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)