HomeMy WebLinkAbout28-12 RESOLUTIONRESOLUTION NO. 28-12
A RESOLUTION APPROVING AN AGREEMENT FOR PROFESSIONAL
ENGINEERING SERVICES WITH GARVER, LLC IN AN AMOUNT NOT TO
EXCEED $94,200.00 FOR ENGINEERING DESIGN RELATED TO TOWN
BRANCH TRAIL
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 for professional engineering services with Garver, LLC in an amount not to exceed
$94,200.00 for engineering design related to Town Branch Trail.
PASSED and APPROVED this 7th day of February, 2012.
APPROVED: ATTEST:
Bv:
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, Mayor
Y: VrIL11(v..1Lii0,N,_.-
LISA BRANSON, Deputy City Clerk
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Matt Mihalevich
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
2/7/2012
City Council Meeting Date
Agenda Items Only
Engineering
Division
Action Required:
Development Services
Department
Staff recommends a resolution approving the agreement for professional engineering services between the City of
Fayetteville and Garver, LLC. in an amount not to exceed $94,200.00 for engineering design associated with two
trail bridges and trail design under the South School (71 B) Bridge for the Town Branch Trail.
$
94,200.00
Cost of this request
1,361,000.00
4470.9470.5814.05 $
Account Number
02016.1102
Project Number
Budgeted Item
X
Category / Project Budget
Trail Development
Program Category / Project Name
55,060.30 Trail Improvements
Funds Used to Date Program / Project Category Name
1,305,939.70 Sales Tax Capital
Remaining Balance Fund Name
Budget Adjustment Attached
Department D
y Attorney
-43
Finance and Internal Services Director
Date
Date
^1.0 ?nr�
Date
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
Res 131-11
RFQ 11-01
Received in City u 1-1q- 12 Pb4: 15 RCVD
Clerk's Office /3
Received in
Mayor's Office
Comments:
Revised January 15, 2009
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THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
ARKANSAS
www.accessfayetteville.org
CITY COUNCIL AGENDA MEMO
To: Mayor and City Council
Thru: Don Marr, Chief of Staff
Jeremy Pate, Development Services Director 3
Chris Brown, City Engineer CR
From: Matt Mihalevich, Trails Coordinator'
Date: January 19, 2012
Subject: Resolution to approve a contract for engineering services with Garver, LLC.
RECOMMENDATION
Staff recommends a resolution approving the agreement for professional engineering services between the City
of Fayetteville and Garver, LLC. in an amount not to exceed $94,200.00 for engineering design associated with
two trail bridges and trail design under the South School (71B) Bridge for the Town Branch Trail.
PROPOSAL:
Town Branch Trail is shown on the Fayetteville Alternative Transportation and Trails Master plan as the
primary east -west trail for the southern parts of Fayetteville. The overall trail will be 2.8 miles and connect to
existing trail at Razorback Road and extend east through Greathouse Park and the University of Arkansas
Research and Technology Park with a connection to Walker Park and St. Paul Trail at City Lake Road. The
section of the Town Branch Trail for this contract is 0.5 miles long and will connect South School (71B) to
Greathouse Park and includes a trail underpass at the existing South School bridge, one new bridge over Cato
Springs Branch and rehabilitation of an existing bridge over Town Branch (See attached map).
In August of 2011, resolution number 131-11 authorized acceptance of a Federal—Aid Transportation
Enhancement Program Grant through the Arkansas State Highway and Transportation Department funds in the
amount of $270,000. The grant requires competitive bidding for the trail construction, therefore the City's in-
house trail construction crew cannot be utilized for the construction, and detailed design plans will be necessary
for bidding the project to private contractors. City staff will provide the majority of the trail design plans,
however additional assistance is necessary for the structural design and flood studies for the bridges and South
School underpass. Garver LLC, was selected through RFQ 11-01 and has provided the attached scope of
services (Appendix A) and contract price for the requested professional engineering services.
BUDGET IMPACT:
The engineering contract of $94,200 in not reimbursable by the Transportation Enhancement Grant, however
funds have been budgeted for the project through the Trail Development Capital Improvement Program.
Future Trail Extension
To Walker Park
Upgrade Existing Bridge
Trail crosses under
Existing Bridge at
South School Ave.
Install New Bridge
Greathouse
Park
Future Trail Extension
To Razorback Rd.
egend
Future Trail Extension - 0.54 Mile
Proposed Town Branch Trail
TOWN BRANCH TRAIL
Greathouse Park to S. School Ave.
0.54 Miles
t' C
0.02 0.04
0.08
0.12
0.16
0.2
Mile
RESOLUTION NO.
A RESOLUTION APPROVING AN AGREEMENT FOR PROFESSIONAL
ENGINEERING SERVICES WITH GARVER, LLC IN AN AMOUNT NOT TO
EXCEED $94,200.00 FOR ENGINEERING DESIGN RELATED TO TOWN
BRANCH TRAIL
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 for professional engineering services with Garver, LLC in an amount not to exceed
$94,200.00 for engineering design related to Town Branch Trail.
PASSED and APPROVED this 7th day of February, 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
GARVER, LLC.
THIS AGREEMENT is made as of y 'P YU.M1 7 , 2012, by and between City of Fayetteville,
Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYE 1"1EVILLE) and
GARVER, LLC (hereinafter called GARVER).
CITY OF FAYETTEVILLE requires professional engineering services in connection with the design of
pedestrian bridges and a School Avenue underpass associated with the Town Branch Trail. 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 and architectural
consultant in those assignments to which this Agreement applies, and shall give consultation and advice
to CITY OF FAYETTEVILLE 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.
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.
1.2 Assignments may include services described hereafter as Basic Services or as Additional
Services of GARVER.
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.
SECTION 2 - BASIC SERVICES OF GARVER
2.1 General
2.1.1 Perform professional services in connection with the Project as hereinafter stated.
Town Branch Trail Engineering Contract Garver.doc 1 1/16/2012
2.1.1.1 The Scope of Services to be furnished by GARVER during the design is included in
Section 2.2 hereafter and in Appendix A attached hereto and made part of this
Agreement.
2.1.2 GARVER shall coordinate their activities and services with the CITY OF FAYETTEVILLE.
GARVER and CITY OF FAYETTEVILLE agree that GARVER has full responsibility for
the engineering services.
2.2 Engineering Services — Town Branch Trail Pedestrian Bridges & School Avenue Underpass.
2.2.1 Perform engineering services for the design as described in the Scope of Services in
Appendix A.
SECTION 3 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of GARVER
3.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
3.2 Assist GARVER by placing at GARVER's disposal all available information pertinent to the
assignment including previous reports and any other data relative thereto.
3.3 Assist GARVER in obtaining access to property reasonably necessary for GARVER to
perform its services under this Agreement.
3.4 Examine all studies, reports, sketches, cost opinions, proposals, and other documents
presented by GARVER and render in writing decisions pertaining thereto.
3.5 The Trails Coordinator is the CITY OF FAYETTEVILLE' s project representative with
respect to the services to be performed under this Agreement. The Trails Coordinator 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.
Town Branch Trail Engineering Contract Garver.doc 2 1/16/2012
3.6 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
written comments to GARVER in a timely manner.
SECTION 4 - PERIOD OF SERVICE
4.1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
4.2 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 of written
authorization from CITY OF FAYETTEVILLE Said authorization shall include the scope of
the services authorized and the time in which the services are to be completed. The
anticipated schedule for this project is included as Appendix A.
SECTION 5 - PAYMENTS TO GARVER
5.1 Compensation
5.1.1 Town Branch Trail
The maximum not -to -exceed amount authorized for this Agreement is $94,200. The CITY OF
FAYETTEVILLE shall compensate GARVER for time spent on the project at the rates described in
Appendix B for each classification of GARVER's personnel. In addition, reimbursable expenses,
including but not limited to printing, courier service, reproduction, travel, and subconsultants shall be
paid to GARVER. For informational purposes, a breakdown of GARVER' s estimated costs is included
in Appendix B. The rates shown will be increased annually with the first increase effective on or about
June 1, 2012.
5.1.1.1 Subject to the City Council approval, adjustment of the not -to -exceed amount 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, character, or schedule 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.
Town Branch Trail Engineering Contract Garver.doc 3 1/16/2012
5.1.1.2 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for
professional services 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. Applications for
payment shall be accompanied each month by the updated project schedule as the basis
for determining the value earned as the work is accomplished. Final payment for
professional services shall be made upon CITY OF FAYETTEVILLE's approval and
acceptance with the satisfactory completion of the study and report for the Project.
5.2 Statements
Statements and progress report for each calendar month will be submitted to CITY OF FAYETTEVILLE.
Statements will be based on GARVER's actual time and reimbursable expenses accrued to the project.
5.3 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.
5.4 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
FAYETTEVILLE 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.
Town Branch Trail Engineering Contract Garver.doc 4 1/16/2012
SECTION 6 - GENERAL CONSIDERATIONS
6.1
Insurance
6.1.1 During the course of performance of these services, GARVER 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
GARVER 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.
6.1.2 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.
6.2 Professional Responsibility
6.2.1 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 FAYETIEVILLE retains all remedies to recover
for its damages caused by any negligence of GARVER
Town Branch Trail Engineering Contract Garver.doc 5 1/16/2012
6.3 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.
6.4 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 acceptable amendment or change
order signed by the Mayor of the CITY OF FAYETTEVILLE and the duly authorized officer of
GARVER.
6.5 Termination
6.5.1 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:
6.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
6.5.1.2 An opportunity for consultation with the terminating party prior to termination.
6.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYE ITEVILLE for its convenience, provided that GARVER is given:
6.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
Town Branch Trail Engineering Contract Garver.doc 6 1/16/2012
6.5.2.2 An opportunity for consultation with the terminating party prior to termination.
6.5.3 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
6.5.3.1 No amount shall be allowed for anticipated profit on unperformed services or other work,
6.5.3.2 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.
6.5.4 If termination for default is effected by GARVER, 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 GARVER for services rendered and expenses incurred prior to
the termination, in addition to termination settlement costs reasonably incurred by GARVER
relating to commitments which had become firm prior to the termination.
6.5.5 Upon receipt of a termination action under Paragraphs 6.5.1 or 6.5.2 above, GARVER shall:
6.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
6.5.5.2 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.
6.5.6 Upon termination under Paragraphs 6.5.1 or 6.5.2 above CITY OF FAYETTEVILLE may
take over the work and may award another party an agreement to complete the work under
this Agreement.
6.5.7 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 6.5.4 of this
clause.
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6.6 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.
6.7 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.
6.8 Dispute Resolution
6.8.1 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 FAYETTEVILLE or
GARVER in the performance of this Agreement, and disputes concerning payment.
6.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 6.8.3, 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 6.8.3 and 6.8.4 have been complied
with.
6.8.3 Notice of Dispute
6.8.3.1 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;
6.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYE IfEVILLE shall give GARVER written Notice at the address listed in
Paragraph 6.14 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
Town Branch Trail Engineering Contract Garver.doc 8 1/16/2012
and amount of relief sought, the reason relief should be granted, and the appropriate
portions of this Agreement that authorize the relief requested.
6.8.4 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 or Chief Engineer 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.
6.9 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.
6.10 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
FAYE'F1'bVILLE'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.
6.11 Indemnification
6.11.1 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.
6.12 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 OFAYETTEVILLE under this
agreement. Such use, modification, or development by GARVER does not constitute a
Town Branch Trail Engineering Contract Garver.doc 9 1/16/2012
license to CITY OF FAYETTEVILLE to use or modify GARVER's computer models. Said
proprietary computer models shall remain the sole property of GARVER. CITY OF
FAYETTEVILLE and GARVER will enter into a separate license agreement if CITY OF
FAYETTEVILLE wishes to use GARVER's computer models.
6.13 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. GARVER may retain reproduced copies of drawings and copies of other
documents.
Engineering documents, drawings, and specifications and other hard copy or electronic media prepared by
GARVER as part of the Services shall become the property of CITY OF FAYE 1"1'EVILLE 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.
6.14 Notices
Any Notice required under this Agreement will be in writing, addressed to the appropriate party at the
following addresses:
CITY OF FAYETTEVILLE's address:
113 West Mountain Street
Fayetteville, Arkansas 72701
Town Branch Trail Engineering Contract Garver.doc 10 1/16/2012
GARVER, LLC's address:
2049 E. Joyce Blvd, Suite 400
Fayetteville, Arkansas 72703
6.15 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 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.
6.16 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.
6.17 Entire Agreement
This Agreement represents the entire Agreement between GARVER 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 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
internal management of its operations.
SECTION 7 - SPECIAL CONDITIONS
7.1 Additional Responsibilities of GARVER
7.1.1 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.
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7.1.2 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.
7.1.3 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 other
rights that CITY OF FAYETTEVILLE may have against GARVER for faulty materials,
equipment, or work.
7.2 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 GARVER arising out of or relating to this
Agreement or the breach thereof will be decided in a court of competent jurisdiction within Arkansas.
7.3 Audit: Access to Records
7.3.1 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. 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.
7.3.2 Records under Paragraph 7.3.1 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.
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7.3.3 This right of access clause (with respect to financial records) applies to:
7.3.3.1 Negotiated prime agreements:
7.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting the
price of any formally advertised, competitively awarded, fixed price agreement.
7.3.3.3 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:
7.3.3.3.1 With respect to record pertaining directly to subagreement performance, excluding
any financial records of GARVER;
7.3.3.3.2 If there is any indication that fraud, gross abuse or corrupt practices may be involved;
7.3.3.3.3 If the subagreement is terminated for default or for convenience.
7.4 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.
7.5 Gratuities
7.5.1 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 FAYETTEVILLE may, by written notice to GARVER terminate this Agreement. CITY
OF FAYETTEVILLE may also pursue other rights and remedies that the law or this
Town Branch Trail Engineering Contract Garver.doc 13 1/16/2012
Agreement provides. However, the existence of the facts on which CITY OF
FAYETTEVILLE bases such finding shall be in issue and may be reviewed in proceedings
under the Remedies clause of this Agreement.
7.5.2 In the event this Agreement is terminated as provided in Paragraph 7.5.1, CITY OF
FAYETTEVILLE may pursue the same remedies against GARVER as it could pursue in the
event of a breach of the Agreement by GARVER. As a penalty, in addition to any other
damages to which it may be entitled by law, CITY OF FAYETTEVILLE may pursue
exemplary damages in an amount (as determined by CITY OF FAYETTEVILLE) which
shall be not less than three nor more than ten times the costs GARVER incurs in providing
any such gratuities to any such officer or employee.
7.6 Arkansas Freedom of Information Act
City contracts and documents, including internal documents and documents of subcontractors and sub -
consultants, prepared while performing City contractual work are subject to the Arkansas Freedom of
Information Act (FOIA). If a Freedom of Information Act request is presented to the CITY OF
FAYETTEVILLE, GARVER will do everything possible to provide the documents in a prompt and
timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25-19-101 et seq.).
Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance.
IN WITNESS WHEREOF, CITY OF FAYETTEVILLE, ARKANSAS by and through its Mayor, and
GARVER, by its authorized officer have made and executed this Agreement as of the day and year first
above written.
CITY OF FAYETTEVILLE, ARKANSAS
or, . ioneld
ATTEST:
By: �. o
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GARVER
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Title: Sr. Vice President/Chief Engineer
Town Branch Trail Engineering Contract Garver.doc 14 1/16/2012
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.
END OF AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES
Town Branch Trail Engineering Contract Garver.doc 15
1/16/2012