HomeMy WebLinkAbout214-19 RESOLUTIONOF FAYETTP
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113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 214-19
File Number: 2019-0532
DEMX ARCHITECTURE:
A RESOLUTION TO APPROVE A PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT
WITH DEMX ARCHITECTURE, PURSUANT TO RFQ #19-01, IN AN AMOUNT NOT TO EXCEED
$52,000.00 FOR DESIGN AND CONSTRUCTION ADMINISTRATION SERVICES ASSOCIATED
WITH THE RENOVATION AND REPLACEMENT OF EXISTING RESTROOMS IN MULTIPLE CITY
PARKS, AND TO APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF $10,000.00
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a professional
architectural services agreement with DEMX Architecture, pursuant to RFQ #19-01, in the amount not to
exceed $52,000.00 for design and construction administration services associated with the renovation
and replacement of existing restrooms in multiple city parks, and further approves a project contingency in
the amount of $10,000.00.
PASSED d APPROVED on 9/17/2019
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Page 1 Printed on 9119119
City of Fayetteville, Arkansas
�r 113 West Mountain Street
Fayetteville, AR 72701
W I (479) 575-8323
/ Text File
File Number: 2019-0532
Agenda Date: 9/17/2019 Version: 1 Status: Passed
In Control: City Council Meeting
Agenda Number: A. 11
DEMX ARCHITECTURE:
File Type: Resolution
A RESOLUTION TO APPROVE A PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT
WITH DEMX ARCHITECTURE, PURSUANT TO RFQ #19-01, IN AN AMOUNT NOT TO EXCEED
$52,000.00 FOR DESIGN AND CONSTRUCTION ADMINISTRATION SERVICES ASSOCIATED
WITH THE RENOVATION AND REPLACEMENT OF EXISTING RESTROOMS IN MULTIPLE
CITY PARKS, AND TO APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF $10,000.00
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a professional
architectural services agreement with DEMX Architecture, pursuant to RFQ #19-01, in the amount not to
exceed $52,000.00 for design and construction administration services associated with the renovation and
replacement of existing restrooms in multiple city parks, and
further approves a project contingency in the amount of $10,000.00.
City of Fayetteville, Arkansas Paye 1 Printed on 9/19/2019
Ted Jack
Submitted By
City of Fayetteville Staff Review Form
2019-0532
Legistar File ID
9/17/2019
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
8/22/2019
Submitted Date
Action Recommendation:
PARKS & RECREATION (520)
Division / Department
Resolution to approve a contract between the City of Fayetteville, AR and DEMX Architecture of Fayetteville, AR to
provide design and construction administration services associated with renovations (5) and replacements (2) of
existing restrooms in multiple parks including Finger Neighborhood Park, Wilson, Gulley, and Walker Community
Parks, and Lake Fayetteville Regional Park, for a total cost not to exceed $52,000, plus a $10,000 expense
contingency, per RFQ #19-01, Selection #21.
Budget Impact:
2250.520.9255-5806.00 Parks Development
Account Number
Fund
13001.1902
Park Restroom
Improvements
Project Number
Project Title
Budgeted Item? Yes
Current Budget
$ 700,000.00
Funds Obligated
$ 3,200.00
Current Balance
I $ 696,800.00
Does item have a cost? Yes
Item Cost
$ 62,000.00
Budget Adjustment Attached? No
Budget Adjustment
Remaining Budget $ 634,800.00
V20180321
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number:
Original Contract Number:
Comments: RFQ 19-01, Selection #21
Approval Date:
`�
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF SEPTEMBER 17, 2019
TO: Mayor and City Council
CITY COUNCIL MEMO
THRU: Don Marr, Chief of Staff
Connie Edmonston, Parks and Recreation Director
FROM: Ted Jack, Park Planning Superintendent
DATE: August 27, 2019
SUBJECT: Resolution to approve a contract between the City of Fayetteville, AR and
DEMX Architecture of Fayetteville, AR to provide design and construction
administration services associated with renovations (5) and replacements (2) of existing
restrooms in multiple parks including Finger Neighborhood Park, Wilson, Gulley, and
Walker Community Parks, and Lake Fayetteville Regional Park, for a total cost not to
exceed $52,000, plus a $10,000 expense contingency, per RFQ #19-01, Selection #21.
RECOMMENDATION:
Staff recommends approval of a contract between the City of Fayetteville, AR and DEMX
Architecture of Fayetteville, AR to provide design and construction administration services
associated with renovation and/or replacement of existing restrooms in multiple parks including
Finger Neighborhood Park, Wilson, Gulley, and Walker Community Parks, and Lake Fayetteville
Regional Park for a total cost not to exceed $52,000, plus a $10,000 expense contingency, per
RFQ #19-01, Selection #21.
BACKGROUND:
The city has several old restroom buildings of similar design built during the same general
period (1960's - 1990's) that need renovation or replacement. Restrooms to be renovated
include Gulley, Lake Fayetteville Softball, Veterans Park, Finger Park, and one restroom at
Walker Park. Two restrooms are proposed for full demolition and reconstruction including
Wilson and Walker Park adjacent to the basketball court.
DISCUSSION:
The City of Fayetteville from time to time requires professional engineering, design, and/or
construction management services related to capital improvement projects. In this instance,
DEMX Architecture was selected through an RFQ selection process (RFQ 19-01) to serve as
the professional architectural consultant for plan preparation and construction administration for
the renovation and/or replacement of seven restrooms located in five separate parks
throughout the city.
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
BUDGET/STAFF IMPACT:
Funding for this project has been budgeted and is available in project #13001.1902 — Park
Restroom Improvements.
Attachments:
SRF —Wilson Restroom DEMX Architecture
DEMX Architecture Draft Contract
AGREEMENT
For
PROFESSIONAL ARCHITECTURAL SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
DEMX ARCHITECTURE
THIS AGREEMENT is made as of J n , 2019, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and DEMX ARCHITECTURE, INC (hereinafter called DEMX).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the evaluation, design, and/or construction supervision of capital improvement projects. Therefore,
CITY OF FAYETTEVILLE and DEMX in consideration of their mutual covenants agree as follows:
DEMX shall serve as CITY OF FAYETTEVILLE's professional architectural consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYETTEVILLE during the performance of DEMX's services. All services shall be performed under
the direction of a professional architect/engineer/landscape architect 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 DEMX.
1.2 Assignments may include services described hereafter as Basic Services or as Additional Services
of DEMX.
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 DEMX
2.1 Perform professional services in connection with the Project, Restroom Renovations, which
includes the renovation of five restrooms, and reconstruction of two restrooms, in multiple parks
and as described in Attachment A, and as hereinafter stated.
2.1.1 The Scope of Services to be furnished by DEMX during the Project is included in the August 22,
2019 Proposal from DEMX, attached hereto as Attachment A, and made part of this Agreement.
2.2 DEMX shall coordinate their activities and services with the CITY OF FAYETTEVILLE.
DEMX and CITY OF FAYETTEVILLE agree that DEMX has full responsibility for the
architectural services.
DeMX Proposed Contract
2.3 DEMX shall coordinate their activities and services with other Phase l improvements, primariI\
consisting of trail and cyclocross work.
SECTION 3 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
3.1 CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of
DEMX.
3.1.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
3.1.2 Assist DEMX by placing at DEMX's disposal all available information pertinent to the
assignment including previous reports and any other data relative thereto.
3.1.3 Assist DEMX in obtaining access to property reasonably necessary for DEMX to perform its
services under this Agreement.
3.1.4 Examine all studies, reports, sketches, cost opinions, proposals, and other documents
presented by DEMX and render in writing decisions pertaining thereto.
3.1.5 The Park Planning Superintendent is the CITY OF FAYETTEVILLE's project representative
with respect to the services to be performed under this Agreement. The Park Planning
Superintendent 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.
3.1.6 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
written comments to DEMX in a timely manner.
SECTION 4 - PERIOD OF SERVICE
4.1 Time is of the essence in this agreement and 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. DEMX 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. This project may bid in two phases. The
schedule for this project is to have the work for both phases ready to bid by the city by the end of
March 2020.
SECTION 5 - PAYMENTS TO DEMX
5.1 The maximum not -to -exceed amount authorized for this Agreement is $52,000.00 plus approved
expenses not to exceed $10,000.00. The CITY OF FAYETTEVILLE shall compensate DEMX
based on the percent of work completed as described in Attachment A.
5.2 Statements
5.2.1 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for
DeMX Proposed Contract
professional services consistent with DEMX'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 DEMX 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.
5.3 Payments
5.3.1 All statements are payable upon receipt and due within thirty (30) days. If a portion of
DEMX'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 DEMX 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
5.4.1 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, DEMX 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 DEMX 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 DEMX or his sureties under this Agreement or applicable performance and payment
bonds, if any.
SECTION 6 - GENERAL CONSIDERATIONS
6.1 Insurance
6.1.1 During the course of performance of these services, DEMX 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
DeMX Proposed Contract
Limits of Liability
Statutory
$500,000 Each Accident
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
3
Professional Liability Insurance $1,000,000 Each Claim
DEMX 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 DEMX 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 DEMX's services.
6.2 Professional Responsibility
6.2.1 DEMX will exercise reasonable skill, care, and diligence in the performance of DEMX's
services and will carry out its responsibilities in accordance with customarily accepted
professional architectural practices. CITY OF FAYETTEVILLE will promptly report to
DEMX any defects or suspected defects in DEMX's services of which CITY OF
FAYETTEVILLE becomes aware, so that DEMX can take measures to minimize the
consequences of such a defect. CITY OF FAYETTEVILLE retains all remedies to recover
for its damages caused by any negligence of DEMX.
6.3 Cost Opinions and Projections
6.3.1 Cost opinions and projections prepared by DEMX relating to construction costs and
schedules, operation and maintenance costs, equipment characteristics and performance, and
operating results are based on DEMX's staff experience, qualifications, and judgment as a
design professional. Since DEMX 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, DEMX does not guarantee that actual rates, costs,
performance, schedules, and related items will not vary from cost opinions and projections
prepared by DEMX.
6.4 Changes
6.4.1 CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
DEMX'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 DEMX.
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.
DeMX Proposed Contract
4
6.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that DEMX 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,
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 DEMX at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of DEMX's default.
6.5.4 If termination for default is effected by DEMX, 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 DEMX for services rendered and expenses incurred prior to the termination,
in addition to termination settlement costs reasonably incurred by DEMX 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, DEMX 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 DEMX 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 DEMX to fulfill contractual obligations, it is determined
that DEMX 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.
6.6 Delays
6.6.1 In the event the services of DEMX are suspended or delayed by CITY OF FAYETTEVILLE
or by other events beyond DEMX's reasonable control, DEMX shall be entitled to additional
compensation and time for reasonable costs incurred by DEMX in temporarily closing down
or delaying the Project.
DeMX Proposed Contract
6.7 Rights and Benefits
6.7.1 DEMX'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 DEMX 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
DEMX 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
FAYETTEVILLE shall give DEMX 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
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 DEMX 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 DEMX 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 DEMX for services rendered by DEMX.
6.10 Publications
6.10.1 Recognizing the importance of professional development on the part of DEMX's employees
and the importance of DEMX's public relations, DEMX may prepare publications, such as
technical papers, articles for periodicals, and press releases, pertaining to DEMX'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 DEMX
CITY OF FAYETTEVILLE may require deletion of proprietary data or confidential
DeMX Proposed Contract
0
information from such publications, but otherwise CITY OF FAYETTEVILLE will not
unreasonably withhold approval. The cost of DEMX's activities pertaining to any such
publication shall be for DEMX'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 DEMX 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 Ownership of Documents
6.12.1 All documents provided by CITY OF FAYETTEVILLE including original drawings, CAD
drawings, estimates, field notes, and project data are and remain the property of CITY OF
FAYETTEVILLE. DEMX may retain reproduced copies of drawings and copies of other
documents.
6.12.2 Engineering documents, computer models, drawings, specifications and other hard copy or
electronic media prepared by DEMX as part of the Services shall become the property of
CITY OF FAYETTEVILLE when DEMX has been compensated for all Services rendered,
provided, however, that DEMX shall have the unrestricted right to their use. DEMX 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 DEMX. DEMX
shall provide cad files of survey and layout work. The city shall hold DEMX harmless from
any use of those cad files by the city for work not associated with DEMX.
6.12.3 Any files delivered in electronic medium may not work on systems and software different
than those with which they were originally produced. DEMX 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.
6.13 Notices
6.13.1 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
DEMX's address:
DEMX Architecture
104 N. East Ave.
Fayetteville, AR 72701
6.14 Successor and Assigns
DeMX Proposed Contract
6.14.1 CITY OF FAYETTEVILLE and DEMX 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 DEMX shall assign,
sublet, or transfer his interest in the Agreement without the written consent of the other.
6.15 Controlling Law
6.15.1 This Agreement shall be subject to, interpreted and enforced according to the laws of the
State of Arkansas within Washington County without regard to any conflicts of law
provisions.
6.16 Entire Agreement
6.16.1 This Agreement represents the entire Agreement between DEMX 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 DEMX a purchase order, no preprinted terms thereon shall
become a part of this Agreement. Said purchase order document, whether or not signed by
DEMX, 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 DEMX
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
DEMX 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.
7.1.2 DEMX shall be and shall remain liable, in accordance with applicable law, for all damages to
CITY OF FAYETTEVILLE caused by DEMX'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 DEMX's obligations under this clause are in addition to DEMX'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 DEMX for faulty materials, equipment, or
work.
7.2 Remedies
7.2.1 Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes
and other matters in question between CITY OF FAYETTEVILLE and DEMX arising out of
or relating to this Agreement or the breach thereof will be decided in a court of competent
jurisdiction within Arkansas.
DeMX Proposed Contract
7.3 Audit: Access to Records
7.3.1 DEMX 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. DEMX shall also maintain the financial information and data used by
DEMX 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. DEMX 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.
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 sub -agreement or purchase order awarded after
effective price competition, except:
7.3.3.3.1 With respect to record pertaining directly to sub -agreement performance, excluding
any financial records of DEMX;
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 sub -agreement is terminated for default or for convenience.
7.4 Covenant Against Contingent Fees
7.4.1 DEMX 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 DEMX 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.
DeMX Proposed Contract
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7.5 Gratuities
7.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that DEMX or any of
DEMX'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 DEMX 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 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 DEMX as it could pursue in the
event of a breach of the Agreement by DEMX 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 DEMX incurs in
providing any such gratuities to any such officer or employee.
7.6 Arkansas Freedom of Information Act
7.6.1 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, DEMX 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
DEMX, by its authorized officer have made and executed this Agreement as of the day and year first
above written.
CITY OF FWETTEVIIFb�_:, ARKANSAS DEMX
By
MjWor, tioneld Jo n Tt addox, AIA - Principa
EMX Architecture
ATVEST:
'By: V
(,Sondra
END O W%EMENT FOR PROFESSIONAL ENGINEERING SERVICES
RFQ 19-0 Renovations Renovations Project Draft
1111111
IN
DeMX Architecture
Ted Jack
Submitted By
City of Fayetteville Staff Review Form
2020-0633
Legistar File ID
N/A
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
7/23/2020 PARKS & RECREATION (520)
Submitted Date Division / Department
Action Recommendation:
Approval of a Change Order for $5000 with DeMX Architecture (Legistar File 2019-0532) for additional services to
add the Restroom Building at Lewis Park to the project renovating multiple restrooms in five other parks. The
increase in contract costs from $52,000 to $57,000 is covered in the project contingency.
Budget Impact:
2250.520.9255-5806.00 Parks Development
Account Number
13001.1902
Project Number
Budgeted Item? Yes
Does item have a cost?
Budget Adjustment Attached?
Fund
Park Restroom Improvements
Current Budget
Funds Obligated
Current Balance
Yes Item Cost
No Budget Adjustment
Remaining Budget
Project Title
$ 688,683.00
$ 43,000.00
$ 645,683,00
$ 5,000.00
$ 640,683.00
V20180321
Purchase Order Number: 2019-0671 Previous Ordinance or Resolution # 14-19
Change Order Number:
Original Contract Number:
Approval Date:
Comments: This is for additional services for RFQ 19-01, Selection #21 - Contract with DeMX approved at
9/17/2019 City Council Meeting.
CITY OF
FAYETTEVILLE
ARKANSAS
TO: Lioneld Jordan, Mayor
THRU: Susan Norton, Chief of Staff
Connie Edmonston, Parks and Recreation Director
FROM: Ted Jack, Park Planning Superintendent
DATE: July 23, 2020
STAFF MEMO
SUBJECT: Approval of a Change Order for $5000 with DeMX Architecture (Legistar File
2019-0532) for additional services to add the Restroom Building at Lewis Park to the
project renovating multiple restrooms in five other parks. The increase in contract
costs from $52,000 to $57,000 is covered in the project contingency.
RECOMMENDATION:
Approval of a Change Order for $5000 with DeMX Architecture (Legistar File 2019-0532) to add
the Restroom Building at Lewis Park to the project renovating multiple restrooms in five other
parks. The increase in contract costs from $52,000 to $57,000 is covered in the project
contingency.
BACKGROUND:
A contract for design services with DeMX Architecture was approved by Council on September
17, 2019 to provide design and construction administration services associated with renovation
and/or replacement of existing restrooms in multiple parks including Finger Neighborhood Park,
Wilson, Gulley, and Walker Community Parks, and Lake Fayetteville Regional Park for a total
cost not to exceed $52,000, plus a $10,000 expense contingency, per RFQ #19-01, Selection
#21. Since this project began, Lewis Park was acquired by the city and the restroom structure is
in need of refurbishment. Adding it to this existing contract is the most efficient way of making
the needed refurbishments.
DISCUSSION:
N/A
BUDGET/STAFF IMPACT:
The additional services for Lewis increase contract costs by $5000, which is covered by the
$10,000 expense contingency in the project.
Attachments:
Staff Review Form
Contract Amendment for Mayor's Signature
Legistar 2019-0532
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
July 13, 2020
Wade Abernathy
Director of Bond Projects and Facilities
City of Fayetteville
115 S. Church Ave.
Fayetteville, AR 72701
RE: Additional Services to Fayetteville Park Restroom Renovations - Phase 1A:
Lewis Park Restroom Renovation
General Program
Dc
PROPOSAL
This proposal is for the professional design services for the renovation of the existing restroom located at
Lewis Park. This facility is an existing concrete block wall structure with a wood framed and asphalt
shingle roof. Spaces include men's and women's restrooms, concession aera, storage room and
mechanical room. The renovations are to include but are not limited to new entry doors, new plumbing
fixtures as required, new light fixtures as required, new interior doors as required, new concession
window with security shutter and air curtain, new siding at gable ends, new interior and exterior paint,
minor plumbing corrections, freeze proof plumbing lines in attic, new water heater and a new roof.
Documents and Services
Documents and Services are to be furnished as required by the scope of the project:
Schematic Desion
Survey and Document Existing Conditions
Schematic Floor Plan
Schematic Elevations
Preliminary Cost Estimate
Construction Documents
Floor Plan, Reflected Ceiling Plan, and Roof Plan
Exterior Elevations
Wall Sections, Building Sections, and Details as Required
Interior Elevations and Details as Required
Door & Window Schedules
Project Specifications Book
Bidding & Negotiations
Answer Bidder Questions and Issue Addenda if required
Engage with General Contractor awarded the project
Construction Administration
Construction Observation and Field Reports (typically bi-weekly)
Submittal and Shop Drawing Review
RFls, Supplemental Drawings, and Sketches as required
Process Change Orders
Process Contractor Applications for Payment
Punch List and Project Close Out
104 N. East Ave, Fayetteville, Arkansas 72701
p 479.966.4871 info@demxarch.com
July 13, 2020
Fee Schedule
D E M X
The architectural fee shall be based on a lump sum of $5,000.00. This fee includes all documents and
services listed above.
The architectural/ engineering fee will be distributed as follows. -
Schematic Design 15%
Construction Documents 60%
Bidding & Negotiations 5%
Construction Administration 20%
Any additional services not outlined in this proposal can be provided based on standard hourly rates. See
the attached DEMX architecture hourly rate schedule.
The architectural/ engineering fee does not include:
Building permit or Arkansas State Health Department fees
LEED documentation and certification
Reimbursable expenses (large format printing and postage/courier services)
Civil Engineering as required (fee estimate can be provided)
Subsurface (geotechnical) investigation
Topographic survey and tree location
Landscape Architecture
Invoices shall be made monthly and/or at milestones during the project and are due upon receipt.
Should this proposal be accepted, it will serve as a supplement to the contract for design and construction
administration services for renovations and replacements to multiple restrooms in multiple parks and be used in
conjunction with the City of Fayetteville, Arkansas Professional Services Contract for Architectural
Services.
Date: / )/
City of F ttev le, A ansas
DeMX
Bye vim_
By:
ay , Lion o an
`G��R m dox, AIA - Principal
i
ATTEST
.����y•' CITy'•�F'%
0�.9J,G
Kara Paxton, City Cler Treasurer
:rr"
E�
7
coy
112?-,
104 N. East Ave, Fayetteville, Arkansas 72701
p 479.966.4871 info@demxarch.com
yY'
113 West Mountain Street
Fayetteville, AR 72701
(479) 57"323
Resolution: 214-19
File Number: 2019-0532
DEMX ARCHITECTURE:
A RESOLUTION TO APPROVE A PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT
WITH DEMX ARCHITECTURE, PURSUANT TO RFQ #19-01, IN AN AMOUNT NOT TO EXCEED
$52,000.00 FOR DESIGN AND CONSTRUCTION ADMINISTRATION SERVICES ASSOCIATED
WITH THE RENOVATION AND REPLACEMENT OF EXISTING RESTROOMS IN MULTIPLE CITY
PARKS, AND TO APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF $10,000.00
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a professional
architectural services agreement with DEMX Architecture, pursuant to RFQ #19-01, in the amount not to
exceed $52,000.00 for design and construction administration services associated with the renovation
and replacement of existing restrooms in multiple city parks, and further approves a project contingency in
the amount of $10,000.00.
PASSED and APPROVED on 9/17/2019
Attest: �.��.• C1TY�•�;yJ!.�
ti %�i •.'�RNSPS••'����.
Lisa Branson, Deputy City Clerk 411111�����
Pays 1 Printed on WIW19
City of Fayetteville, Arkansas 1 13 vVest Mountain Stieet
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2019-0532
Agenda Date: 9/17/2019 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: A. 11
DENIX ARCHITECTURE:
A RESOLUTION TO APPROVE A PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT
WITH DEMX ARCHITECTURE, PURSUANT TO RFQ 419-01, IN AN AMOUNT NOT TO EXCEED
$52,000.00 FOR DESIGN AND CONSTRUCTION ADMINISTRATION SERVICES ASSOCIATED
WITH THE RENOVATION AND REPLACEMENT OF EXISTING RESTROOMS IN MULTIPLE
CITY PARKS, AND TO APPROVE A PROJECT CONTINGENCY IN THE AMOUNT OF $10,000.00
RE 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 professional
architectural services agreement with DEMX Architecture, pursuant to RFQ #19-01, in the amount not to
exceed $52,000.00 for design and construction administration services associated with the renovation and
replacement of existing restrooms in multiple city parks, and
further approves a project contingency in the amount of $10,000.00.
City of Fayetteville. Arkansas Page 1 Printed on 9/1912019
City of Fayetteville Staff Review Form
2019-0532
Legistar File ID
9/17/2019
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Ted Jack 8/22/2019 PARKS & RECREATION (520)
Submitted By Submitted Date Division / Department
Action Recommendation:
Resolution to approve a contract between the City of Fayetteville, AR and DEMX Architecture of Fayetteville, AR to
provide design and construction administration services associated with renovations (5) and replacements (2) of
existing restrooms in multiple parks including Finger Neighborhood Park, Wilson, Gulley, and Walker Community
Parks, and Lake Fayetteville Regional Park, for a total cost not to exceed $52,000, plus a $10,000 expense
contingency, per RFQ #19-01, Selection #21.
Budget Impact:
2250.520.9255-5806.00 Parks Development
Account Number
13001,1902
Project Number
Budgeted Item? Yes
Fund
Park Restroom Improvements
Project Title
Current Budget $ 700,000.00
Funds Obligated $ 3,200.00
Current Balance �$ 696,800.00
Does item have a cost? Yes Item Cost $ 62,000.00
Budget Adjustment Attached? No Budget Adjustment
Remaining Budget $ 634,840.00
�,20180321
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number: Approval Date:
Original Contract Number:
Comments: RFQ 19-01, Selection #21
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF SEPTEMBER 17, 2019
TO: Mayor and City Council
CITY COUNCIL MEMO
THRU: Don Marr, Chief of Staff
Connie Edmonston, Parks and Recreation Director
FROM: Ted Jack, Park Planning Superintendent
DATE: August 27, 2019
SUBJECT: Resolution to approve a contract between the City of Fayetteville, AR and
DEMX Architecture of Fayetteville, AR to provide design and construction
administration services associated with renovations (5) and replacements (2) of existing
restrooms in multiple parks including Finger Neighborhood Park, Wilson, Gulley, and
Walker Community Parks, and Lake Fayetteville Regional Park, for a total cost not to
exceed $52,000, plus a $10,000 expense contingency, per RFQ #19-01, Selection #21.
RECOMMENDATION:
Staff recommends approval of a contract between the City of Fayetteville, AR and DEMX
Architecture of Fayetteville, AR to provide design and construction administration services
associated with renovation and/or replacement of existing restrooms in multiple parks including
Finger Neighborhood Park, Wilson, Gulley, and Walker Community Parks, and Lake Fayetteville
Regional Park for a total cost not to exceed $52,000, plus a $10,000 expense contingency, per
RFQ #19-01. Selection #21.
BACKGROUND:
The city has several old restroom buildings of similar design built during the same general
period (1960's - 1990's) that need renovation or replacement. Restrooms to be renovated
include Gulley. Lake Fayetteville Softball, Veterans Park, Finger Park, and one restroom at
Walker Park. Two restrooms are proposed for full demolition and reconstruction including
Wilson and Walker Park adjacent to the basketball court.
DISCUSSION:
The City of Fayetteville from time to time requires professional engineering, design, and/or
construction management services related to capital improvement projects. In this instance,
DEMX Architecture was selected through an RFQ selection process (RFQ 19-01) to serve as
the professional architectural consultant for plan preparation and construction administration for
the renovation and/or replacement of seven restrooms located in five separate parks
throughout the city.
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
BUDGET/STAFF IMPACT:
Funding for this project has been budgeted and is available in project #13001.1902 — Park
Restroom Improvements.
Attachments:
SRF — Wilson Restroom DEMX Architecture
DEMX Architecture Draft Contract
AGREEMENT
For
PROFESSIONAL, ARCHITECTURAL SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
DEMX ARCHITECTURE
THIS AGREEMENT is made as of S . 1 , 2019, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and DEMX ARCHITECTURE, INC (hereinafter called DEMX).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the evaluation, design, and/or construction supervision of capital improvement projects. Therefore,
CITY OF FAYETTEVILLE and DEMX in consideration of their mutual covenants agree as follows:
DEMX shall serve as CITY OF FAYETTEVILLE's professional architectural consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYETTEVILLE during the performance of DEMX's services. All services shall be performed under
the direction of a professional architect/engineer/landscape architect 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 DEMX.
1.2 Assignments may include services described hereafter as Basic Services or as Additional Services
of DEMX.
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 DEMX
2.1 Perform professional services in connection with the Project, Restroom Renovations, which
includes the renovation of five restrooms, and reconstruction of two restrooms, in multiple parks
and as described in Attachment A, and as hereinafter stated.
2.1.1 The Scope of Services to be furnished by DEMX during the Project is included in the August 22,
2019 Proposal from DEMX, attached hereto as Attachment A. and made part of this Agreement.
2.2 DEMX shall coordinate their activities and services with the CITY OF FAYETTEVILLE.
DEMX and CITY OF FAYETTEVILLE agree that DEMX has full responsibility for the
architectural services.
DeklX Proposed Contract
2.3 DEMX shall coordinate their activities and services with other Phase I improvements, primarily
consisting of trail and cyclocross work.
SE( 1-ION 3 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
3. I CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of
DEMX.
3.1.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
3.1.2 Assist DEMX by placing at DEMX's disposal all available information pertinent to the
assignment including previous reports and any other data relative thereto.
3.1.3 Assist DEMX in obtaining access to property reasonably necessary for DEMX to perform its
services under this Agreement.
3.1.4 Examine all studies, reports, sketches, cost opinions, proposals, and other documents
presented by DEMX and render in writing decisions pertaining thereto.
3.1.5 The Park Planning Superintendent is the CITY OF FAYETTEVILLE's project representative
with respect to the services to be performed under this Agreement. The Park Planning
Superintendent 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.
3.1.6 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
\� ritten comments to DEMX in a timely manner.
SECTION 4 - PERIOD OF SERVICE
4.1 Time is of the essence in this agreement and 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. DEMX 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. This project may bid in two phases. The
schedule for this project is to have the work for both phases ready to bid by the city by the end of
March 2020.
SECTION 5 - PAYMENTS TO DEMX
5.1 The maximum not -to -exceed amount authorized for this Agreement is $52,000.00 plus approved
expenses not to exceed $10,000.00. The CITY OF FAYETTEVILLE shall compensate DEMX
based on the percent of work completed as described in Attachment A.
5.2 Statements
5.2.1 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for
DeMX Proposed Contract
I
professional services consistent with DEMX'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 DEMX 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.
5.3 Payments
5.3.1 All statements are payable upon receipt and due within thirty (30) days. If a portion of
DEMX'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 DEMX 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
5.4.1 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, DEMX 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 DEMX 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 DEMX or his sureties under this Agreement or applicable performance and payment
bonds, if any.
SECTION 6 - GENERAL CONSIDERATIONS
6.1 Insurance
6.1.1 During the course of performance of these services, DEMX 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
Deti1X Proposed Contract
Limits of Liability
Statutory
$500,000 Each Accident
$1.000,000 Combined Single Limit
$1,000,000 Combined Single Limit
Professional Liability Insurance $1,000.000 Each Claim
DEMX 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 DEMX 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 DEMX's services.
6.2 Professional Responsibility
6.2.1 DEMX will exercise reasonable skill, care, and diligence in the performance of DEMX's
services and will carry out its responsibilities in accordance with customarily accepted
professional architectural practices. CITY OF FAYETTEVILLE will promptly report to
DEMX any defects or suspected defects in DEMX's services of which CITY OF
FAYETTEVILLE becomes aware, so that DEMX can take measures to minimize the
consequences of such a defect. CITY OF FAYETTEVILLE retains all remedies to recover
for its damages caused by any negligence of DEMX.
6.3 Cost Opinions and Projections
6.3.1 Cost opinions and projections prepared by DEMX relating to construction costs and
schedules, operation and maintenance costs, equipment characteristics and performance, and
operating results are based on DEMX's staff experience, qualifications, and judgment as a
design professional. Since DEMX 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, DEMX does not guarantee that actual rates, costs,
performance, schedules, and related items will not vary from cost opinions and projections
prepared by DEMX.
6.4 Changes
6.4.1 CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
DEMX'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 DEMX.
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.
DeMX Proposed Contract
6.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that DEMX 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,
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 DEMX at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of DEMX's default.
6.5.4 If termination for default is effected by DEMX, 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 DEMX for services rendered and expenses incurred prior to the termination,
in addition to termination settlement costs reasonably incurred by DEMX 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, DEMX 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 DEMX 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 DEMX to fulfill contractual obligations, it is determined
that DEMX 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.
6.6 Delays
6.6.1 In the event the services of DEMX are suspended or delayed by CITY OF FAYETTEVILLE
or by other events beyond DEMX's reasonable control, DEMX shall be entitled to additional
compensation and time for reasonable costs incurred by DEMX in temporarily closing down
or delaying the Project.
DeMX Proposed Contract
6.7 Rights and Benefits
6.7.1 DEMX'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 DEMX 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
DEMX 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
FAYETTEVILLE shall give DEMX 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
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 DEMX 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 DEMX 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 DEMX for services rendered by DEMX.
6.10 Publications
6.10.1 Recognizing the importance of professional development on the part of DEMX's employees
and the importance of DEMX's public relations. DEMX may prepare publications, such as
technical papers, articles for periodicals, and press releases, pertaining to DEMX'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 DEMX
CITY OF FAYETTEVILLE may require deletion of proprietary data or confidential
DeNIX Proposed Contract
information from such publications, but otherwise CITY OF FAYETTEVILLE will not
unreasonably withhold approval. The cost of DEMX's activities pertaining to any such
publication shall be for DEMX'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 DEMX 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 Ownership of Documents
6.12.1 All documents provided by CITY OF FAYETTEVILLE including original drawings, CAD
drawings, estimates, field notes, and project data are and remain the property of CITY OF
FAYETTEVILLE. DEMX may retain reproduced copies of drawings and copies of other
documents.
6.12.2 Engineering documents, computer models, drawings, specifications and other hard copy or
electronic media prepared by DEMX as part of the Services shall become the property of
CITY OF FAYETTEVILLE when DEMX has been compensated for all Services rendered,
provided, however, that DEMX shall have the unrestricted right to their use. DEMX 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 DEMX. DEMX
shall provide cad files of survey and layout work. The city shall hold DEMX harmless from
any use of those cad files by the city for work not associated with DEMX.
6.12.3 Any files delivered in electronic medium may not work on systems and software different
than those with which they were originally produced. DEMX 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.
6.13 Notices
6.13.1 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
DEMX's address:
DEMX Architecture
104 N. East Ave.
Fayetteville, AR 72701
6.14 Successor and Assigns
DeMX Proposed Contract
6.I4.1 CITY OF FAYETTEVILLE and DEMX 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 DEMX shall assign,
sublet, or transfer his interest in the Agreement without the xN ritten consent of the other.
6.15 Controlling Law
6.15.1 This Agreement shall be subject to, interpreted and enforced according to the laws of the
State of Arkansas within Washington County without regard to any conflicts of law
provisions.
6.16 Entire Agreement
6.16.1 This Agreement represents the entire Agreement between DEMX 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 DEMX a purchase order, no preprinted terms thereon shall
become a part of this Agreement. Said purchase order document, whether or not signed by
DEMX, 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 DEMX
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
DEMX 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.
7.1.2 DEMX shall be and shall remain liable, in accordance with applicable law, for all damages to
CITY OF FAYETTEVILLE caused by DEMX'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 DEMX's obligations under this clause are in addition to DEMX'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 DEMX for faulty materials, equipment, or
work.
7.2 Remedies
7.2.1 Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes
and other matters in question between CITY OF FAYETTEVILLE and DEMX arising out of
or relating to this Agreement or the breach thereof will be decided in a court of competent
jurisdiction within Arkansas.
DeMX Proposed Contract
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7.3 Audit: Access to Records
7.3.1 DEMX 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. DEMX shall also maintain the financial information and data used by
DEMX 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. DEMX 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.
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 sub -agreement or purchase order awarded after
effective price competition, except:
7.3.3.3.1 With respect to record pertaining directly to sub -agreement performance, excluding
any financial records of DEMX;
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 sub -agreement is terminated for default or for convenience.
7.4 Covenant Against Contingent Fees
7.4.1 DEMX 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 DEMX 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.
DeMX Proposed Contract
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7.5 Gratuities
7.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that DEMX or any of
DEN1X'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 DEMX 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 facts on which CITY OF
FAYETTEVILLE bases such finding shall be in issue and may be reviewed in proceedings
underthe Remedies clause ofthis 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 DEMX as it could pursue in the
event of a breach of the Agreement by DEMX 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 DEMX incurs in
providing any such gratuities to any such officer or employee.
7.6 Arkansas Freedom of Information Act
7.6.1 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, DEMX 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
DEMX by its authorized officer have made and executed this Agreement as of the day and year first
above written.
CITY OF FAyVETTEVIL�, ARKANSAS DEMX
By,
M or, ioneld 10 n Ti addox, AIA Principe
i EMX Architecture
ATV EST:
�By: U1 `jCU L�itle:
)►�Son drai� t®it t r • •1 Qto��k
All c1, v���F��
END OF�A EMENT FOR PROFESSIONAL ENGINEERING SERVICES
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