HomeMy WebLinkAbout160-12 RESOLUTIONRESOLUTION NO. 160-12
A RESOLUTION APPROVING AN ENGINEERING CONTRACT WITH
MCCLELLAND CONSULTING ENGINEERS IN THE AMOUNT OF
$131,328.00, PLUS A $20,000.00 PROJECT CONTINGENCY, FOR DESIGN
SERVICES FOR THE STATE HIGHWAY 16 WATER AND SEWER
RELOCATION PROJECT AT THE WEST FORK OF THE WHITE RIVER
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 contract with McClelland Consulting Engineers in the amount of $131,328.00, a
copy of which is attached as Exhibit "A", plus a $20,000.00 project contingency, for design
services for the State Highway 16 Water and Sewer Relocation Project at the West Fork of the
White River.
PASSED and APPROVED this 7th day of August, 2012.
APPROVED: ATTEST:
_ By:
L I NELD J G' l e , Mayor
e.
SONDRA E. SMITH, City Clerk/Treasurer
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Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
7 -Aug -12
City Council Meeting Date
Agenda Items Only
Utilities Capital Projects
Division
Action Required:
Utilities
Department
Approval of Engineering contract with McClelland Consulting Engineers in the amount of $131,328 plus a $20,000
contingency, for design services for the Hwy. 16 Water and Sewer Relocation project at the West Fork of the White
River.
151,328
Cost of this request
5400.5600.5314.00
Account Number
11012.1201
Project Number
Budgeted Item
XX
956,636
Category / Project Budget
Waterline - Huntsville (265 - Van Hoose)
Program Category / Project Name
Water & Wastewater
Funds Used to Date Program / Project Category Name
956,636 Water & Sewer
Remaining Balance Fund Name
Budget Adjustment Attached
Finance and Internal Services Director
Zv Stt� ) Z Previous Ordinance or Resolution #
Date
i -23-I2 _
Date
7'23-z1(t
Date
'23
Date
?7'0
Date
Chief of
ayor
Original Contract Date:
Original Contract Number:
Comments:
Revised January 15, 2009
CITY COUNCIL AGENDA MEMO
MEETING DATE OF AUGUST 7, 2012
THE CITY OF FAYETTEVILLE, ARKANSAS
ARKANSAS
www.accessfayetteville.org
To: Fayetteville City Council
Thru: David Jurgens, Utilities Director
Mayor Lioneld Jordan
Don Marr, Chief of Staff
From: Shannon Jones, Utilities Enginee
Fayetteville Water and Sewer Comrrfittee
Date: July 20, 2012
Subject: Engineering contract with McClelland Consulting Engineers in the amount of $131,328 plus a $20,000
contingency, for design services for the Hwy. 16 Water and Sewer Relocation project.
RECOMMENDATION
Staff recommends approval of an engineering contract with McClelland Consulting Engineers in the amount of
$131,328 plus a $20,000 contingency, for design services for the Hwy. 16 Water and Sewer Relocation project
at the West Fork of the White River.
BACKGROUND
The project consists of relocating water and sewer lines as a result of the Arkansas State Highway and
Transportation Department (AHTD) replacement and widening of the bridge across the West Fork of the White
River along Highway 16. Existing utilities located within the planned new AHTD right-of-way must be
relocated outside of the new right-of-way in accordance with the AHTD's utility accommodation policy. The
12 -inch water line that serves portions of eastern Fayetteville and the City of Elkins is currently attached to the
existing bridge. The proposed design will relocate the 12 -inch water line to the north to allow for construction
of the new bridge.
DISCUSSION
A selection committee met on June 26, 2012 to select an engineer for the project. Alderman Ferrell was
present. The committee selected McClelland Consulting Engineers, Inc. City staff subsequently negotiated a
contract with McClelland Consulting Engineers, Inc. The scope of work for this project consists primarily of:
- Field surveys to confirm rights -of -ways and utility locations
- Project cost estimating
- Right-of-way requirement identification and easement document development
- Final engineering design
- Stormwater pollution prevention plan
- Construction stakeout
This contract does not include construction phase services. We plan on using in-house staff for construction
management and observation.
BUDGET IMPACT
Funds are available in the project budget.
Telecommunications Device for the Deaf TDD (479) 521-1316 113 West Mountain - Fayetteville, AR 72701
McClelland Contract CCMemo 07-20-2012
RESOLUTION NO.
A RESOLUTION APPROVING AN ENGINEERING CONTRACT WITH
MCCLELLAND CONSULTING ENGINEERS IN THE AMOUNT OF
$131,328.00, PLUS A $20,000.00 PROJECT CONTINGENCY, FOR DESIGN
SERVICES FOR THE STATE HIGHWAY 16 WATER AND SEWER
RELOCATION PROJECT AT THE WEST FORK OF THE WHITE RIVER
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 contract with McClelland Consulting Engineers in the amount of $131,328.00, a
copy of which is attached as Exhibit "A", plus a $20,000.00 project contingency, for design
services for the State Highway 16 Water and Sewer Relocation Project at the West Fork of the
White River.
PASSED and APPROVED this 7t" day of August, 2012.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
MCCLELLAND CONSULTING ENGINEERS, INC.
THIS AGREEMENT is made as of
, 2012, by and between City of Fayetteville, Arkansas,
acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and McClelland
Consulting Engineers, Inc. with offices located in Fayetteville, AR (hereinafter called MCE).
CITY OF FAYETTEVILLE requires professional engineering services in connection with the field
surveys, design and easement preparation services for water and sewer system improvements along
Arkansas Highway 16 in the vicinity of the West Fork River Bridge , as further defined by AHTD Job
040569, in order to facilitate the widening of said Highway 16 bridge by the Arkansas Highway and
Transportation Department, and as further described in Appendix A. Therefore, CITY OF
FAYETTEVILLE and MCE in consideration of their mutual covenants agree as follows:
MCE shall serve as CITY OF FAYETTEVILLE's professional engineering consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYETTEVILLE during the performance of MCE's services. All services shall be performed under the
direction of a professional engineer registered in the State of Arkansas and qualified in the particular
field. If Construction Phase Services are to be provided by MCE under this Agreement, the construction
shall be executed under the observation of a professional engineer registered in the State of Arkansas in
accordance with Arkansas Code Amended §22-9-101.
SECTION 1- AUTHORIZATION OF SERVICES
1.1
Services on any assignment shall be undertaken only upon written
Authorization of CITY OF FAYETTEVILLE and agreement of MCE.
Assignments may include services described hereafter as Basic Services or as
Additional Services of MCE.
FY122124 Hwy. 16 Water & Sewer Improvements 1 Contract — Prime Agreement
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.
SECTION 2 - BASIC SERVICES OF MCE
2.1.1 Perform professional design services in connection with the Project as
hereinafter stated, which shall include normal civil, structural, and surveying
services.
2.1.1.1 The Scope of Services to be furnished by MCE during the Preliminary
and Final Design Phase is included in Section 2.2 hereafter and in
Appendix A attached hereto and made part of this Agreement.
Preliminary and Final Design Phase Services shall include Design
Surveys and Bidding Phase Services.
2.1.1.2 The Scope of Services to be furnished by MCE for property mapping,
easement mapping and easement preparation is included in Section 2.3
hereafter and in Appendix A attached hereto and made a part of this
Agreeement.
2.1.1.3 The Scope of Services to be furnished by MCE for Storm Water
Pollution Prevention Plan Services is included in Section 2.4 hereafter
and in Appendix A attached hereto and made a part of this Agreeement.
2.1.1.4 The Scope of Services to be furnished by MCE for Construction Staking
is included in Section 2.5 hereafter and in Appendix A attached hereto
and made a part of this Agreement.
2.1.1.5 The Scope of Services to be furnished by MCE during other aspects of
the Construction Phase, if desired by the CITY OF FAYETTEVILLE,
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.
FY122124 Hwy. 16 Water & Sewer Improvements 2 Contract — Prime Agreement
2.2 Design Services
2.2.1 MCE will perform engineering and related services in order to prepare
Preliminary Drawings, and Final Drawings, and to assist the CITY OF
FAYETTEVILLE with Project Specifications, Bidding assistance,
AHTD Coordination, 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 standard borders, sheet sizes, title blocks and CADD
standards provided by CITY OF FAYETTEVILLE. MCE may use its
normal software for the preparation of drawings but the final product
shall be provided to CITY OF FAYETTEVILLE in Autodesk AutoCAD
version 2012 or later.
2.2.1.2. Develop and include in Appendix A of this Agreement for approval by
CITY OF FAYETTEVILLE, a project design schedule in which MCE
shall include, in an acceptable level of detail, the steps and milestone
dates to be undertaken by MCE in the completion of this design. This
Schedule shall include reasonable allowances for review and approval
times required by CITY OF FAYETTEVILLE, performance of services
by CITY OF FAYETTEVILLE's consultants, and review and approval
times required by public authorities having jurisdiction over the Project.
This Schedule shall be equitably adjusted as the Project progresses,
allowing for changes in scope, character or size of the Project requested
by CITY OF FAYETTEVILLE, or for delays or other causes beyond
MCE's reasonable control. The progress design schedule shall consist of
a tabular list of milestones for each phase of services.
2.2.1.3. When requested by the CITY OF FAYETTEVILLE's Utility Engineer,
prepare for and attend Water and Sewer Committee meetings and a City
Council meeting to provide support for the project.
FY 122124 Hwy. 16 Water & Sewer Improvements 3 Contract — Prime Agreement
2.2.2. Provide through contract amendments services or data such as geotechnical
investigations, core borings, probings and subsurface explorations,
hydrographic surveys, laboratory tests, and inspections of samples, materials,
and equipment as necessary for authorized Project services including
appropriate professional interpretations of all the foregoing; property,
boundary, easement, right-of-way, topographic, and utility surveys; noting
zoning and deed restrictions.
2.2.2.1. Fully disclose all subcontract agreements including the name and address
of the subconsultant, the scope of services to be provided and the value
of the subcontract agreement.
2.2.2.2. Incorporate into all subcontract agreements for planning and design
engineering services the applicable milestone dates from the Submittal
Schedule and the CITY OF FAYETTEVILLE and require all MCE
subconsultants to be bound by the Submittal Schedule.
2.2.3. Design shall be reviewed by CITY OF FAYETTEVILLE, or such parties as
CITY OF FAYETTEVILLE shall designate, at completion of preliminary
(30% complete) and final (90% complete) plans. Interim reviews may be
performed at the request of MCE or the CITY OF FAYETTEVILLE in order
to facilitate completion of the project.
2.2.3.1. Final Design shall be reviewed by the CITY OF FAYTTEVILLE, the
Arkansas Highway and Transportation Department and the Arkansas
Department of Health. Design documents shall be modified/updated by
MCE as necessary for approval by all parties. River crossing plans shall
be submitted to the Corps of Engineers for their approval.
2.2.3.2. MCE shall assist the CITY OF FAYETTEVILLE in the process of
advertising the project for bids, receiving bids, and preparing a Bid
Tabulation.
FY122124 Hwy. 16 Water & Sewer Improvements 4 Contract — Prime Agreement
2.2.3.3. MCE shall assist the CITY OF FAYETTEVILLE concerning
coordination with the Arkansas Highway and Transportation
Department, attendance of AHTD coordination meetings and preparation
of draft documents required by AHTD related to the project design.
AHTD reimbursement is not anticipated and documentation of facilities
to justify reimbursement percentage calculations is not included.
2.3 Property Mapping and Easement Services
2.3.1. MCE will perform property mapping, easement mapping and easement
preparation services as described in Appendix A.
2.3.1.1. MCE shall rely on AHTD property maps and right-of-way maps
concerning AHTD's right-of-way acquisition. MCE shall rely on CITY
OF FAYETTEVILLE atlas maps and easement acquisition personnel for
information on existing easements. Based on these data MCE shall
prepare property maps and easement maps, determine the extent of
required new easements, verify the current ownership of property where
new easement are required, and prepare required easement documents in
accordance with CITY OF FAYETTEVILLE easement criteria. MCE
shall revise easements where AHTD right-of-way limits change or where
the requirements by the CITY OF FAYETTEVILLE are revised, at the
expense of the CITY OF FAYETTEVILLE. Any errors detected in
easement documents prepared by MCE shall be revised by MCE at
MCE's expense.
2.4 Storm Water Pollution Prevention Plan Phase
2.4.1 MCE shall complete a Storm Water Pollution Prevention Plan based on the
final system design and in accordance with applicable ADEQ criteria for
approval by the CITY OF FAYETTEVILLE and implementation by the
construction contractor.
FY122124 Hwy. 16 Water & Sewer Improvements 5 Contract — Prime Agreement
2.5 Construction Phase
2.5.1. MCE will perform Construction Staking during the Construction Phase.
Construction Staking shall be completed under the direct supervision of a
Registered Land Surveyor, and shall establish the pipeline alignment and
grade as required by the Final Drawings, and as further described in
Appendix A.
2.5.2. The scope of other Construction Phase Services will be described in detail in
a future amendment to this Agreement, if the CITY OF FAYETTEVILLE
chooses to have MCE provide other Construction Phase Services.
SECTION 3 - ADDITIONAL SERVICES OF MCE
3.1 General
If authorized in writing by the CITY OF FAYETTEVILLE Mayor and the City Council and agreed to in
writing by MCE, MCE shall furnish or obtain from others Additional Services of the following types that
are not considered normal or customary Basic Services. The scope of Additional Services may include:
3.1.1 Financial Consultation
Consult with CITY OF FAYETTEVILLE's fiscal agents and bond attorneys
and provide such engineering data as required for any bond prospectus or
other financing requirements.
3.1.2 Administrative Assistance
Provide Contract and Project administration to the degree authorized by
CITY OF FAYETTEVILLE.
3.1.3 Furnishing renderings or models of the Project for CITY OF
FAYETTEVILLE's use.
FY122124 Hwy. 16 Water & Sewer Improvements 6 Contract — Prime Agreement
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
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 MCE's control, MCE 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 MCE. If CITY OF FAYETTEVILLE indicates in writing
that all or parts of such Contingent Additional Services are not required,
MCE shall have no obligation to provide those services.
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.
FY122124 Hwy. 16 Water & Sewer Improvements 7 Contract — Prime Agreement
3.2.2.2 Required by the enactment or revision of codes, laws, or regulations
subsequent to the preparation of such documents.
SECTION 4 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of MCE:
4.1 Provide AHTD's plans for MCE's use.
4.2 Provide full information as to CITY OF FAYETTEVILLE's requirements
for the Project.
4.3 Assist MCE by placing at MCE's disposal all available information pertinent
to the assignment including previous reports and any other data relative
thereto.
4.4 Guarantee access to and make all provisions for MCE to enter upon public
and private property as required for MCE to perform its services under this
Agreement.
4.5 Examine all studies, reports, sketches, cost opinions, Bid Documents,
Drawings, proposals, and other documents presented by MCE and render in
writing decisions pertaining thereto.
4.6 Provide such professional legal, accounting, financial, and insurance
counseling services as may be required for the Project.
4.7 Designate in writing a person to act as CITY OF FAYETTEVILLE's
representative with respect to the services to be performed under this
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 MCE whenever CITY OF FAYETTEVILLE
observes or otherwise becomes aware of any defect in the Project.
FY 122124 Hwy. 16 Water & Sewer Improvements 8 Contract — Prime Agreement
4.9 Furnish approvals and permits from all governmental authorities having
jurisdiction over the Project and such approvals and consents from others as
may be necessary for completion of the Project. Pay directly to the
governmental authorities the actual filing and permit fees.
4.10 Pay for placement of legal notices and advertisements in newspapers or other
publications required by program requirements.
4.11 Furnish, or direct MCE to provide, necessary Additional Services as
stipulated in Section 3 of this Agreement or other services as required.
4.12 If CITY OF FAYETTEVILLE's standard bidding requirements, Agreement
forms and General Conditions are to be used, CITY OF FAYETTEVILLE
shall provide copies of such documents for MCE's use in coordinating the
Contract Drawings and Specifications.
4.13 CITY OF FAYETTEVILLE and/or its representative will review all
documents and provide written comments to MCE in a timely manner.
SECTION 5 - PERIOD OF SERVICE
5.1 This Agreement will become effective upon the first written notice by CITY
OF FAYETTEVILLE authorizing services hereunder.
5.2 The provisions of this Agreement have been agreed to in anticipation of the
orderly progress of the Project through completion of the services stated in
the Agreement. MCE will proceed with providing the authorized services
immediately upon receipt of written authorization from CITY OF
FAYETTEVILLE. Said authorization shall include the scope of the services
authorized and the time in which the services are to be completed.
FY 122124 Hwy. 16 Water & Sewer Improvements 9 Contract — Prime Agreement
SECTION 6 - PAYMENTS TO MCE
6.1 Compensation
For the Scope of Services described herein, CITY OF FAYETTEVILLE shall pay MCE an amount Not to
Exceed the sum amount of $131,328 United States Dollars (US $131,328 ) in accordance with the
provisions described in the following paragraphs. The profit included in this Not to Exceed amount shall
be $14,070.00.
6.1.1 Design Surveys, Preliminary and Final Design and Bidding Services
For design surveys, preliminary design, final design and bidding services to be performed by MCE, CITY
OF FAYETTEVILLE shall pay MCE for time spent on the project at the rates shown in attached
Appendix B-1 for each classification of MCE personnel, and for reimbursable expenses. The rates shown
in Appendix B-1 will be increased annually with the first increase effective on or about October 1, 2012.
6.1.2 Property Surveys and Property Acquisition Documents
For Property Surveys, Property and Easement Mapping, and Property Acquisition Documents, CITY OF
FAYETTEVILLE shall pay MCE for time spent on the project at the rates shown in attached Appendix
B-2 for each classification of MCE personnel, and for reimbursable expenses. The rates shown in
Appendix B-2 will be increased annually with the first increase effective on or about October 1, 2012.
6.1.3 Storm Water Pollution Prevention Plan
For Storm Water Pollution Prevention Plan services, CITY OF FAYETTEVILLE shall pay MCE for time
spent on the project at the rates shown in attached Appendix B-3 for each classification of MCE
personnel, and for reimbursable expenses. The rates shown in Appendix B-3 will be increased annually
with the first increase effective on or about October 1, 2012.
6.1.4 Construction Phase Services
For Construction Staking Services, CITY OF FAYTTEVILLE shall pay MCE for the time spent on the
project at the rates shown in attached Appendix B-4 for each classification of MCE personnel, and for
reimbursable expenses. The rates shown in Appendix B-4 will be increased annually with the first
increase effective on or about October 1, 2012. If other Construction Phase Services besides Contraction
Staking are authorized, CITY OF FAYETTEVILLE shall pay MCE an amount to be negotiated at a later
date.
FY122124 Hwy. 16 Water & Sewer Improvements 10 Contract — Prime Agreement
6.1.5 Additional Services
For authorized Additional engineering services under Section 3, "Additional Services", compensation to
MCE shall be negotiated at the time Additional Services are authorized.
6.2 Statements
Monthly statements for each calendar month shall be submitted to CITY OF FAYETTEVILLE or such
parties as CITY OF FAYETTEVILLE may designate consistent with MCE's normal billing schedule.
Once established, the billing schedule shall be maintained throughout the duration of the Project.
Applications for payment shall be made in accordance with a format to be developed by MCE and
approved by CITY OF FAYETTEVILLE.
6.3 Payments
All statements are payable upon receipt and due within thirty (30) days. If a portion of MCE's statement
is disputed by CITY OF FAYETTEVILLE, the undisputed portion shall be paid by CITY OF
FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE shall advise MCE in writing of the basis
for any disputed portion of any statement. CITY OF FAYETTEVILLE will make reasonable effort to pay
invoices within 30 days of date the invoice is approved, however, payment within 30 days is not
guaranteed.
6.4 Final Payment
Upon satisfactory completion of the work performed under this Agreement, as a condition before final
payment under this Agreement, or as a termination settlement under this Agreement, MCE shall execute
and deliver to CITY OF FAYETTEVILLE a release of all claims against CITY OF FAYETTEVILLE
arising under or by virtue of this Agreement, except claims which are specifically exempted by MCE to
be set forth therein. Unless otherwise provided in this Agreement or by State law or otherwise expressly
agreed to by the parties to this Agreement, final payment under this Agreement or settlement upon
termination of this Agreement shall not constitute a waiver of CITY OF FAYETTEVILLE's claims
against MCE or his sureties under this Agreement or applicable performance and payment bonds, if any.
FY 122124 Hwy. 16 Water & Sewer Improvements
11 Contract — Prime Agreement
6.5 Fee Changes
Subject to the City Council approval, adjustment of the Not to Exceed amount may be made should MCE
establish and CITY OF FAYETTEVILLE agree that there has been or is to be a significant change in
scope, complexity or character of the services to be performed; or if CITY OF FAYETTEVILLE decides
to shorten the duration of work from the time period specified in the Agreement for completion of work
and such modification warrants such adjustment. Changes, modifications or amendments in scope, price
or fees to this Contract shall not be allowed without formal contract amendment approved by the Mayor
and the City Council in advance of the change in scope, cost, fees, or delivery schedule.
SECTION 7 - GENERAL CONSIDERATIONS
7.1 Insurance
7.1.1 During the course of performance of these services, MCE will maintain (in
United States Dollars) the following minimum insurance coverages:
Type of Coverage
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
MCE will provide to CITY OF FAYETTEVILLE certificates as evidence of the specified insurance
within ten days of the date of this Agreement and upon each renewal of coverage.
7.1.2 Construction Contractors shall be required to provide (or CITY OF
FAYETTEVILLE may provide) Owner's Protective Liability Insurance
naming CITY OF FAYETTEVILLE as a Named Insured to endorse CITY
OF FAYETTEVILLE. Construction Contractors shall be required to provide
certificates evidencing such insurance to CITY OF FAYETTEVILLE and
MCE.
FY122124 Hwy. 16 Water & Sewer Improvements 12 Contract — Prime Agreement
7.1.3 CITY OF FAYETTEVILLE and MCE waive all rights against each other
and their officers, directors, agents, or employees for damage covered by
property insurance during and after the completion of MCE's services. A
provision similar to this shall be incorporated into all Construction Contracts
entered into by CITY OF FAYETTEVILLE, and all construction Contractors
shall be required to provide waivers of subrogation in favor of CITY OF
FAYETTEVILLE and MCE for damage or liability covered by any
construction Contractor's policy of insurance.
7.2 Professional Responsibility
7.2.1 MCE will exercise reasonable skill, care, and diligence in the performance of
MCE's services and will carry out its responsibilities in accordance with
customarily accepted professional engineering practices. ,MCE agrees not to
seek or accept any compensation or reimbursements from the City of
Fayetteville for engineering work it performs to correct any errors, omissions
or other deficiencies caused by MCE's failure to meet customarily accepted
professional engineering practices. CITY OF FAYETTEVILLE retains all
other remedies to recover for its damages caused by any negligence of MCE.
7.2.2 In addition MCE will be responsible to CITY OF FAYETTEVILLE for
damages caused by its negligent conduct during its activities at the Project
Site to the extent covered by MCE's Commercial General Liability and
Automobile Liability Insurance policies as specified in Paragraph 7.1.1.
7.3 Cost Opinions and Projections
Cost opinions and projections prepared by MCE relating to construction costs and schedules, operation
and maintenance costs, equipment characteristics and performance, and operating results are based on
MCE's experience, qualifications, and judgment as a design professional. Since MCE has no control over
weather, cost and availability of labor, material and equipment, labor productivity, construction
Contractors' procedures and methods, unavoidable delays, construction Contractors' methods of
determining prices, economic conditions, competitive bidding or market conditions, and other factors
affecting such cost opinions or projections, MCE does not guarantee that actual rates, costs, performance,
schedules, and related items will not vary from cost opinions and projections prepared by MCE.
FY 122124 Hwy. 16 Water & Sewer Improvements 13 Contract — Prime Agreement
7.4 Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of MCE's
services, with an appropriate change in compensation and schedule only after Fayetteville City Council
approval of such proposed changes and, upon execution of a mutually acceptable amendment or change
order signed by the Mayor of the CITY OF FAYETTEVILLE and the President or any Vice President of
MCE.
7.5 Termination
7.5.1 This Agreement may be terminated in whole or in part in writing by either
party in the event of substantial failure by the other party to fulfill its
obligations under this Agreement through no fault of the terminating party,
provided that no termination may be effected unless the other party is given:
7.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified
mail, 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 MCE 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 MCE at the time of termination may be adjusted to
cover any additional costs to CITY OF FAYETTEVILLE because of
MCE's default.
7.5.4 If termination for default is effected by MCE, or if termination for
convenience is effected by CITY OF FAYETTEVILLE, the equitable
adjustment shall include a reasonable profit for services or other work
performed. The equitable adjustment for any termination shall provide for
payment to MCE for services rendered and expenses incurred prior to the
termination, in addition to termination settlement costs reasonably incurred
by MCE relating to commitments which had become firm prior to the
termination.
7.5.5 Upon receipt of a termination action under Paragraphs 7.5.1 or 7.5.2 above,
MCE shall:
7.5.5.1 Promptly discontinue all affected work (unless the notice directs
otherwise),
7.5.5.2 Deliver or otherwise make available to CITY OF FAYETTEVILLE all
data, drawings, specifications, reports, estimates, summaries and such
other information and materials as may have been accumulated by MCE
in performing this Agreement, whether completed or in process.
7.5.6 Upon termination under Paragraphs 7.5.1 or 7.5.2 above CITY OF
FAYETTEVILLE may take over the work and may award another party an
agreement to complete the work under this Agreement.
7.5.7 If, after termination for failure of MCE to fulfill contractual obligations, it is
determined that MCE had not failed to fulfill contractual obligations, the
termination shall be deemed to have been for the convenience of CITY OF
FAYETTEVILLE. In such event, adjustments of the agreement price shall
be made as provided in Paragraph 7.5.4 of this clause.
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7.6 Delays
In the event the services of MCE are suspended or delayed by CITY OF FAYETTEVILLE or by other
events beyond MCE's reasonable control, MCE shall be entitled to additional compensation and time for
reasonable costs incurred by MCE in temporarily closing down or delaying the Project.
7.7 Rights and Benefits
MCE's services will be performed solely for the benefit of CITY OF FAYETTEVILLE and not for the
benefit of any other persons or entities.
7.8 Dispute Resolution
7.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and
all disputes between CITY OF FAYETTEVILLE and MCE which arise
from, or in any way are related to, this Agreement, including, but not limited
to the interpretation of this Agreement, the enforcement of its terms, any acts,
errors, or omissions of CITY OF FAYETTEVILLE or MCE in the
performance of this Agreement, and disputes concerning payment.
7.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties
first negotiate. If timely Notice is given under Paragraph 7.8.3, but an action
is initiated prior to exhaustion of these procedures, such action shall be
stayed, upon application by either party to a court of proper jurisdiction, until
the procedures in Paragraphs 7.8.3 and 7.8.4 have been complied with.
7.8.3 Notice of Dispute
7.8.3.1 For disputes arising prior to the making of final payment promptly after
the occurrence of any incident, action, or failure to act upon which a
claim is based, the party seeking relief shall serve the other party with a
written Notice;
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