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May 2, 2013 . MINUTES WEST MEMPHIS CITY COUNCIL May 2,2013 AroQularnneotin0ofthoVVeotK4emnphimCib/Counoi|vmaohe|donThunmday. K8ay2 2O13mt1�3Opnn in the C�ib/ Council CMamnbersot{�iiy Hall, 205 S. Rmdding, West Memphis, Arkansas. ` 1:30 � ' Invocation was given by Eddie Brawley. Mayor Johnson called the meeting to order at 1:30p .m.� Phillip Para,ane' City b/Qarh. oaUedthenoU� Those present were: /mr �Y�onfJohnson, City Attorney David Peeples, C�v//eamu/erFnank &mr�n and Councilors, Herman Coleman, Marco ��mpm�mn Willis--~* James Holt Yao/} one\ Lmrnm/neFb/namn. James Pulliaum, and Ramona Taylor. Those mommm t �y�: Melanie Hutchinson and Tracy Ca/i Quorum being present, Mayor Johnson proceeded with t eUng MINUTES LCouncilor Taylor noxad, seconded by Councilor Tyrone to dispense with the reading of the minutes of April 18, 2013 City Council meeting approve them as submitted. Upon voice vote, the voting was unanimous to approve. NEW BUSINESS Councilor Pulliaum mad a motion, seconded by Councilor Taylor to suspend the rules and read title only of 0-1. Upon voice vote, the voting was unanimous to approve. 0-1 AN ORDINANCE TO ESTABLISH TAP FEES FOR CONNECTIONS TO WATER LINES OF THE CITY OF WEST MEMPHIS,AND FOR OTHER PURPOSES. City Attorney Peeples read the Ordinance for the FIRST time. PERMISSION REQUEST Councilor Robinson made a motion, seconded by Councilor Taylor to approve payment of$352,826.00 to Scruggs for the Waste Water Flush Truck. Upon voice vote, the voting was unanimous. Councilor Robinson made a motion, seconded by Councilor Taylor to approve payment of$92,671.31 to Stribling Equipment for a backhoe loader. Upon voice vote, the voting was unanimous. Councilor Tyrone made a motion, seconded by Councilor Taylor to give permission for the Mayor to sign an Agreement for Transportation Planning/Engineering Services with Brawley Consulting Engineers, Inc. (MPO Agreement). Upon voice vote, the voting was unanimous. COMMITTEE REPORTS A& P Commission—Councilor Taylor reported that the Civic Center had 8 days of rentals with 1,215 visitors and the Auditorium had 3 events with 13 days of rentals with 2,790 visitors. The Commission approved the purchase of a portion of a new product in a coffee table book entitled Arkansas that was recommended by the Arkansas Economic Development Commission and Arkansas Tourism Department. Also, approved was a donation to the Fallen Officers Memorial at Worthington Park. PUBLIC WORKS COMMISSION —Councilor Taylor reported that there was a special called meeting to review bids for the backhoe loader. They also discussed department heads attending Municipal League in June. Councilor Taylor reminded the public that the Delta Market is every Thursday from 7:30 to 1:00pm. Councilor Robinson reported the Keep West Memphis Bea i l Team went out to do a Litter/Debris Index. They covered every ward and over all West Memphis scored a 1.5 which is hardly any litter. Signs and graffiti was a 1.3, very low. The main problem th ghut the City is junk cars and outside storage. Councilor Robinson reminded the public that Saturday May 4^' is Clean-up Day. ANNOUNCEMENTS Councilor Pullivam informed the public that May 9th, will be the second meeting on the Youth Summit at 12:00pm at the Civic Center. Councilor Coleman informed the council that after attending a Municipal League meeting that he received a copy of City employees that have started the certification process and hours remaining. Mayor Johnson announced that the new Hazmat truck is parked out front for everyone to see and admire. L Having no further business to come before the City Council, Councilor Pulliaum moved, second by Councilor Coleman to adjourn. Upon voice vote, the voting was unanimous. The meeting adjourned at PASSED and APPROVED this_16th_day of May 2013. WILLIAM H. JOHNSO , MAYOR ATTEST: PHILLIP PAA, CITY CLERK Minutes prepared by: Tracy Camper, Jr. Deputy City Clerk AGREEMENT FOR TRANSPORTATION PLANNING/ENGINEERING SERVICES JOB 110481 WEST MEMPHIS AIR QUALITY PLANNING FAP NO. CM-PLAN(214) JOB 110273 WMATS TRANSPORTATION PLANNING FAP NO.STPU-2014(11 JOB 818 WEST MEMPHIS AREA TRANSPORTATION STUDY FAP NO.AR-81-X018 PREAMBLE THIS AGREEMENT, entered into this 1st day of July , 2013, by and between City of West Memphis ("Owner"), and Brawlev Consulting Enoineers, Inc. ("Consultant"), a corporation existing under the laws of the State of Arkansas with principal offices at 796 West Broadway,West Memphis, AR 72301 WITNESSETH: WHEREAS, Metropolitan Planning Funds(PL)authorized by 23 U.S.C. 104 (f) have been allocated to the Metropolitan Planning Organization(MPO's)as designated by the Governor to support the Urban Transportation Planning process established pursuant to Section 134 of Chapter I of Title 23, United States Code, and, WHEREAS, the Owner has been designated by the Governor of Arkansas as the Planning Organization responsible for administration of the transportation study as described in the West Memphis-Marion Area Transportation Study Unified Planning Work Program (UPWP) which is to be financed with ETA 5303, CMAQ, and STP Attributable Funds allocated under The Federal Transportation Program, and, WHEREAS, the Owner has considered that with current staff's workload and the need for additional expertise for meeting the Federal Highway Administration's continuing planning process, it is in the best interest to obtain the assistance of the consultant's organization and, WHEREAS, the Consultant's staff is adequate and well qualified and it has been determined that its workload will permit completion of the UPWP Work Tasks on schedule on a continuing basis. NOW THEREFORE, it is considered to be in the best public interest to obtain the assistance of the Consultant's organization in connection with transportation planning and engineering services. In consideration of the faithful performance of each party of the mutual covenants and agreements set forth hereinafter, it is mutually agreed as follows: 1. PRELIMINARY MATTERS • 1.1. "Owner means The City of West Memphis,Arkansas" 1.2. "Consultant's Representative" shall be Eddie E. Brew P.E, , until written notice is provided to the Owner designating a new representative. 1.3. "Contract Ceiling Price." The Contract Ceiling Price for this Agreement is $357.500.00. The Contract Ceiling Price is the maximum aggregate amount of all payments that the Owner may become obligated to make under this Agreement. In no event, unless modified in writing, shall total payments by the Owner under this Agreement exceed the Contract Ceiling Price. The Consultant shall not be entitled to receive adjustment, reimbursement, or payment, nor shall the Owner, its officers, 1 agents, employees, or representatives, incur any liability any fee or cost related to Consultant's Services, exceeding the Contract Ceiling P'-_. 1.4. "Contract Price"is aggregate amount of allowable costs and fees to be paid by the Owner under this Agreement. 1.5. "Default"means the failure of the Consultant to perform any of the provisions of this Agreement. Default includes, but is not limited to, failure to complete phases of the work according to schedule or failure to make progress in the work so as to endanger timely performance of this Agreement, failure to pay subcontractors in a timely manner, failure 6o comply with federal and state/amm' and failure ho comply with mpdYfi:etionsmade/nor pursuant to this Agreement. 1.6. "Department"or"AHTD"means the Arkansas State Highway and Transportation Department. 1.7. "DOT"means the United States Department of Transportation. 1.8. "FAR"means the Federal Acquisition Regulations, codified in 48 C.F.R. 1'9. "Fee"whether fixed or otherwise is a dollar amount that includes the Consultant's profit on the job. 1.10. "FHWA"means the Federal Highway Administration 1.11. "Indirect Cost Rate." The Indirect Cost Rate is defined in the provi of 48 C.F.R. Part 31, and is also subject to any limitations contained herein. The Indirect Cost Rate for the Consultant under this Agreement shall be 166.90 percent. 1.12. 70e I Services" are those services provided by the Consultant before the award of the contract for the construction of the Proect, consisting primarily of engineering services for the planning or design of the Project. 1.13. "Title I Services Ceiling Price."The Title I Services Ceiling Price for this Agreement is $357.500.00. The Title I Services Ceiling price is the maximum aggregate amount of all payments that the Owner may become obligated to make under this Agreement for fees and costs related to Title I Services. In no evend, unless modified in writing, shall total payments by the Owner related to Title I Services exceed the Title I Services Ceiling Price. The Consultant shall not be entitled to receive adjustment, reimburaament, or payment for, nor shall the Owner, its officero, agantn, amp|oyeoo, or representatives, incur any liability for, any fee or cost related to, Title I Services exceeding the Title I Services Ceiling Price. 1.14. "Title II Multiplier" (if applicable) is the mark-up by which the fee and indirect costs associated with Title II services are calculated. The Title II Multiplier, which accounts for the fee and indirect costs, is multiplied by the salary rate, as shown on the Schedule of Salary Rangma, of the particular individual(s) performing the Title U services. The Tale II .' Multiplier for the term of this Agreement is 3.09. 1.15. "Title II Services"are those services provided by the Consultant after the award of the contract for the construction of the Proact, consisting primarily of engineering services during the construction of the P 'ect. 1,16. "Title II Se ices Ceiling Price". The Title II Services Ceiling Price for this Agreement is N/A. The Title II Services Ceiling price is the maximum aggregate amount of all payments that the Owner may become obligated to make under this Agreement for fees and costs 2 related to Title II Services. In no event, unless modified in writing,shall total payments by the Owner related to Title II Services exceed the Title II Services Ceiling Price. The Consultant shall not be entitled to receive adjustment, reimbursement, or payment for, nor shall the Owner, its officers, agents, employees, or representatives, incur any liability for, any fee or cost related to, Title II Services exceeding the Title II Services Ceiling Price. 2. TYPE OF AGREEMENT 2.1. This Agreement is a cost-plus-fixed-fee contract. The Consultant is being hired to perform, and carry out in a satisfactory and proper manner, as determined by the Owner, the planning and engineering services necessary to accomplish the Tasks of the FY 2014 Unified Planning Work Program as described in the attached summary, Appendix B,(subject to FHWA final approval)which is a part of this contract. Subsequent services shall be as approved and specified in FY2015 to 2017 Unified Planning Work Programs as set forth herein. In consideration for services performed, the Owner will reimburse the Consultant for allowable direct and indirect costs, as defined herein, and pay the Consultant a fixed fee. If Title II services are to be performed,the Owner will reimburse the Consultant for allowable direct costs and also pay the Consultant an amount determined by multiplying the salary rate of the individual(s)performing the Title II services,as shown on the Schedule of Salary Ranges,by the Title II Multiplier. 2.2. The Project to be performed under this Agreement is a federally-assisted project and federal funds will be used, in part,to pay the Consultant. Therefore, notwithstanding any provision of this Agreement, all payments, costs, and expenditures are subject to the requirements and limitations of 48 C.F.R. Part 31, and the Consultant shall certify the accuracy of all invoices and requests for payment, along with supporting documentation and any information provided in determining the Indirect Cost Rates. 3. COSTS, FEES, AND PAYMENT 3.1. Allowable costs. 3.1.1. Allowable costs are subject to the limitations, regulations principles and procedures in 48 C.F.R. Part 31,which are expressly incorporated into this Agreement by reference. For the purpose of reimbursing allowable costs(except as provided in subparagraph 2 below,with respect to pension, deferred profit sharing, and employee stock ownership plan contributions), the term costs includes only- 3.1.1.1. Those recorded costs that, at the time of the request for reimbursement,the Consultant has paid by cash, check, or other form of actual payment for items or services purchased directly for the Agreement; 3.1.1.2. When the Consultant is not delinquent in paying costs of contract performance in the ordinary course of business, costs incurred, but not necessarily paid,for— • Materials issued from the Consultant's inventory and placed in the production process for use in its performance under this Agreement; • Direct labor; • Direct travel; Only travel outside the West Memphis and adjoining Memphis MPO area shall be paid for directly. Any travel outside the West Memphis-Marion Area Transportation Study Area related to activities of the approved Unified Planning Work Program and funded all or in part 3 with PL Funds must have prior approval of the Owner and shall not exceed lodging, meals, and travel expenses above AHTD allowances. • Other direct in-house costs; and • Properly allocable and allowable indirect costs, as shown in the records maintained by the Consultant for purposes of obtaining reimbursement under government contracts; and • The amount of progress payments that have been paid to the Consultant's subcontractors under similar cost standards. 3.1.1.3 Consultant's contributions to any pension or other post-retirement benefit, profit-sharing or employee stock ownership plan funds that are paid quarterly or more often may be included in indirect costs for payment purposes; provided,that the Consultant pays the contribution to the fund within 30 days after the close of the period covered. Payments made 30 days or more after the close of a period shall not be included until the Consultant actually makes the payment.Accrued costs for such contributions that are paid less often than quarterly shall be excluded from indirect costs for payment purposes until the Consultant actually makes the payment. 3.1.1.4 Notwithstanding the audit and adjustment of invoices or vouchers, allowable indirect costs under this Agreement shall be obtained by applying Indirect Cost Rates established in accordance with Subsection 3.3 below. 3.1.1.5 Any statements in specifications or other documents incorporated in this Agreement by reference designating performance of services or furnishing of materials at the Consultant's expense or at no cost to the Owner shall be disregarded for purposes of cost-reimbursement. 3.2. Salaries. The following schedule covers the classification of personnel and the salary ranges for all personnel anticipated to be assigned to this project by the Consultant: 3.2.1 Schedule of Hourly Rates DIRECT LABOR HOURLY SALARY RATE Study Director(Professional Engineer) $ 50.00-$75.00 Engineer III $ 26.00 $37.00 MPO Transportation Planner $ 26.00-$37.00 Engineer I $ 20.00-$27.00 Field Technician II $ 19.00-$26.00 Office Manager $ 18.00-$25.00 Field Technician I $ 12.00-$ 16.00 3.2.2 The Owner shall reimburse the Consultant for overtime costs only when the overtime has been authorized in writing by the Owner. When authorized, overtime shall be reimbursed at the rate of time and one-half for all nonexempt employees. Notwithstanding this provision,the Consultant must comply with all federal and state wage and hour laws and regulations, regardless whether the overtime is considered reimbursable under this Agreement. 4 — ~ 3.3 Indirect Cost Rates. 3.3.1 Allowable indirect costs incurred by the Consultant shall also be reimbursed by the Owner at the Indirect Cost Rate. The Indirect Cost Rate of the Consultant for this Agreement shall be the rate as set forth in subsection 1.10. If applicable,the Indirect Cost Rate for any approved subcontractors shall be determined in the same manner and subject to the same limitations as the Consultant, and shall be listed for each subcontractor identified in Appendix B. The Indirec Cost Rate, or any adjustment thereto, shall not change any monetary ceiling, contract obligation, or specific cost allowance, or disallowance provided for in this Agreement except as provided for in sections 3.4.3. 3.4.4, and 3.4.5. The Indirect Cost Rate must reflect the allowable indirect costs pursuant to 48 C.F.R. Part 31 ("FAR"). 3.3.2 In establishing the Indirect Cos Rate or proposing any adjustment thereto,the Consultant mhaU, upon request, submit to the Owner, FHWA, or their representatives an audited indirect cost rate and supporting cos data in accordance with the requirements set forth in the current Arkansas Highway& Transportation Department Indirect Cost Rate Audit Requirements. 3.3.3 During the term of this Agreement, if an audit of a subsequent accounting period of the Consultant demonstrates that the Consultant has incurred allowable indirect costs at a different rate than the Indirect Cost Rate, the Indirect Cos Rate shall be adjusted. Any adjustment is su to the audit and documentation requirements ofthaFARmndthecunerdAnkanoaaHighwsy& Transportation Department Indirect Cost Rate Audit Requirements. Except in the case of a provisional Indirect Cost Rate, as provided in the following subparagraphs, or the disallowance of cost following a subsequent audit, any adjustment to the Indirect Cost Rate shall be effective only prospectively from the date that the adjustment is accepted. 3.3.4 In order to expedite some projects, when an audited indirect cost rate has not yet been submitted and approved,the Owner may extend a temporary waiver and accept a provisional indirect cost rate. This provisional rate must be reviewed by, and receive a positiverecommendation from the Arkansas Highway and Transportation Department's Chief Auditor. The provisional cost proposal must be accompanied by written assurance from an independent CPA that he/she has been engaged to audit the costs in accordance with the above requirements. The anticipated audit must be based on costs incurred in the most recently completed fiscal year for which the cost data is available, with the audit scheduled to begin within a reasonable time frame. If the date of the initial cost proposal is within the last quarter of the current fiscal year,the audit may be delayed until the current fiscal year is closed and the final cost data is available. The written assurance from the CPA that he or she has been engaged to perform the audit at an appropriate time is still required. 3.3.5 Once an audited indirect cost rate is approved, the ceiling prices provided for in the initial agreement using the provisional indirect cost rate will be adjusted with a supplemental agreement to implement the resulting increase or decrease from revising the Indirect cost rate, and all amounts paid the consultant prior to receipt and acceptance of an audited indirect cost rate will be retroactively adjusted for changes in the indirect cost rate. However, no changes in hours,fixed fees, or other costs will be allowed as a result of appl ing the audited indirect cost rate. 5 ' 3.4 Fees.The justification for the fees and costs is contained in Appendix A. In addition to reimbursement of the allowable costs as set forth above, the Owner shall pay to the Consultant mfixad fee pf$38,233'95.for these Services. For Title II Services, if applicable, the Owner shall reimburse the Consultant for allowable direct costs and also pay to the Consultant an amount determined by multiplying the salary rate of the individual(s) performing the Title II Services, as shown on the Schedule of Salary Ranges, by the Title II Multiplier. The Title II Multiplier shall account for all fees and indirect costs associated with Title II services; 3.5 Invoices, Reimbursement, and Partial Payments. Submission of invoices and payment of the fees shall be made as follows, unless modified by the mitten agreement of both parties: 3.5.1 Not more often than once per month,the Consultant shall submit to the Owner, in such form and detail as the Owner may require, an invoice or voucher supported by a statement of the claimed allowable costs for performing this Agreement, and estimates of the amount and value of the work accomplished under this Agreement. The invoices for costs and estimates for fees shall be supported by any data requested by the Owner 3.5.2 In making estimates for fee purposes, such estimates shall include only the amount rtandva|uoofthmwmrhaocomp|ishedondperfonmwdbytheConwu|bant under this Agreement which meets the standards of quality established under this Agreement. The Consultant shall submit with the estimates any supporting data required by the Owner. At a minimum,the supporting data shall include a progress report in the form and number required by the Owner. 3.5.3 Upon approval of the estimate by the Owner, payment upon properly executed vouchers ha|| be made to th Consultant, as soon as praot| bl of 100 percent of the allowed costs, and of 90 percent of the approved amount of the estimated ee, less a previous payments. Notwithstanding any other provision o this Agreement, only costs and fees determined to be allowable by the Owner in accordance with subpart 31.2 of the Federal Acquisition Regulations(FAR)in effect on the date of this Agreement and under the terms of this Agreement shall be reimbursed or paid. 3.5.4 Before final final payment under the Agreement,and as a condition precedent thereto, the Consultant shall exeóute and deliver to the Owner a release of all claims which are known or reasonably could have been known to exist against the Owner arising under or by virtue of this Agreement, other than any claims that are specifically excepted by the Consultant from the operation of the release in amounts stated in the release. 3.6 Title I Services, Title II Services, and Contract Prices. The parties agree that aggregate payments under this Agreement, including all costs and fees, shall not exceed the Contract Ceiling Price. The parties further agree that aggregate payments for Tle I services under this Agreement,including all costs and fees, shall not exceed the Title I Services Ceiling Price; and that aggregate payments for Title II services under this Agreement, including all costs and fees, shall not exceed the Title II Services Ceiling Price. No adjustment of the Indirect Cost Rate or the Title ll Multiplier, claim, or dispute shall affect the limits imposed by these ceiling prices. No payment of costs or fees shall be made above these ceiling prices unless the Agreement|omod|fiadinwriting. 6 3.7 Fina payment. 3.7.1 The Consultant shall submit a completion invoice or voucher, designated as such, promptly upon completion of the work, but no later (or longer, as the Owner may approve in writing) after the completion date. Upon approval of the completion invoice or voucher, and upon the Consultant's compliance with all terms of this Agreement, the Owner shall promptly pay any balance of allowable costs and any retainage owed to the Consultant. After the release of said retainage Consultant agrees that it will continue to provide consultation services to the Owner as needed through supplemental agreement(s) with respect to the contracted services under this Agreement until all work is completed under both Title I and Title II. 3.7.2 The Consultant shall pay to the Owner any refunds, nsba1eo, creditm, or other amounts(including interest, if any) accruing to or received by the Consultant or any assignee under this Agreement,to the extent that those amounts are properly allocable to costs for which the Consultant has been reimbursed by the Owner. Reasonable expenses incurred by the Consultant for securing refunds, rebates, credits, or other amounts shall be allowable costs if approved by the Owner. Before final payment under this Agreement, the Consultant and each assignee whose assignment is in effect at the time of final payment shall execute and deliver- • An assignment to the Owner, in form and substance satisfactory to the Owner, of refunds, rebates, credits, or other amounts(including interest, tf any)properly allocable to costs for which the Consultant has been reimbursed by the Owner under this Agreement; and, • A release discharging the Owner, its officers, agents, and employees from all liabilities, obligations and claims which were known or could reasonably have been known to exist arising out of or under this Agreement. 3.8 Owner's Right to Withhold Payment. The Owner may withhold payment to such extent as it deems necessary as a result of: (1)third party claims arising out of the services of the Consultant and made against the Owner; (2)evidence of fraud, over-billing, or overpayment; (3)inclusion of non-allowable costs; (4) failure to make prompt payments to subcontractors in the ti e provided bythim/\gnoemant' (5) payment requests received including fees for unapproved subcontractors; and/or(6) the Consultant's default or unsatisfactory performance of services. The withholding of payment under this provision shall in no way relieve the Consultant of its obligation to continue to perform its services under this Agreement. 4. DISALLOWANCE OF COSTS 4.1. Notwithstanding any other clause of this Agreement,the Owner may at any time issue to the Consultant a written notice of Intent to disallow specified costs incurred or planned for incurrence under this Agreement that have been determined not to be allowable under the contract terms. 4.2. Failure to issue a notice under this Section shall not affect the Owner's rights to take exception to incurred costs. 4,3. If a subsequent audit reveals that: (1)items not properly reimbursable have, in fact, been reimbursed as direct costs; or(2)that the Indirect Cos Rate contains items not properly reimbursable under the FAR;then, in the case of indirect costs, the Indirect Cost Rate shall be amended retroactively to reflect the actual allowable indirect costs 7 incurred, and, in the case of both direct and indirect costs the Owner may offset,or the Consultant shall repay to Owner, any overpayment. 5. RECORDS &AUDITS 5.1 Records includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form. 5.2 Examination. The Consultant shall maintain, and the Owner, AHTD. FHWA, and their authorized representatives shall have the right to examine and audit all records and other evidence sufficient to reflect properly all costs(direct and indirect)claimed to have been incurred or anticipated to be incurred in performance of this Agreement. This right of examination shall also include examination and audit of any records considered, relied upon, or relating to the determination of the Indirect Cost Rate or any certification thereof, induding any CPA audit relied upon to establish the rate. This right of examination shall also include inspection at all reasonable times of the Consultant's offices and facilities, or parts of them, engaged in performing the Agreement. 5.3 Supporting Data. If the Consultant has been required to submit data in connection with any action relating to this Agreement, including the negotiation of or pre-negotiation audit of the Indirect Cost Rabm, the negotiation of the Fee, request for cost reimbursement, request fo ent, request for an adjustment, or assertion of a claim,the Owner, AHTD, FHVVA, or their authorized representatives, in order to evaluate the accuracy, completeness, and accuracy of the data, shall have the right to examine and audit all of the Consultant's records, including computations and projections, related to- • The determination or certification of the Indirect Cost Rate, including any independent CPA audit or certification thereof; • Any proposal for the Agreement, subcontract, or modification; • Discussions conducted on the (s), including those related to • Fees or allowable costs under the Agreement, subcontract, or modification; • Performance of the Agreement, subcontract or modification; or, • The amount and basis of any claim or 5.4 Audit. The Owner, AHTD, FHWA,or their authorized representatives, shall have access to and the right to examine any of the Consultant's records involving transactions related to this Agreement or a subcontract hereunder. 5.5 Reports. If the Consultant is required to furnish cost,funding, or performance reports, the Owner, AHTD, FHWA, or their authorized representatives shall have the right to examine and audit the supporting records and materials, for the purpose of evaluating (1)the effectiveness of the Consultant's policies and procedures to produce data compatible with the objectives of these reports and (2)the data reported. 5.6 Availability. The Consultant shall retain and make available at its office at all reasonable times the records, materials, and other evidence described in this Section and Section 28, Disputes and Claims,for examination,audit, or reproduction, until five , . ' 11. ACCESS TO PROPERTY 11.1. The Consultant's services to the Owner may require entry upon private property. The Owner will present or mail to private landowners a letter of introduction and explanation1 describing the work, which shall be drafted by the Consultant. The Consultant will make reasonable attempts to notify resident landowners who are obvious and present when the Consultant is in the field. The Consultant is not expected to provide detailed contact with individual landowners. The Consultant is not expected to obtain entry by means other than the consent of the landowner. If the Consultant is denied entry to private property by the landowner, the Consultant will not enter the property. If denied entry to the property, the Consultant shall notify the Owner and advise the Owner of an alternate evaluation method if one is feasible. The Owner shall decide on the course of action to obtain access to the property. 12. DELIVERABLES 12.1. Deliverables shall be provided by the Consultant as per the requirements and listed products for the Work Tasks in the FY2014 UPWP and Subsequent approved UPWP's requirements'Work Tasks and End Products. 13. SUBCONTRACTING N/A 13.1. Unless expressly disclosed in Appendix B, the Consultant may not subcontract any of the services to be provided herein without the express written approval of the Owner. All subcontractors, including those listed in Appendix B, shall be bound by the terms of this Agreement. All subcontractors shall be subject to all contractual and legal restrictions concerning payment and determination of allowable costs, and subject to all disclosure and audit provisions contained herein and in any applicable federal or state law. 13.2. Unless the consent or approval specifically provides otherwise, neither consent by the Owner to any subcontract nor approval of the Consultant's purchasing system shall constitute a determination (1)of the acceptability of any subcontract terms or conditions, (2) of the acceptability of any subcontract price or of anyamount paid under any subcontract, or(3)to relieve the Consultant of any responsibility, obligation, or duty under this Agreement. 13.3. No subcontrac placed under this Agreement shall provid for nd on a cost- p|us-e-parcentage-of'cus basis, and any fee payable under cost-reimbursement subcontracts shall not exceed the fee limitations of the FAR. 13.4. Furthermore, notwithstanding any other provision within hi reimbursement or payment for any markup of the cost of any subcontract shall be considered by the Owner without the express written agreement of the Owner. 13.5. Prompt Payment. The Consultant shall pay subcontractors for satisfactory performance of their subcontracts within 30 days of receipt of each payment by the Owner to the Consultant. Any retainage payments held by the Consultant must be returned to the subcontractor within 30 days after the subcontractor's work is completed. Failure to comply with this provision shall be considered a Default by the Consultant. If the Consultant fails to comply with this provision, in addition to any other rights or remedies provided under this Agreement, the Owner, at its sole option and discretion, may: • make payment directly to the subcontractor and offset such payments, along with any administrative costs incurred by the Owner, against reimbursements or payments otherwise due the Consultant; 11 • • notify any sureties; and/or, • withhold any or all reimb rts or payments ctherwise due to the Consultant until the Consultant ensures that the subcontractors have been and will be promptly paid for work performed. 13.O� The Consultant shall inmo�a clause containing all the terms of this GeoUon in all subeontracts under this Agreement. 14. RESPONSIBILITY OF THE CONSULTANT 14.1. Notwithstanding any review, approval, acceptance, or payment by the Owner the Consultant shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by the Consultant under this Agreement. The Consultant shall,without additional compensation,correct or revise any errors or deficiencies in its designs, drawings, specifications, and ot er services. 14.2. The Consultant shall demonstrate to the Owner the presence and implementation of quality assurance in the performance of the Consultant's work. The Consultant shall identify Individual(s) responsible, as well as methods used to determine the completeness and accuracy of drawings,specifications, and cost estimates. 14.3. The Consultant further agrees that in its performance of work under this Agreement, it shall adhere to the requirement in the Design Standards of the AHTD and FI-IWA, which shall be incorporated herein by reference. 14.4. The Owner shall hav the ri htotanydmaandinh000(edimorehonbooubnnitfor review all or any portion of the Consultant's work to consulting engineers engaged by the Owner for that purpose. The Consultant shall fully cooperate with any such review. 14.5. The Consultant and any subcontracto shall employ cualified and competent personnel to perform the work under this Agreement. 14.6. Neither the Owner's review approval,or acceptance of, nor payment for, the services required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement,or of any cause of action arising out of the performance of this Agreement. The Consultant shall be and remain liable to the Owner for all damages to the Owner caused by the Consultant's negligent performance of any of the services furnished under this Agreement. 14.7. The rights and remedies of the Owner provided under this Agreement are in addition to any other rights and remedies provided by law 14.8. If the Consultant is comprised of more than one legal entity, each such entity shall be jointly and severally liable hereunder. 15. WARRANTY OF SERVICES 15.1. Definitions.Acceptance, asuaed |nd�m Agreement, - representative of the Owner by which the Owner approves specific services, as partial or complete performance of the Agreement Correction, as used in this Agreement, means the elimination cfadefmoL 12 years after final payment under this Agreement,or for any longer period required by statute or by other clauses of this Agreement. In addition- 5.6.1 If this Agreement is completely or partially terminated,the records relating to the work terminated shall be retained and made available for five years after the termination; and, 5.6.2 Records relating to any claim or dispute, or to litigation or the settlement of claims arising under or relating to this Agreement shall be retained and made available until after any such claims or litigation, including appeals, are finally resolved. 5.7 The Consultant shall insert a clause containing all the terms of this Section in all subcontracts under this Agreement. 6. DESCRIPTION OF THE PROJECT 6.1 The proposed work includes planning, traffic engineering, and administrative and related services including furnishing local office and staff to conform with the FHWA/FTA Metropolitan Planning Organization(MPO)planning and related requirements for the local West Memphis MPO. Geographic Information Systems shall be maintained along with an approved MPO website for publishing required notices, plans and related MPO data including Long Range Transportation Plan (LRTP)and Transportation Improvement Program (TIP). The work shall include the maintenance of the current LRTP and TIP and approved Air Quality Conformity Report in accordance with FHWA/FTA and EPA requirements. The day to day administration and operation of the MPO services shall be provided on a continuing basis and shall Include setting up and leading all meetings of the Policy Committee,Technical Committee, Citizens Advisory Committee, subcommittees and Air Quality Interagency Committee including keeping minutes and providing all needed reports and materials. The day to day operation shall include work tasks and products in keeping with the federal mandates of MAP-21 and the Clean Air Act Amendments the West Memphis MPO Unified Planning Work Program (UPWP),for FY2014. The attached UPWP, Appendix B, spells out the Study Director's and Staff's responsibilities as well as the City of West Memphis, assisting agencies that will be cooperating with the Consultant on each task. Products will be,Consultant's responsibility. 6.2 Due to the nature of the work including the need for consistency for Long Range Planning and TIP development, Consultant's services will be provided on a continuing basis to FY 2017 with this years Contract based upon the approved Fiscal Year 2014 Unified Planning Work Program and subsequent UPWP requirements as approved by all parties for Fiscal Years 2015 to 2017. 6.3 The Consultant's yearly contract will be on an hourly basis with a cost not to exceed. Each Consultant Staff's hourly rate shall be included in the Contract along with the approved, yearly audited overhead rate per Federal guidelines and approved yearly fixed fee. 7. INFORMATION AND TITLE I SERVICES TO BE PROVIDED BY CONSULTANT 7.1 Consultant shall provide all the services and deliverables or products referred to in above Section 6 as required by the approved yearly Unified.Planning Work Program, including. 9 7.1.1 Scope of Services. The consultant shall do, perform, and carry out in a satisfactory and proper manner, as determined by the Owner, the services necessary to accomplish the Tasks of the FY 2014 Unified Planning Work Program as described in the attached summary,Appendix B,(subject to FHWA final approval)which is a part of this contract. Subsequent services shall be as approved and specified in FY2015 to 2017 Unified Planning Work Programs 7.2.1 Area Covered. The Consultant shall perform all the necessary services provided under this contract and shall relate to the geographical area as set forth in the approved Study Area. Said planning activities shall be addressed to the transportation requirements of that portion of the area expected to be urbanized within the minimum twenty year target period and include the county wide area relating to air quality as required. 8. SERVICES TO BE PROVIDED BY THE OWNER 8.1 Owner will provide oversight of the Consultant's work and will review all monthly invoices and requests for reimbursement prepared by the Consultant and signed by Study Director and submit to AHTD for the qualified reimbursement portion and submit invoices prepared by Consultant to other involved agencies for their share of match. The West Memphis Planning and Development Director will be the City's Coordinator for this Contract. 8.2 Make prompt payment for Consultant for monthly invoices 8.3 Provide for required MPO Account Audits and submit for MPO's share of audit. 8.4 Will review Contractors performance and progress for fulfilling MPO requirements and provide feedback as needed. The West Memphis Planning and Development Director will be the Owner's Coordinator for this Contract. 8.5 Will request by Work Order any special studies or related work not included in existing UPWP Work Tasks. 9. COORDINATION WITH OWNER 9.1. Throughout the Project, the Consultant shall hold regular conferences in including required MPO Meetings at City Hall,West Memphis,Arkansas or such other location as designated by the Owner,with representatives of the Owner, the AHTD, and the FHWA so that as the Project progresses, the Consultant shall have full benefit of the Owner's knowledge of existing needs and facilities and be consistent with the Owner's current policies and practices. The extent and character of the work to be. done by the Consultant shall be subject to the general oversight and approval of the Owner. 10. OFFICE LOCATION FOR REVIEW OF WORK 10.1.. Review of the work as it progresses and all files and documents produced under this Agreement may be made by representatives of the Owner,the AHTD, and the FHWA at the project office of the Consultant located at 796 West Broadway,West Memphis, Arkansas. 10 ' 15.2. Notwithstanding inspection and acceptance by the Owne or any provision concerning the conclusiveness thereof the Consultant warrants that all services performed and work product under this Agreement will, at the time of acceptance, be free from defects in workmanship and conform to the requirements of this Agreement. 15.3, If the Consultant is required to correct or re-perform, it shall be at no cost to the Owner, and any services corrected or re-performed by the Consultant shall be subject to this Section to the same extent as work initially performed. If the Consultant fails or refuses to correct or re-perform, the Owner may, by contract or otherwise, correct or replace with similar services and charge to the Consultant the cost occasioned to the Owner thereby, or make an equitable adjustment in the Contract Price. 15.4. If the Owner does not require correction or re-performance, the Owner shall make an equitable adjustment in the Contract Price. 15.5. Nothing within this Section shall constitute a waiver or exclusion of any other right or remedy that the Owner may possess at law or under this Agreement. 16. TERM, COMMENCEMENT, AND COMPLETION 16.1. This Agreement shall commence on the effective approved UPWP Fiscal Year date set forth above and remain in effect until the completion of the Consultant's Scope of Semimao, as defined herein,to be completed within the period of the UPWP, unless extended or terminated by the Owner in accordance with this Agreement, 16.2. The Consultant shall begin work under the terms of this Agreement within ten (10) days of receiving written notice to proceed. [If services are to be performed in subsequent phases, then each phase shall be commenced upon the Owner's approval of the previous phase. The Consultant shall not be entitled to any compensation or reimbursement for services performed in a phase unless and until it has received approval from the Owner to proceed with such services.] 16.3. It is further agreed that time is of the essence in performance of this Agreement. The Consultant shall complete the work, or each phase, as scheduled, and the Owner shall provide any required approval of the work or phase meeting the requirements contained herein in a reasonable and timely manner. The Project shall be completed as follows: July 1, 2013 to June 30, 2014 for current UPWP, and subsequent UPWP fiscal years to 2017 as approved by the City. 17. TERMINATION 17.1. The Owner may terminate this Agreement in whole or,from time to time, in part,for the Owner's convenience or because of the Default of the Consultant. 17.2. The Owner shall terminate this Agreement by delivering to the Consultant written notice of the termination. 17.3. Upon receipt of the notice,the Consultant shall: Immediately discontinue all services affected(unless the notice directs otherwise). • Deliver to the Own all d drawings, specifications, estimates, summaries, and other information and materials accumulated in performing this Agreement, whether completed or in process. 13 . , • Terminate all subcontracts to the extent they relate to the work terminated. • In the sole discretion and option of the Owner and if and only if requested todo so, subcontracts- hann|natad. (nvhichoametheOvxneraha| havethohQhttoeattloony claim or dispute arising out of those subcontracts without waiver of any right or claim the Owner may possess against the Consultant. • With a rovsdorroUfcatonbytheOwnmr' oe�aaUuut�end|ng|iobi|�eaah�ngfnom the termination of subcontracts, the cost qf which would bw allowable |n whole or |n part1 under this Agreement. • Complete performance of any work not terminated. • Take any action that may be necessary, or that the Owner may direct,for the protection and preservation of the property related to this Agreement which is in the possession of the Consultant and in which the Owner has or may acquire an interest. 17.4. If the termination is for the convenience of the Owner the Owne shall make an equitable a Ceiling Prices and Funding Limitations provisions, but shm0m&om/no anticipated fee or profit on unperformed services. 17.5. If the termination is for the Consultant's Default,the Owner may complete the work by contra or otherwise and the Consultant shall be liable for any reasonable and necessary additional cost incurred by the Owner to the extent caused by Consultant's default. 17'6. Disputes and claims arising from termination of thi Agreement shall be governed by Section 28, Claims and Disputes(48 CFR 31.205-42(e)(2)). 171. The rights and remedies of the Owner provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement, and shall not constitute a waiver of any other such right or remedy. 18. STOP WORK ORDERS 18.1. The Owner may, at any time, by written order to the Consultant require the Consultant to stop all, or any part, of the work called for by this Agreement for 'od of up to 90 days after the order is delivered to the Consultant, and for any further period to which the parties may agree. Upon receipt of the order, the Consultant shall mmediately comply with its terms and take a reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a sto work order is delivered to the Consultant, or within any extension of that period bovhiohthepartieeohm|\ hovmogremd. the Owner shall either- 18.1.1. Conoe the stop work order or 18.1.2. Terminate the work pursuant to Section 17, Termination. 18.2. If a stop work order issued under this Section is canceled or the period of the order or any extension thereof expires the Consultant shall resume work. The Owner shall 14 make an equitable adjustment in the delivery schedule or Contract Price, or both, and the Agreement shall be modified in writing accordingly, if- * The stop work order was not issued because of Consultant's Default in its performance of its obligations under any part of this Agreement; and, • The stop work order results in an increase in the time required for, or in the Consultant's cost properly allocable to, the performance of any part of this Agreement; and, • The Consultant provides Notice of Potential Claim pursuant to Section 28, Disputes and Claims. 19. CHANGES 19.1. The Owner may at any time, by written order, and without notice to the suretie , if any, make changes within the general scope of this Agreement, ino|udingbutnmt|innited to: (1)drawings, designs, or specifications; (2)time of performance(i.e., hours of the day, days of the week, etc.);and (3) places of inspection, delivery, or aoceptance. 19.2. If any such change causes an increase or decrease in the cos of, or the time required for, performance of any part ofthewmrkundarth|oAQreemwnt.whetherornot changed by the order, the Owner shall make an equitable adjustment in the(1) estimated cost, delivery or completion schedule,or both; (2)amount of any ee; and (3) other affected terms. 19.3. All claims and disputes shall be governed by the Section 28, Claims and Disputes. As provided in Section 28, the Consultant must provide written notice of its intention to make a claim for additional compensation before beginning the work on which the claim is based. If such notice is not given, the Consultant hereby agrees to waive any daim for such additional compensation. 19.4. Failure to agree to any adjustment shall be a dispute under Section 28, Disputes and Claims. However, nothing in this Section or any other provision of this Agreement shall excuse the Consultant from proceeding with the Agreement as changed. 20. OWNERSHIP OF DOCUMENTS & DATA 20.1. All project documents and dota, regardless of form and including but not limited to original drawings, dishwof{ADOdrawings. estimates,files, field notes, and data, shall be the of the Owner. documents and data to the Owner upon the Owner's request. The Consultant may retain reproduced copies of drawings and other documents. In the event that any patent rights or copyrights are created in any of the documenbo, data nompi|ationo, or any other work product, the Owner shall have an irrevocable license to use such documents, or data compilations, or work product. 21. PATENT AND COPYRIGHT INFRINGEMENT 21.1. The Consultant shall report to the Owner promptly and in reasonable written detail, each notice or claim of patent Or copyright infringement based on the performance of this Agreement of which the Consultant has knowledge. 15 mmmmemommor • 21.2. In the event of any claim or suit against the Owner on account of any alleged patent or copyright infringement arising out of the performance of thi ent or out of the use of any supplies furnished or work or services performed under this Agreement,the Consultant shall furnish to the Owner,when requested by the Owner, all evidence and information in possession of the Consultant pertaining to such suit or claim. Such evidence and information shall be furnished at the expense of the Consultant. 21.3. The Consultant agrees to include, and require inclusion of, the provisions of this Section in all subcontracts at any tier for supplies or services. 21.4. The Consultant shall indemnify the Owner and its officers, agents, and employees against liability, including costs and attorneys'fees,for infringement of any United States patent or copyright arising from the manufacture or delivery of supplies, the performance of services, or the conebuct|on, alteration, modification, or repair of real property under this Agreement, or out of the use or disposal by or for the account of the Owner of such supplies or construction work. 21.5. This indemnity shall not a | unless the Consultant shall have been informed within ten (10)business days fcl|ovxngthe Owner's receipt of legal noUneof any suit aUeging such infringement ondmha|) havwbeengivenauchopportunityaoimafhondedby applicable laws, rules, or regulations to participate in its defense. Further,this indemnity shall not apply to(1)an infringement resulting from compliance with specific written instructions of the Owner directing a change in the supplies to be delivered or in the materials or equipment to be used, or directing a manner of performance of the Agreement not normally used by the Consultant, (2) an infringement resulting from addition to or change in supplies or components furnished or construction work performed that was made subsequent to delivery or performance, or(3) a claimed infringement that is unreasonably settled without the consent of the Consultant, unless required by final decree of a court of competent jurisdiction. 22. BANKRUPTCY 22.1. In the event the Consultant enters into proceedings relating to bankruptcy, whether voluntary or involuntary,the Consultant agrees to furnish, by certified mail,written notice of the bankruptcy to the Owner. This notIce shall be furnished within fIve days of the initiation of the proceedings relating to bankruptcy filing. This notice shall include the date on which the bankru petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of AHTD job numbers and FAP numbers for all contracts with Owner against which final payment has not been made.This obligation remains in effect until final payment under this Agreement. 23. FUNDING LIMITATIONS 23.1. The Owner's obligations under this Agreement are contingent upon the availability of appropriated funds from which payments under the terms of this Agreement can be made in this and each subsequent fiscal year for the duration of the Agreement. No legal liability on the part of the Owner of any kind whatsoever under this Agreement shall arise until funds are made available to the Owner for performance of this Agreement, including those to be appropriated and provided by the State of Arkansas and those to be provided by the United States. 16 24. SUCCESSORS AND ASSIGNS 24.1. This Agreement shall be binding upon the parties and their successors and assigns, and except as expressly set forth herein, neither the Owner nor the Consultant may assign, delegate, or transfer any benefit or obligation under this Agreement without the express written consent of the other party. Nothing herein shall be construed as a waiver of any immunity or as creating any personal liability on the part of any officer or agent of the Owner or any other governmental entity either made a party to,or having any interest in, this Agreement. 25. INDEMNITY AND RESPONSIBILITY FOR CLAIMS AND LIABILITY 25.1. Indemnity. The Consultant shall hold harmless and indemnify the Owner and the AHTD,their officers, employees, and agents,from and for all claims and liabilities stemming from any wrongful (whether negligent, reckless, or intentional)acts or omissions on the part of the Consultant and its subcontractors, and their agents and employees. 25.2. No Personal Liability. No director, officer, manager, employee, agent,assign, or representative of the Owner or the AHTD shall be liable to the Consultant in a personal or individual capacity under any term of this Agreement, because of any breach thereof, or for any act or omission in its execution or performance. 25.3. Independent Consultant Relationship. The parties intend that the Consultant shall be an independent Consultant of the Owner and that the Consultant shall be liable for any act or omission of the Consultant or its agents, employees, or subcontractors arising under or occurring during the performance of this Agreement. No act or direction of the Owner shall be deemed to be an exercise of supervision or control of the Consultant's performance. 26. INSURANCE 26.1. Professional Liability Insurance Coverage. The Consultant shall maintain at all times during the performance of services under this Agreement professional liability insurance coverage for errors, omissions, and negligent acts arising out of the performance of this Agreement in an amount per claim of not less than five(5)times the original Contract Ceiling Price or$1,000,000, whichever is less. Such insurance shall extend to the Consultant and to its legal representatives in the event of death, dissolution, or bankruptcy, and shall cover the errors, omissions, or negligent acts of the Consultant's subcontractors, agents, and employees. Such insurance shall extend to any errors, omissions, and negligent acts in the performance of services under this Agreement committed by the Consultant or alleged to have been committed by the Consultant or any person for whom the Consultant is legally responsible. 26.2. Deductible. The Consultant may maintain a professional liability insurance policy with a deductible clause in an amount approved by the Owner if, in the judgment and opinion of the Owner, the Consultant's financial resources are sufficient to adequately cover possible liability in the amount of the deductible. The Consultant shall submit promptly to the Owner, upon request as often as quarterly, detailed financial statements and any other information requested by the Owner to reasonably determine whether or not the Consultant's financial resources are sufficient to adequately cover possible liability in the amount of the deductible. 17 26.3. Worker's Compensation Insurance. The Consultant shall at all times during the Term of this Agreement maintain Worker's Compensation and Employers Liability Insurance as required under Arkansas law. 26.4. General Liability Insurance. The Consultant shall at all times during the term of this Agreement maintain comprehensive general liability insurance coverage for bodily injury and property damage in the combined single limit of$1,000,000, and comprehensive automobile liability insurance coverage for bodily injury and property damage in the combined single limit of$1,000,000, which shall cover all owned, hired, and non-owned vehicles. The Consultant's insurance coverage shall also cover restoration of plans, drawings,field notes, and other documents in the event of their loss or destruction while in the custody of the Consultant. 26.5. Insurance Policies and Certificates. The Consultant shall provide the Owner upon request copies of its insurance policies and evidence satisfactory to the Owner concerning the effectiveness and the specific terms of the insurance. Prior to the execution of this Agreement, the Consultant shall furnish to the Owner certificates of insurance reflecting policies in force,and it shall also provide certificates evidencing all renewals of any expiring insurance policy required hereunder within thirty(30)days of the expiration thereof. The Consultant's failure to provide and continue in force and effect any insurance required under this Article shall be deemed a Default for which Owner, in its sole discretion, may terminate this Agreement immediately or on such other terms as it sees fit. 26.6. Additional Insurance Requirements. All insurance maintained by the Consultant pursuant to this Section shall be written by insurance companies licensed to do business in Arkansas, in form and substance satisfactory to the Owner, and shall provide that the insurance will not be subject to cancellation,termination, or change during its term except upon thirty(30)days prior written notice to the Owner. 26.7. Duration of Insurance Obligations. The Consultant shall maintain its professional insurance coverage required under this Agreement in force and effect for a period not less than five years after the final acceptance of the project or the completion of the Consultant's services under this Agreement,whichever comes later. Comprehensive General Liability Insurance Coverage required under this Agreement shall be in full force and effect until the final acceptance or the completion of the Consultant's services, whichever comes later. All other insurance shall be maintained in full force and effect until final acceptance of the project or completion of the Consultant's services, whichever comes first. 26.8. Consultant's Insurance Primary. All insurance policies maintained by the Consultant pursuant to this Agreement shall provide that the consultant's insurance shall be primary and the Owner's own insurance shall be non-contributing. 26.9. Additional Insured. All liability insurance policies, except the professional liability policy, maintained by the Consultant pursuant to this Agreement shall be endorsed to include the Owner, its officers, directors, managers, employees, agents, assigns and representatives, individually and collectively, as additional insured, and all property damage insurance shall be endorsed with a waiver of subrogation by the insurer as to the Owner. 27. DISPUTES AND CLAIMS 27.1. Notice of Potential Claim. Whenever a Consultant deems that any additional compensation is due, the Consultant shall notify the Owner in writing of its intention to 18 make a claim for additional compensation("Notice of Potential Claim")before beginning the work that gives rise to the claim. 27.2. Time &Manner for Submitting Claim. All disputes and claims shall first be submitted in writing to the Owner within 45 calendar days after the completion or termination date. The Consultant hereby agrees that the failure to submit the dispute or claim to the Owner prior to 45 calendar days after the completion or termination date shall constitute a waiver of the dispute or claim. 27.3. Form. All disputes and claims must be submitted in writing and in sufficient detail to permit the Owner to determine the basis for entitlement and the actual allowable costs incurred. Each claim must contain: • A detailed factual statement of the claim providing all necessary dates, locations, and items of work affected by the claim; • The date the actions resulting in the claim occurred or conditions resulting in the claim became evident; • A copy of the"Notice of Potential Claim"; • The name,title, and activity of each Owner's employee knowledgeable about facts that gave rise to such claim; • The name, title, and activity of each Consultant, Subcontractor, or employee knowledgeable about the facts that gave rise to the claim; • The specific provisions of the Agreement that support the claim and a statement why such provisions support the claim; • The identification and substance of any relevant documents, things, or oral communications related to the claim; • A statement whether the claim is based on provisions of the Agreement or an alleged breach of the Agreement; • If an extension of time is sought, the specific number of days sought and the basis for the extension; • The amount of additional compensation sought and a specific cost breakdown of the amount claimed; and, • Any other information or documents that are relevant to the claim. 27.4. Decision and Appeal. The decision of the Owner shall be final and conclusive. 27.5. Continued Performance. Pending final resolution of a dispute or claim, unless the Owner has terminated this Agreement pursuant to Section 18 or issued a stop work order pursuant to Section 19,the Consultant shall proceed diligently with the performance of this Agreement in accordance with the Owner's decisions. 27.6. The rights and remedies of the Owner provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement, and shall not constitute a waiver of any other such right or remedy. If the Owner decides the facts justify the action,the Owner may, at its sole option and discretion, receive and act upon 19 a proposal, dispute, or claim submitted at any time before final payment under this Agreement. 28. COVENANT AGAINST CONTINGENCY FEES 28.1. The Consultant warrants that no person or agency has been employed or retained to solicit or obtain this Agreement upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the Owner shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Contract Price or consideration, or otherwise recover, the full amount of the contingent fee. 28.2. Bona fide agency, as used in this Section,means an established commercial or selling agency, maintained by the Consultant for the purpose of securing business,that neither exerts nor proposes to exert improper influence to solicit or obtain government contracts nor holds itself out as being able to obtain any government contract or contracts through improper influence. 28.3. Bona fide employee, as used in this Section, means a person, employed by the Consultant and subject to the Consultant's supervision and control as to time, place, and manner of performance,who neither exerts nor proposes to exert improper influence to solicit or obtain government contracts nor holds out as being able to obtain any government contract or contracts through improper influence. 28.4. Contingent fee,as used in this Section,means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a government contract. 28.5. Improper influence, as used in this Section, means any influence that induces or tends to induce a government employee or officer to give consideration or to act regarding a government contract on any basis other than the merits of the matter. 29. TITLE VI ASSURANCES (NONDISCRIMINATION) During the performance of this Agreement,the Consultant,for itself, successors, and assigns, certifies and agrees as follows: 29.1. Compliance with Regulations. The Consultant shall comply with the Regulations relative to Title VI (Nondiscrimination in Federally-assisted programs of the Department of Transportation and its operating elements, especially Title 49, Code of Federal Regulations, Part 21 and 23 Code of Federal Regulations, as amended, and hereinafter referred to as the Regulations). These regulations are herein incorporated by reference and made a part of this Agreement. Title VI provides that the recipients of Federal financial assistance will maintain and implement a policy of nondiscrimination in which no person shall, on the basis of race, color, national origin, sex, age, or disability, be exduded from participation in, denied the benefits of, or subject to discrimination under any program or activity by recipients of Federal financial assistance or their assignees and successors in interest. 29.2. Nondiscrimination. The Consultant,with regard to the work performed by it during the term of this Agreement, shall not discriminate on the basis of race, color, national origin,sex, age, or disability in the selection and retention of subcontractors, including procurement of material and leases of equipment. The Consultant shall not participate either directly or indirectly in any discrimination prohibited by Section 21.5 of the 20 Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the USDOT Regulations. 29.3. Solicitations for Subcontracts, Including Procurements of Material&Equipment. In all solicitations, either by competitive bidding or negotiation, made by the Consultant for work to be performed under a subcontract, including procurement of materials and leases of equipment, each potential subcontractor or supplier shall be notified by the Consultant of the Consultant's obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, national origin, sex, age, or disability. 29.4. Information and Reports. The Consultant shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, and accounts, other sources of information, and its facilities by the Owner, the AHTD, or the USDOT and its Affiliated Modes to be pertinent to ascertain compliance with such regulations and directives. Where any information required of the Consultant is in the exclusive possession of another who fails or refuses to furnish this information, the Consultant shall so certify to the Owner, the AHTD or the USDOT and its Affiliated Modes, as appropriate, and shall set forth the efforts made by the Consultant to obtain the records or information. 29.5. Sanctions for Noncompliance. In the event of the Consultant's noncompliance with the nondiscrimination provisions of this Agreement, the Owner shall impose such contract sanctions as it,the AHTD, or the USDOT and its Affiliated Modes may determine to be appropriate, including but not limited to,withholding of payments to the Consultant under the Agreement until the Consultant complies with the provisions and cancellation,termination,or suspension of the Agreement, in whole or in part. 29.6. Incorporation of Provisions. The Consultant shall include the terms and conditions of this section in every subcontract including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Consultant shall take such action with respect to any subcontract or procurement as the Owner,the AHTD,or the USDOT and its Affiliated Modes may direct as a means of enforcing these terms and conditions, including sanctions for noncompliance;provided, however that, in the event the Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of any direction, the Consultant may request the Owner or the AHTD to enter into the litigation to protect the interests of the State, and, litigation to protect the interest of the United States. 31 DBE CLAUSE 31.1 The Consultant or subcontractor shall not discriminate on the basis of race, color, national origin, sex, age, religion, or disability in the performance of this Agreement. The Consultant shall comply with the applicable requirements of 49 C.F.R. Part 26 and perform any actions necessary to maintain compliance in the award and administration of DOT-assisted contracts. Failure by the Consultant to comply with or perform these requirements is a material breach of this Agreement,which may result in the cancellation,termination, or suspension of this Agreement in whole or in part,or such other remedy that the Owner may determine appropriate. 31.2 The Consultant shall insert a clause containing all the terms of this Section in all subcontracts under this Agreement. 21 32 TITLE II OF THE AMERICANS WITH DISABILITIES ACT(NONDISCRIMINATION) 32.1 The Consultant will comply with the provisions of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act,Title VI of the Civil Rights Act of 1964, FHWA Federal Aid Project Guidance, and any other Federal, State, and/or local laws, rules and/or regulations. 32.2 The Consultant, during the term of this Agreement, shall not discriminate on the basis of race, color, sex, national origin, age, religion or disability, in admission or access to and treatment in programs and activities associated with this Agreement, or in the selection and retention of subcontractors, including procurement of material and leases of equipment. The Consultant shall not participate either directly or indirectly in any discrimination prohibited by the Regulations, including employment practices. 32.3 In accordance with Section 504 regulations 49 C.F.R. Part 27.15,the Owner's Notice of Nondiscrimination is required in any bulletins,announcements, handbooks, pamphlets, brochures, and any other publications associated with this Agreement that are made available to the public, program participants, applicants or employees. 33. CERTIFICATION REGARDING DEBARMENT,SUSPENSION, PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY MATTERS 33.1. The Consultant certifies,to the best of its knowledge and belief, that- 33.1.1. The Consultant and any of its Principals- 33.1.1.1. Are not presently debarred, suspended, proposed for debarment, or declared Ineligible for the award of contracts by any federal or state agency; 33.1.1.2. Have not,within a 3-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining,attempting to obtain, or performing a public(federal, state, or local)contract or subcontract;violation of federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement,theft,forgery, bribery,falsification or destruction of records, making false statements, or receiving stolen property; 33.1.1.3. Are not presently indicted for, or otherwise criminally or civilly charged by a governmental entity with,commission of any of the offenses enumerated in Subsection 33.1.1.2;and, 33.1.1.4. The Consultant has not within a 3-year period preceding this offer, had one or more contracts terminated for default by any federal or state agency. 33.2. Principals,for the purposes of this certification, means officers; directors; Owners; partners; and, persons having primary management or supervisory responsibilities within a business entity(e.g., general manager; plant manager; head of a subsidiary, division, or business segment, and similar positions). This certification concerns a matter within the jurisdiction of an agency of the United States and the making of a false,fictitious, or fraudulent certification may render the maker subject to prosecution under Section 1001, Title 18, United States Code, as well as any other applicable federal and state laws. 22 33.3. The Consultant shall provide immediate written notice to the Owner if, at any time prior to contract award, the Consultant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 33.4. The certification in Subsection 33.1 is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Consultant knowingly rendered an erroneous certification, the Owner may terminate the contract resulting from this solicitation for default in addition to any other remedies available to the Owner. 34. MISCELLANEOUS 34.1. General Compliance with Laws. The Consultant shall comply with all Federal, State, and local laws, regulations, and ordinances applicable to the work, including but not limited to,the Americans with Disabilities Act and Occupational Safety and Health Act as amended. 34.2. Registered Professional Engineer's Endorsement. All plans, specifications, estimates, and engineering data provided by the Consultant shall be endorsed and recommended by an authorized representative of the Consultant,who shall be a registered Professional Engineer licensed in the State of Arkansas. 34.3. Choice of Law. This Agreement shall be governed by the laws of the State of Arkansas without consideration of its choice of law provisions. 34.4. Choice of Forum. The Consultant agrees that any cause of action stemming from or related to this Agreement, including but not limited to disputes or claims arising under this Agreement,for acts or omissions in the performance, suspension, or termination of this Agreement, whether sounding in contract or tort, equity or law, may only be brought in the appropriate forum within State of Arkansas. 34.5. No Waiver of Immunity. The Owner expressly does not waive any defense of immunity that it may possess under either federal or state law, and no provision in this Agreement shall be construed to constitute such a waiver in whole or in part. 34.6. Conflicts Between Laws, Regulations, and Provisions. In the event of conflicting provisions of law, the interpretation shall be governed by the following in this order,from most controlling to least: Federal law and regulations, State law and regulations, Department and FHWA Design Standards, and this Agreement. 34.7. Severability. If any term or condition of this Agreement shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, all remaining terms of this Agreement shall remain valid and enforceable unless one or both of the parties would be materially prejudiced. 34.8. No-Waiver. The failure of the Owner to strictly enforce any term of this Agreement shall not be construed as a waiver of the Owner's right to require the Consultant's subsequent performance of the same or similar obligation or duty. 34.9. Modification and Merger. This written Agreement and any provisions incorporated by reference reflect the entire agreement of the parties and may be modified only by the express written agreement of both parties. 23 35. CERTIFICATION OF AUTHORIZED REPRESENTATIVES 35.1. This Agreement and the certifications contained herein or attached hereto constitute the whole Agreement of the parties, and each party certifies that this Agreement and any attached certification have been executed by their duly authorized representatives. 36. NOTICE 36.1. All notices, approvals, requests, consents, or other communications required or permitted under this Agreement shall be addressed to either the Owner's Representative or the Consultant's Representative, and mailed or hand-delivered to: 36.1.1. To the Owner's Representative: Paul Luker, Planning and Development City of West Memphis 205 South Redding West Memphis. AR 72301 36.1.2. To the Consultant: Eddie E. Brawlev, RE Brawlev Consultina Engineers. Inc. 796 West Broadway,West Memphis,AR 72301 IN WITNESS WHEREOF,the parties execute this Agreement, to be effective upon the date set out above. ?k ey Consg gineers, Inc. City of West Memphis 1 t BY: William H. Johnson BY: Eddie E. Brawlev. P.E. Name Name Mayor President Title Title 24 APPENDICES APPENDIX A JUSTIFICATION OF FEES AND COSTS APPENDIX B FY2014 UNIFIED PLANNING WORK PROGRAM APPENDIX C STANDARD CERTIFICATIONS APPENDIX A JUSTIFICATION OF FEES AND COSTS APPENDIX A BRAWLEY CONSULTING ENGINEERS, INC. Fees and Cost Justification Estimated Work Hours by Position Study Director Trans. Planner Office Mgr. Engineer III Field Tech I Engineer I UPWP Tasks EB BW GH GS WS RB I Administration 90 160 40 0 1 0 II Data Dev. &Maint. 10 20 6 5 0 0 III Short Range Planning 110 60 4 0 0 0 IV Long Range Planning 500 895 75 155 386 130 including Air Quality V Management Systems 170 70 2 5 378 130 VI Special Projects 5 180 0 80 0 0 Total Hours 885 1385 127 245 765 260 Rate $56.35 $28.30 $19.30 $29.45 $20.10 $21.20 Direct Labor Cost $49,869.75 $39,195.50 $2,451.10 $7,215.25 $15,376.50 $5,512.00 Indirect Costs 166.90 $83,232.61 $65,417.29 $4,090.89 $12,042.25 $25,663.38 $9,199.53 Estimated Total Direct & Indirect Cost $133,102.36 $104,612.79 $6,541.99 $19,257.50 $41,039.88 $14,711.53 Total All Personnel $319,266.05 Fixed Fee $38,233.95 Total Not to Exceed $357,500.00 *NOTE: Estimated time assigned to UPWP Tasks are based on projections as per prior years'work tasks and will vary dependent upon FHWA approved Planning Factors and each year emphases as per FHWA, AHTD and also Air Quality factors including EPA'S reclassification of Crittenden County to marginal non-attainment status. Metered/Water Tay Rates As of 01-01-2006 3/4 .1/2 1 inch. 2 inch, 4 inch, 6 inch 8 inch inch inch $6.50.00 $800.00 $1100.00 $1305.00 $1800.00 $3000.00 $3900.00 ..Non-NeteredWater Tap Fees 4 inch 6 inch 8 inch 10 inch 12 inch $500.00 $700.00 $800.00 $1000.00 $1500.00 http://www.ci.west-memphis.ar.us/water.htm 5/2/2013