the
following addresses:
CITY OF FAYE1 IEVILLE's address:
City of Fayetteville; Attn: Chris Brown, PE
113 West Mountain
Fayetteville, AR 72701
GARVER's address:
Garver Engineers; Attn. Brock Hoskins, PE
1088 East Millsap Road
Fayetteville AR 72703
7.15 Successor and Assigns
CITY OF FAYETTEVILLE and GARVER each binds himself and his successors, executors,
administrators, and assigns to the other party of this Agreement and to the successors, executors,
administrators, and assigns of such other party, in respect to all covenants of this Agreement; except
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as above, neither CITY OF FAYETTEVILLE nor GARVER shall assign, sublet, or transfer his
interest in the Agreement without the written consent of the other.
7.16 Controlling Law
This Agreement shall be subject to, interpreted and enforced according to the laws of the State of
Arkansas without regard to any conflicts of law provisions.
7.17 Entire Agreement
This Agreement represents the entire Agreement between GARVER and CITY OF FAYEI I'EVILLE
relative to the Scope of Services herein. Since terms contained in purchase orders do not generally
apply to professional services, in the event CITY OF FAYETTEVILLE issues to GARVER a
purchase order no preprinted terms thereon shall become a part of this Agreement. Said purchase
order document, whether or not signed by GARVER, shall be considered as a document for CITY OF
FAYETTEVILLE's intemal management of its operations.
SECTION 8 - SPECIAL CONDITIONS
8.1 Additional Responsibilities of GARVER:
8.1.1 CITY OF FAYETTEVILLE's review, approval, or acceptance of design drawings,
specifications, reports and other services furnished hereunder shall not in any way
relieve GARVER of responsibility for the technical adequacy of the work. Neither
CITY OF FAYETTEVILLE's review, approval or acceptance of, nor payment for any
of the services shall be construed as a waiver of any rights under this Agreement or of
any cause of action arising out of the performance of this Agreement.
8.1.2 GARVER shall be and shall remain liable, in accordance with applicable law, for all
damages to CITY OF FAYETTEVILLE caused by GARVER's negligent performance
of any of the services furnished under this Agreement except for errors, omissions or
other deficiencies to the extent attributable to CITY OF FAYETTEVILLE or CITY OF
FAYETTEVILLE-furnished data.
8.1.3 GARVER's obligations under this clause are in addition to GARVER's other express
or implied assurances under this Agreement or State law and in no way diminish any
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other rights that CITY OF FAYETTEVILLE may have against GARVER for faulty
materials, equipment, or work.
8.2 Remedies
Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes and
other matters in question between CITY OF FAYE1 1EVILLE and GARVER 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 GARVER shall maintain books, records, documents and other evidence directly
pertinent to performance on work under this Agreement in accordance with generally
accepted accounting principles and practices consistently applied in effect on the date
of execution of this Agreement. GARVER shall also maintain the financial
information and data used by GARVER in the preparation of support of the cost
submission required for any negotiated agreement or change order and send to CITY
OF FAYETTEVILLE a copy of the cost summary submitted. The United States
Environmental Protection Agency, the Comptroller General of the United States, the
United States Department of Labor, CITY OF 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. GARVER 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:
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8.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting
the price of any formally advertised, competitively awarded, fixed price agreement:
8.3.3.3 Agreements or purchase orders under any agreement other than a formally
advertised, competitively awarded, fixed price agreement. However, this right of
access does not apply to a prime agreement, lower tier subagreement or purchase
order awarded after effective price competition, except:
8.3.3.3.1 With respect to record pertaining directly to subagreement performance,
excluding any financial records of GARVER;
8.3.3.3.2 If there is any indication that fraud, gross abuse or corrupt practices may be
involved;
8.3.3.3.3 If the subagreement is terminated for default or for convenience.
8.4 Covenant Against Contingent Fees
GARVER warrants that no person or selling agency has been employed or retained to solicit or secure
this Agreement upon an agreement of understanding for a commission, percentage, brokerage or
continent fee, excepting bona fide employees or bona fide established commercial or selling agencies
maintained by GARVER for the purpose of securing business. For breach or violation of this
warranty, CITY OF FAYETTEVILLE shall have the right to annul this Agreement without liability
or at its discretion, to deduct from the contract price or consideration, or otherwise recover, the full
amount of such commission, percentage, brokerage, or contingent fee.
8.5 Gratuities
8.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that GARVER or any
of GARVER's agents or representatives, offered or gave gratuities (in the form of
entertainment, gifts or otherwise) to any official, employee or agent of CITY OF
FAYETTEVILLE in an attempt to secure an agreement or favorable treatment in
awarding, amending or making any determinations related to the performance of this
Agreement, CITY OF FAYEI I ItVILLE may, by written notice to GARVER
terminate this Agreement. CITY OF FAYETTEVILLE may also pursue other rights
and remedies that the law or this Agreement provides. However, the existence of the
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