Loading...
2023-20RESOLUTION 2023-20 COUNCIL MEMBER PAULSEN INTRODUCED THE FOLLOWING RESOLUTION: BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF BLAIR, NEBRASKA AS FOLLOWS: WHEREAS the City of Blair, Nebraska, has been presented with an Agreement between the City of Blair, Nebraska, and HDR Engineering for the Water Treatment Plant Polymer Evaluation project to assist the City in determining the feasibility of the implementation of a new supplemental polymer to improve settling in the Softening Basins and overall Water Treatment Plant performance during periods of high river turbidity. WHEREAS, the terms and conditions thereof are acceptable to the municipality. BE IT FURTHER RESOLVED THAT THE MAYOR AND CITY CLERK OF THE CITY OF BLAIR, NEBRASKA, are hereby authorized to execute and deliver, on behalf of the City of Blair, Nebraska, any documents that may be necessary for approval of said agreement. COUNCIL MEMBER PAULSEN MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER SCHANK. UPON ROLL CALL, COUNCIL MEMBERS FERRARI, SANDVOLD, WILLIS, WOLFF, SCHANK, PAULSEN AND HAFER VOTING "AYE" AND COUNCIL MEMBERS NONE VOTING `NAY", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND APPROVED THIS 13TH DAY OF JUNE, 2023. CITY OF BLAIR, NEBRASKA BY 54r MNDA K. R OR ATTEST: CITY CLERK 0 Rj iEBRASKA ) ) :ss: WASHINGTON COUNTY ) BRENDA WHEELER, hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and adopted at a regular meeting of the Mayor and City Council of said City held on the 13th day of June 2023. BRENDA WHEELER, CITY CLERK SHORT FORM AGREEMENT BETWEEN OWNER AND HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES THIS AGREEMENT is made as of this t - 5 day of. t� 20 , between City of Blair, Nebraska ("OWNER") a municipal corporation, with principal offices at 218 South 161b Street, Blair, Nebraska, and HDR ENGINEERING, INC., ("ENGINEER" or "CONSULTANT") for services in connection with the project known as Polymer Evaluation (`Project"); WHEREAS, OWNER desires to engage ENGINEER to provide professional engineering, consulting and related services ("Services") in connection with the Project; and WHEREAS, ENGINEER desires to render these Services as described in SECTION I, Scope of Services. NOW, THEREFORE, OWNER and ENGINEER in consideration of the mutual covenants contained herein, agree as follows: SECTION I. SCOPE OF SERVICES ENGINEER will provide Services for the Project, which consist of the Scope of Services as outlined on the attached Exhibit A. SECTION II. TERMS AND CONDITIONS OF ENGINEERING SERVICES The HDR Engineering, Inc. Terms and Conditions, which are attached hereto in Exhibit B, are incorporated into this Agreement by this reference as if fully set forth herein. SECTION III. RESPONSIBILITIES OF OWNER The OWNER shall provide the information set forth in paragraph 6 of the attached "HDR Engineering, Inc. Terms and Conditions for Professional Services." SECTION IV. COMPENSATION Compensation for ENGINEER'S services under this Agreement shall be on the basis of per diem. The contract amount not to exceed is 25,000.00 (Twenty-five thousand and 00/100 Dollars). The amount of any sales tax, excise tax, value added tax (VAT), or gross receipts tax that may be imposed on this Agreement shall be added to the ENGINEER'S compensation as Reimbursable Expenses. Compensation terms are defined as follows: Agreement for Professional Services 1 1/2020 Per Diem shall mean an hourly rate equal to Direct Labor Cost times a multiplier of three point one eight (3,18) to be paid as total compensation for each hour an employee works on the project, plus Reimbursable Expenses. Reimbursable Expense shall mean the actual expenses incurred directly or indirectly in connection with the Project for transportation travel, subconsultants, subcontractors, technology charges, telephone, telex, shipping and express, and other incurred expense. ENGINEER will add ten percent (10%) to invoices received by ENGINEER from subconsultants and subcontractors to cover administrative expenses and vicarious liability. SECTION V. PERIOD OF SERVICE Upon receipt of written authorization to proceed, ENGINEER shall perform the services within the time period(s) described in Exhibit A. Unless otherwise stated in this Agreement, the rates of compensation for ENGINEER'S services have been agreed to in anticipation of the orderly and continuous progress of the project through completion. If any specified dates for the completion of ENGINEER'S services are exceeded through no fault of the ENGINEER, the time for performance of those services shall be automatically extended for a period which may be reasonably required for their completion and all rates, measures and amounts of ENGINEER'S compensation shall be equitably adjusted. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year fust written above. "OWNER" BY: ,00 NAME; 4elinda K. Rump TITLE: Mayor ADDRESS: 218 South 26`h Street Blair, NE 68008 Agreement for Professional Services 2 1/2020 HDR ENGINEERING, INC. "ENGINEER" BY: ?'.'.4 al NAME: Matthew Tondl TITLE: Senior Vice President ADDRESS: 1917 South 67`h Street Omaha, NE 68106 Agreement for Professional Services 3 1/2020 EXHIBIT A SCOPE OF SERVICES EXHIBIT A I SCOPE OF SERVICES Water Treatment Plant Polymer Evaluation PART 1.0 - PROJECT DESCRIPTION The City of Blair Is considering the implementation of a new, supplemental polymer to improve settling In the Softening Basins and overall water treatment plant performance during perlods of high river turbidity. The Water Treatment Plant Polymer Evaluation project will Include evaluation of bench -scale test data and development of estimated capital and lifecycle costs. This Information will be used to provide the City with a recommendation of whether or not the new, supplemental polymer should be added to the treatment process at the Blair Water Treatment Plant (WTP). If incorporating the new polymer Is recommended, the project dellverables will Include an engineering report submitted to the Nebraska Department of Environment and Energy (NDEE) for regulatory approval. The report would summarize the evaluation conducted and request authorization for the City to add the proposed polymer system at the Blair WTP. PART 2.0 - SCOPE OF SERVICES TO BE PERFORMED BY ENGINEER TASK SERIES 100 - PROJECT COMPONENTS This task series establishes the approach to be employed for the analysis of the alternate polymer and overall project administration. Task 110 — Project Administration/Procedures This task includes project Initiation and coordination, project kickoff meeting, development of a project management plan, project procedures, coordination meetings, Invoicing and status reports. Task 120 — Background Data Collection The Engineer will review the available background data, Including available jar testing results from previous testing conducted at the Blair WTP, water quality data, proposed polymer data and costs, polymer feed equipment information and costs, and any additional Information that the City and Nalco may have on the relevant polymers. Task 130 — Site Visit - NOT USED Task Series 100 Deliverables: Monthly invoices and status reports. Task Series 100 Meetings: None. Task Series 100 Key Understandings: City and Nalco will provide available reference data for polymers and polymer storage and feed equipment. TASK SERIES 200 -- ENGINEERING ANALYSIS AND REPORT This task series includes the evaluation of bench scale testing results, water quality data, the development of capital and operation costs, and the preparation of an Engineering Report for NDEE review and approval. Task 210 — Identify NDEE Requirements for Engineering Report The Engineer will contact NDEE to request the information and format that the NDEE will require in the Polymer Evaluation Engineering Report to review and approve the addition of a supplemental polymer. Task 220 — Provide the City and Nalco with Criteria The Engineer will provide the City and Nalco with desired criteria for bench scale testing and water quality testing. • Bench -scale testing criteria may include: o Number of jar tests and time of year of jar tests. o Rapid mix time. o Settling time. o Parameters to measure and record. • Water quality testing criteria may Include: o Raw water total suspended solids (TSS) at the time of the jar tests. o Raw water temperature at the time of the jar tests. o Softening Basin effluent turbidity at the time of the jar tests. Task 230 — Evaluate Data The Engineer will review and evaluate data from the jar tests and water quality analyses. Task 240 — Prepare Engineering Report and Recommendations The Engineer will summarize evaluations, provide recommendations, and develop capital, operational, and life cycle costs In the Polymer Evaluation Engineering Report. The Engineer will conduct an Internal QC review of the Report and submit the draft Engineering Report to the City. The Engineering Report will cover the following topics: • Project background • Results from jar testing. • Whether Implementation of the supplemental polymer Is recommended. • Whether the supplemental polymer should be fed only during select periods of the year or full- time. • The chemical storage and feed equipment that will be required to apply the supplemental polymer. Supplemental polymer application polnt(s). • Location of supplemental polymer storage and feed equipment. • Any conceptual process equipment or piping modifications that will be required to accommodate the supplemental polymer equipment and application point. • Opinion of Probable Cost (OPC) for the capital costs associated with the supplemental polymer equipment and process equipment or piping modifications. • Operation and lifecycle costs for the supplemental polymer. • Operational parameters that the water treatment plant operators should consider monitoring following the implementation of the supplemental polymer. Task 250 — Engineering Report Review Meeting with City The Engineer will meet with City to review the Engineering Report content and recommendations and receive the City's comments on the document. The Engineer will finalize the Engineering Report to incorporate the City's comments. Task 260 — Submit Engineering Report to NDEE If Implementation of the alternate polymer is recommended, the Engineer will submit the finalized Polymer Evaluation Engineering Report to the NDEE for regulatory review and approval. Task Series 200 Deliverables: • Draft and Final Polymer Evaluation Engineering Report. Task Series 200 Meetings: • Engineering Report review meeting with Owner. Task Series 200 Key Understandings: • Up to two (2) supplemental polymers will be evaluated and compared to the existing chemical treatment process without supplemental polymer addition. it Is understood that the supplemental polymer will be applied at the Softening Basins. • Review of up to four sets of jar testing data sets are included in the Engineer's fee estimate. • Nalco and/or the City will perform and pay for costs associated with jar testing, water quality sampling, and water quality analyses. Data will be transmitted to Engineer. • Nalco will recommend polymer dosages for jar tests. • The Draft and Final Polymer Evaluation Engineering Report will be submitted in electronic PDF format. • The Engineering Report will Include the sections outlined above. Additional analyses are not Included. • Engineering Report Review Meeting will be held at the City of Blair Water Treatment Plant. • City will pay any review fees. • OPC will be developed using Microsoft Excel and will Include appropriate factors for undefined scope of work and range of accuracy based on level of project definition. • It Is understood between the parties that any estimates of the Cost of Construction provided by the Engineer are made on the basis of Information available to Engineer and on the basis of Engineer's experience and qualifications and represents its judgement as an experienced and qualified professional engineer. However, since Engineer has no control over the cost of labor, materials, equipment, or work furnished by others, or over the Constructors' methods of determining prices, or competitive bidding or market conditions, Engineer does not guarantee that the actual Cost of Construction will not vary from the estimates of Cost of Construction prepared by the Engineer. The project does not Include the preparation of plans or specifications. PROJECT SCHEDULE Milestone Milestone Date Notice to Proceed June 14 2023 Draft Engineering Report to City December 22 2023 Final Engineering Report to NDEE January 12 2024 3 EXHIBIT B TERMS AND CONDITIONS HDR Engineering, Inc. Terms and Conditions for Professional Services STANDARD OF PERFORMANCE The standard of care for all professional engineering, consulting and related services performed or furnished by ENGINEER and its employees under this Agreement will be the care and skill ordinarily used by members of ENGINEER's profession practicing under the same or similar circumstances at the same time and In the same locality. ENGINEER makes no warranties, express or Implied, under this Agreement or otherwise, in connection with ENGINEER's services. INSURANCE/INDEMNITY ENGINEER agrees to procure and maintain, at Its expense, Workers' Compensation Insurance as required by statute; Employer's Liability of $250,000; Automobile Liability Insurance of $1,000,000 combined single limit for bodily Injury and property damage covering all vehicles, Including hired vehicles, owned and non -owned vehicles; Commercial General Liability Insurance of $1,000,000 combined single limit for personal Injury and property damage; and Professional Liability Insurance of $1,000,000 per claim for protection against claims arising out of the performance of services under this Agreement caused by negligent acts, errors, or omissions for which ENGINEER Is legally liable. If flying an Unmanned Aerial System (UAS or drone), ENGINEER will procure and maintain aircraft unmanned aerial systems Insurance of $1,000,000 per occurrence. OWNER shall be made an additional Insured on Commercial General and Automobile Liability Insurance policies and certificates of Insurance will be furnished to the OWNER. ENGINEER agrees to Indemnify OWNER for third party personal Injury and property damage claims to the extent caused by ENGINEER's negligent acts, errors or omissions. However, neither Party to this Agreement shall be liable to the other Party for any special, Incidental, indirect, or consequential damages (Including but not limited to loss of use or opportunity; loss of good will; cost of substitute facilities, goods, or services; cost of capital; and/or fines or penalties), loss of profits or revenue arising out of, resulting from, or In any way rela(ed to the Project or the Agreement from any cause or causes, including but not limited to any such damages caused by the negligence, errors or omissions, strict liability or breach of contract. The employees of both parties are Intended third party beneficiaries of this waiver of consequential damages. OPINIONS OF PROBABLE COST Any opinions of probable project cost or probable construction cost provided by ENGINEER are made on the basis of information available to ENGINEER and on the basis of ENGINEER's experience and qualifications, and represents Its judgment as an experienced and qualified professional engineer. However, since ENGINEER has no control over the cost of labor, materials, equipment or services furnished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market conditions, ENGINEER does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost ENGINEER prepares. CONSTRUCTION PROCEDURES ENGINEER's observation or monitoring portions of the work performed under construction contracts shall not relieve the contractor from Its responsibility for performing work In accordance with applicable contract documents. ENGINEER shall not control or have charge of, and shall not be responsible for, construction means, methods, techniques, sequences, procedures of construction, health or safety programs or precautions connected with the work and shall not manage, supervise, control or have charge of construction. ENGINEER shall not be responsible for the acts or omissions of the contractor or other parties on the project. ENGINEER shall be entitled to review all construction contract documents and to require that no provisions extend the duties or liabilities of ENGINEER beyond those set forth In this Agreement, OWNER agrees to Include ENGINEER as an indemnified party in OWNER's construction contracts for the work, which shall protect ENGINEER to the same degree as OWNER. Further, OWNER agrees that ENGINEER shall be listed as an additional Insured under the construction contractor's liability Insurance policies. b. CONTROLLING LAW This Agreement Is to be governed by the law of the state where ENGINEER's services are performed. 6. SERVICES AND INFORMATION OWNER will provide all criteria and information pertaining to OWNER's requirements for the project, Including design objectives and constraints, space, capacity and performance requirements, flexibility and expendability, and any budgetary limitations. OWNER will also provide copies of any OWNER-fumished Standard Details, Standard Specifications, or Standard Bidding Documents which are to be Incorporated Into the project. OWNER will furnish the services of soils/geotechnical engineers or other consultants that Include reports and appropriate professional recommendations when such services are deemed necessary by ENGINEER. The OWNER agrees to bear full responsibility for the technical accuracy and content of OWNER-fumished documents and services. In performing professional engineering and related services hereunder, It Is understood by OWNER that ENGINEER is not engaged in rendering any type of legal, Insurance or accounting services, opinions or advice. Further, It Is the OWNER's sole responsibility to obtain the advice of an attorney, Insurance counselor or accountant to protect the OWNER's legal and financial Interests. To that end, the OWNER agrees that OWNER or the OWNER's representative will examine all studies, reports, sketches, drawings, specifications, proposals and other documents, opinions or advice prepared or provided by ENGINEER, and will obtain the advice of an attorney, Insurance counselor or other consultant as the OWNER deems necessary to protect the OWNER's Interests before OWNER takes action or forebears to take action based upon or relying upon the services provided by ENGINEER. 7. SUCCESSORS, ASSIGNS AND BENEFICIARIES OWNER and ENGINEER, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the covenants of this Agreement. Neither OWNER nor ENGINEER will assign, sublet, or transfer any Interest In this Agreement or claims arising therefrom without the written consent of the other. No third party beneficiaries are Intended under this Agreement. RE -USE OF DOCUMENTS All documents, Including all reports, drawings, specifications, computer software or other Items prepared or furnished by ENGINEER pursuant to this Agreement, are Instruments of service with respect to the project. ENGINEER retains ownership of all such documents. OWNER may retain copies of the documents for its Information and reference in connection with the project; however, none of the documents are intended or represented to be suitable for reuse by OWNER or others on extensions of the project or on any other project. Any reuse without written verification or adaptation by ENGINEER for the specific purpose Intended will be at OWNER's sole risk and without liability or legal exposure to ENGINEER, and OWNER will defend, Indemnify and hold harmless ENGINEER from all claims, damages, losses and expenses, including attomey's fees, (5/2023) arising or resulting therefrom. Any such verification or adaptation will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. TERMINATION OF AGREEMENT OWNER or ENGINEER may terminate the Agreement, in whole or In part, by giving seven (7) days written notice to the other party. Where the method of payment Is "lump sum," or cost reimbursement, the final Invoice will Include all services and expenses associated with the project up to the effective date of termination. An equitable adjustment shall also be made to provide for termination settlement costs ENGINEER Incurs as a result of commitments that had become firm before termination, and for a reasonable profit for services performed. 10. SEVERABILITY If any provision of this agreement is held invalid or unenforceable, the remaining provisions shall be valid and binding upon the parties. One or more waivers by either party of any provision, term or condition shall not be construed by the other party as a waiver of any subsequent breach of the same provision, term or condition. 11. INVOICES ENGINEER will submit monthly Invoices for services rendered and OWNER will make payments to ENGINEER within thirty (30) days of OWNER's receipt of ENGINEER's Invoice. ENGINEER will retain receipts for reimbursable expenses In general accordance with Internal Revenue Service rules pertalning to the support of expenditures for Income tax purposes. Receipts will be available for Inspection by OWNER's auditors upon request. If OWNER disputes any Items In ENGINEER's Invoice for any reason, including the lack of supporting documentation, OWNER may temporarily delete the disputed Item and pay the remaining amount of the invoice. OWNER will promptly notify ENGINEER of the dispute and request clarification and/or correction. After any dispute has been settled, ENGINEER will Include the disputed Item on a subsequent, regularly scheduled Invoice, or on a special Invoice for the disputed Item only. OWNER recognizes that late payment of Invoices results In extra expenses for ENGINEER. ENGINEER retains the right to assess OWNER Interest at the rate of one percent (1%) per month, but not to exceed the maximum rate allowed by law, on invoices which are not paid within thirty (30) days from the date OWNER receives ENGINEER's invoice. In the event undisputed portions of ENGINEER's Invoices are not paid when due, ENGINEER also reserves the right, after seven (7) days prior written notice, to suspend the performance of Its services under this Agreement until all past due amounts have been paid in full. 12. CHANGES The parties agree that no change or modification to this Agreement, or any attachments hereto, shall have any force or effect unless the change Is reduced to writing, dated, and made part of this Agreement. The execution of the change shall be authorized and signed in the same manner as this Agreement. Adjustments In the period of services and In compensation shall be in accordance with applicable paragraphs and sections of this Agreement. Any proposed fees by ENGINEER are estimates to perform the services required to complete the project as ENGINEER understands it to be defined. For those projects involving conceptual or process development services, activities often are not fully definable In the Initial planning. In any event, as the project progresses, the facts developed may dictate a change In the services to be performed, which may alter the scope. ENGINEER will Inform OWNER of such situations so that changes in scope and adjustments to the time of performance and compensation can be made as required. If such change, additional services, or suspension of services results in an Increase or decrease In the cost of or time required for performance of the services, an equitable adjustment shall be made, and the Agreement modified accordingly. 13. CONTROLLING AGREEMENT These Terms and Conditions shall take precedence over any Inconsistent or contradictory provisions contained In any proposal, contract, purchase order, requisition, notice -to -proceed, or like document. 14. EQUAL EMPLOYMENT AND NONDISCRIMINATION In connection with the services under this Agreement, ENGINEER agrees to comply with the applicable provisions of federal and state Equal Employment Opportunity for individuals based on color, religion, sex, or national origin, or disabled veteran, recently separated veteran, other protected veteran and armed forces service medal veteran status, disabllitles under provisions of executive order 11246, and other employment, statutes and regulations, as stated in Title 41 Part 60 of the Code of Federal Regulations § 60-1.4 (a -f), § 60-300.5 (a -e), § 60-741 (a -e). 15. HAZARDOUS MATERIALS OWNER represents to ENGINEER that, to the best of its knowledge, no hazardous materials are present at the project site. However, In the event hazardous materials are known to be present, OWNER represents that to the best of Its knowledge it has disclosed to ENGINEER the existence of all such hazardous materials, including but not limited to asbestos, PCB's, petroleum, hazardous waste, or radioactive material located at or near the project site, Including type, quantity and location of such hazardous materials. it Is acknowledged by both parties that ENGINEER's scope of services do not Include services related in any way to hazardous materials. In the event ENGINEER or any other party encounters undisclosed hazardous materials, ENGINEER shall have the obligation to notify OWNER and, to the extent required by law or regulation, the appropriate governmental officials, and ENGINEER may, at Its option and without liability for delay, consequential or any other damages to OWNER, suspend performance of services on that portion of the project affected by hazardous materials until OWNER: (1) retains appropriate specialist consultant(s) or contractor(s) to Identify and, as appropriate, abate, remediate, or remove the hazardous materials; and (11) warrants that the project site Is in full compliance with all applicable laws and regulations. OWNER acknowledges that ENGINEER Is performing professional services for OWNER and that ENGINEER Is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous materials, as defined In the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the project site In connection with ENGINEER's services under this Agreement. If ENGINEER's services hereunder cannot be performed because of the existence of hazardous materials, ENGINEER shall be entitled to terminate this Agreement for cause on 30 days written notice. To the fullest extent permitted by law, OWNER shall indemnify and hold harmless ENGINEER, Its officers, directors, partners, employees, and subconsultants from and against all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused by, arising out of or resulting from hazardous materials, provided that (1) any such cost, loss, or damage Is attributable to bodily injury, sickness, disease, or death, or Injury to or destruction of tangible property (other than completed Work), Including the loss of use resulting therefrom, and (11) nothing in this paragraph shall obligate OWNER to Indemnify any individual or entity from and against the consequences of that Individual's or entity's sole negligence or willful misconduct. 16. EXECUTION This Agreement, including the exhibits and schedules made part hereof, constitute the entire Agreement between ENGINEER and Terms & Conditions for Professional Services 2 (6/2023) OWNER, supersedes and controls over all prior written or oral understandings. This Agreement may be amended, supplemented or modified only by a written Instrument duly executed by the parties. 17. ALLOCATION OF RISK OWNER AND ENGINEER HAVE EVALUATED THE RISKS AND REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING ENGINEER'S FEE RELATIVE TO THE RISKS ASSUMED, AND AGREE TO ALLOCATE CERTAIN OF THE RISKS, SO, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF ENGINEER (AND ITS RELATED CORPORATIONS, SUBCONSULTANTS AND EMPLOYEES) TO OWNER AND THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE LESSER OF $1,000,000 OR ITS FEE, FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF ENGINEER'S SERVICES OR THIS AGREEMENT REGARDLESS OF CAUSE(S) OR THE THEORY OF LIABILITY, INCLUDING NEGLIGENCE, INDEMNITY, OR OTHER RECOVERY. ENGINEER'S AND SUBCONSULTANTS' EMPLOYEES ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS ALLOCATION OF RISK. 18. LITIGATION SUPPORT In the event ENGINEER Is required to respond to a subpoena, government Inquiry or other legal process related to the services In connection with a legal or dispute resolution proceeding to which ENGINEER is not a party, OWNER shall reimburse ENGINEER for reasonable costs In responding and compensate ENGINEER at Its then standard rates for reasonable time Incurred in gathering Information and documents and attending depositions, hearings, and trial. 19. NO THIRD PARTY BENEFICIARIES Except as otherwise provided in this Agreement, no third party beneficiaries are Intended under this Agreement. In the event a reliance letter or certification is required under the scope of services, the parties agree to use a form that Is mutually acceptable to both parties. 20. UTILITY LOCATION If underground sampling/testing Is to be performed, a local utility locating service shall be contacted to make arrangements for all utilities to determine the location of underground utilities. In addition, OWNER shall notify ENGINEER of the presence and location of any underground utilities located on the OWNER's property which are not the responsibility of private/public utilities. ENGINEER shall take reasonable precautions to avoid damaging underground utilities that are properly marked. The OWNER agrees to waive any claim against ENGINEER and will Indemnify and hold ENGINEER harmless from any claim of liability, injury or loss caused by or allegedly caused by ENGINEER's damaging of underground utilities that are not properly marked or are not called to ENGINEER's attention prior to beginning the underground sampling/testing. 21. UNMANNED AERIAL SYSTEMS If operating UAS, ENGINEER will obtain all permits or exemptions required by law to operate any UAS Included in the services. ENGINEER's operators have completed the training, certifications and licensure as required by the applicable jurisdiction in which the UAS will be operated. OWNER will obtain any necessary permissions for ENGINEER to operate over private property, and assist, as necessary, with all other necessary permissions for operations. 22. OPERATIONAL TECHNOLOGY SYSTEMS OWNER agrees that the effectiveness of operational technology systems and features designed, recommended or assessed by ENGINEER (collectively "OT Systems") are dependent upon OWNER's continued operation and maintenance of the OT Systems In accordance with all standards, best practices, laws, and regulations that govern the operation and maintenance of the OT Systems. OWNER shall be solely responsible for operating and maintaining the OT Systems in accordance with applicable laws, regulations, and Industry standards (e.g. ISA, NIST, etc.) and best practices, which generally Include but are not limited to, cyber security policies and procedures, documentation and training requirements, continuous monitoring of assets for tampering and Intrusion, periodic evaluation for asset vulnerabilities, Implementation and update of appropriate technical, physical, and operational standards, and offline testing of all software/firmware patches/updates prior to placing updates Into production. Additionally, OWNER recognizes and agrees that OT Systems are subject to Internal and external breach, compromise, and similar Incidents. Security features designed, recommended or assessed by ENGINEER are Intended to reduce the likelihood that OT Systems will be compromised by such Incidents. However, ENGINEER does not guarantee that OWNER's OT Systems are Impenetrable and OWNER agrees to waive any claims against ENGINEER resulting from any such Incidents that relate to or affect OWNER's OT Systems, 23. FORCE MAJEURE ENGINEER shall not be responsible for delays caused by factors beyond ENGINEER's reasonable control, Including but not limited to delays because of strikes, lockouts, work slowdowns or stoppages, government ordered Industry shutdowns, power or server outages, acts of nature, widespread infectious disease outbreaks (including, but not limited to epidemics and pandemics), failure of any governmental or other regulatory authority to act In a timely manner, failure of the OWNER to fumish timely Information or approve or disapprove of ENGINEER's services or work product, or delays caused by faulty performance by the OWNER's or by contractors of any level or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing. When such delays beyond ENGINEER's reasonable control occur, the OWNER agrees that ENGINEER shall not be responsible for damages, nor shall ENGINEER be deemed in default of this Agreement, and the partles will negotiate an equitable adjustment to ENGINEER's schedule and/or compensation if Impacted by the force majeure event or condition. 24. EMPLOYEE IMMUNITY The parties to this Agreement acknowledge that an Individual employee or agent may not be held Individually liable for negligence with regard to services provided under this Agreement. To the maximum extent permitted by law, the parties Intend 1) that this limitation on the liability of employees and agents shall Include directors, officers, employees, agents and representatives of each party and of any entity for whom a party Is legally responsible, and 11) that any such employee or agent Identified by name In this Agreement shall not be deemed a party. Specifically, in the event that all or a portion of the services Is performed in the State of Florida, the following provision shall be applicable: THE PARTIES ACKNOWLEDGE THAT PURSUANT TO APPLICABLE FLORIDA STATUTES AN INDIVIDUAL EMPLOYEE OR AGENT MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE WITH REGARD TO SERVICES PROVIDED UNDER THIS AGREEMENT. To the maximum extent permitted by law, the Parties intend i) that this limitation on the liability of employees Terms & Conditions for Professional Services 3 (6/2023) and agents shall include directors, officers, employees, agents and representatives of each Party and of any entity for whom a Party is legally responsible, and ii) that any such employee or agent identified by name in this Agreement shall not be deemed a Party. The Parties further acknowledge that the Florida statutes referred to above include but are not limited to: §558.0035(1)(a)-(e);§471.023(3)(an engineer is personally liable for negligence except as provided in § 558.0035); §472.021(3) (surveyor and mapper); §481.219(11)(architect and interior designer);§481.319(6) (landscape architect); and §492.111(4) (geologist). Terms & Conditions for Professional Services 4 (5/2023)