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HomeMy WebLinkAboutMO #2243MUNICIPAL ORDER NO. 2243 A MUNICIPAL ORDER AUTHORIZING AND APPROVING A SHORT FORM AGREEMENT BETWEEN THE CITY OF PADUCAH AND HDR ENGINEERING, INC. IN AN AMOUNT OF $65,200 FOR PROFESSIONAL SERVICES RELATED TO GRANT WRITING, BENEFIT COST ANALYSIS AND ENVIRONMENTAL ASSESSMENT FOR THE FYI BETTER UTILIZING INVESTMENTS TO LEVERAGE DEVELOPMENT (BUILD) GRANT APPLICATION WHEREAS, the City of Paducah intends to apply for a FYI Better Utilizing Investments To Leverage Development (BUILD) Grant Application jointly with the Paducah - McCracken County Riverport Authority; and WHEREAS, the City of Paducah has sought out professional expertise is required for the specialized application; and WHEREAS, a written determination has been made by the City Manager that this agreement with HDR Engineering, Inc. is for professional services and will be a noncompetitive negotiation purchase, pursuant to KRS 45A.380(3). • ; � : �� � llll�: �7:171Z�]�K�]TITui[.Y.y[�7�I:li.Y�]OIIYIxyYll`L�7� PADUCAH, KENTUCKY, AS FOLLOWS: SECTIONI. The City hereby authorizes and approves a Short Form Agreement with HDR Engineering, Inc., in an amount of $65,200, in substantially the same form attached hereto and made part hereof (Exhibit A), for professional services related to related to grant writing, benefit cost analysis and environmental assessment for the FYI Better Utilizing Investments To Leverage Development (BUILD) Grant Application. Further, the Mayor is authorized to execute the Agreement. SECTION 2. This expenditure shall be charged to the TIF/Opportunity Zone Project No. DT0044. SECTION 3. This order shall be in full force and effect from and after the date of its adoption. Brandi Harless, Mayor ATTEST: �( ,'117`— mdsay Parish, City Clerk Adopted by the Board of Commissioners, May 28, 2019 Recorded by Lindsay Parish, City Clerk, May 28, 2019 \MO\agree- HDR BUILD Grant 2019 Exhibit A Paducah to 19" 1 Grant ApplliicationM y20,2019 12019 BUILD Attachment A. SHORT FORM AGREEMENT BETWEEN OWNER AND HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES THIS AGREEMENT is made as of this day of 20_, between CITY OF PADUCAH, KENTUCKY (°OWNER"),with offices at 300 South 5"' Street, Paducah, KY 42003, and HDR ENGINEERING, INC., ("ENGINEER" or "CONSULTANT") for services in connection with the project known as the Riverfront to Riverport 2019 BUILD Grant Application and Phase I Assessment("Project"); WHEREAS, OWNER desires to engage ENGINEER to provide professional engineering, consulting and related services ("Services") In connection with the Project. WHEREAS, Engineer desires to render these Services as described in SECTION 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 B 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 a lump sum basis. The amount of the lump sum is_Slxty Thousand Dollars (;60,000) for the BUILD Grant Application and Five Thousand Two Hundred Dollars ($5,200) for the Phase I Assessment. SECTION V. PERIOD OF SERVICE Upon receipt of written authorization to proceed, ENGINEER shall perform the services within the time pedod(s) described in Exhibit A. hdrinc.com 4645 Village Square Drive I Paducah, KY 42001 1270.444.9691 Paducah Ri"rfront to Rhrarport 12019 BUILD Grant Application May 20, 2019 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. SECTION VI. SPECIAL PROVISIONS IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. "OWNER"— CITY OF PADUCAH BY: NAME: Brandi Harless TITLE: Mayor ADDRESS: 300 South 5"' Street — Paducah, KY 42003 "ENGINEER" -HDR ENGINEERING, INC. a NAME: Shawn P. Washer, PE TITLE: Vice President/Office Principal ADDRESS: 4645 Village Square Drive, Suite F Paducah, KY 42001 hdrino.com 4645 village Square Drive I Paducah, KY 42001 1270.444.9891 I=l,:1mII;Ir1 See Proposal dated May 20, 2019 hdrinc.can 4645 Village Square Ddve I Paducah, KY 42001 1270.444.9691 May 20, 2019 Ms. Tammara Tracy Planning Director City of Paducah 300 South 51h Street Paducah, KY 42003 RE: 2019 BUILD Grant Application and Phase I Assessment Dear Tammare, 2019 BUILDn lica i n HDR Engineering, Inc. (HDR) is submitting this proposal to assist the City of Paducah in the development of a Federal BUILD 2019 grant application for improvements for the Riverfront to Riverport project HDR has found that the following is required for a compliant grant application: 1. A complete description of the project: its goals, its purpose and need, and how it will beimplemented. 2. Completed engineering and environmental documentation, or a well -articulated plan to complete them. 3. Clear alignment with most of the grant program's Merit Criteria. 4. A readable, complete narrative application. 5. Abeneficost analysis and economicimpact analysis demonstrating positive public economic outcomes. S. Matching state, local, or private cash contributions (not expense -in-kind contributions), that exceed the proposed federal grant contribution, and preferably matches that include privatesectorcontributions. 7. Expressed, strong, specific, preference for the project, among all the various projects in the state for which applications might be submitted, by one or more Senators or Congressional Representatives, and from the Governor's office. Background Recently the USDOT announced the Better Utilizing Investments to Leverage Development (BUILD) discretionary grant program. BUILD replaces a pre-existing grant program known as TIGER and utilizes updated evaluation criteria aligned with national and regional economic goals. These highly competitive grants are designed to close funding gaps for road, rail, transit and port projects that will have a significant local or regional impact. The U.S. DOT has allocated $900 million for FY2019, with applications due on July 15, 2019, to be submitted through the Grants.gov website. Grant awards under the 2019 BUILD program may not be less than $5 million and not greater than $25 million, except for projects located in rural areas, where the minimum award is $1 million. hdrinc.cem 4645 Village Square Drive I Paducah, KY 42001 1270.444.9891 01Paducah Rlverrront to Rlverpon 12019 BUILD Great Application May 20, 2019 While BUILD resembles TIGER, there are some notable differences, including: Explicit preference for rural projects. U.S. DOT intends to award half of the funds to projects in rural areas, continuing a focus that began In the last round but now is explicitlynoted in the FY2019 notice. BUILD Transportation Planning Grants. Up to $15 million (of the $900 million) can be awarded for the planning, preparation or design of eligible projects. Planning grants haven't been awarded since 2014. - Federal share no longer a criterion. U.S. DOT is not allowed to consider the portion of total costs that are covered by Federal funds as a criterion for selection (as per the funding legislation). The Federal share of a projects costs can still be no more than 80 percent of total project costs for a project located in an urban area. The Secretary may increase the Federal share of costs above 80% for a project located in a rural area. - New criterion — ability to generate &ddffhWW non -Federal revenue for transportation Infrastructure. U.S. DOT will look at whether applicants are or will "secure and commit new, non - Federal revenue for transportation infrastructure investment;" and those who do will be more competitive. The notice mentions approaches such as asset recycling, tolling, tax -increment financing, or sales- or gas -tax increases as examples. Scope of Work The project anticipated to be described in the grant application includes the Paducah Riverfront Commons and Steamboat Landing/Excursion Pier Project and the Riverport Container Transfer Yard Development Project. The Paducah Commons is a redevelopment of a vacant lot from a former riverfront hotel featuring a new excursion pier, pedestrian pathways and related amenities reconnecting the river with the City and creating multimodal transportation opportunities in rural America. The container transfer yard redevelops a brownfield site into a facility to support the emerging demand for Container On Barge in the four state region. HDR will provide the City of Paducah with the following tasks for assistance in developing its BUILD Grant Application for the above project. Task 1. Project Mck-Off/Strategic Guidance HDR will provide the City of Paducah with guidance on USDOrs BUILD guidelines and probable application review strategy, application development, schedule, criteria, and overall strategy that will provide the City with a strong BUILD 2019 Grant Application. This task will include conference calls to discuss various alternatives and options for the development of the applications, as well as providing the City with intelligence gathered regarding the BUILD 2019 program. HDR will use the project kick-off call as an opportunity to present our initial methodological approach and detailed work plan. The kick-off call will also be used as an opportunity to obtain any relevant existing documentation related to the project; and to identify "reasonable" alternatives (defined in USDOT guidance as smaller ale or more focused projects) for consideration. Deliverables: Intelligence gathered as appropriate transmitted to the City via email and telephone calls. Task 2. BUILD Grant Application Preparation HDR will assist the City in the preparation of the BUILD 2019 Grant Application for the project. The project for which a BUILD grant will be sought will consist of design, permitting, and construction of the project. HDR will provide technical writing and review services, and the preparation of select graphics to the City to enable the grant application to achieve an appropriate fit to the BUILD 2019 grant criteria. HDR will also assist in evaluating the selected project and developing content for each of the key program objectives described earlier in this proposal. The City will be responsible for the actual submittal of the grant application on the grants.gov site. hdrinc.corn 4545 Village Square Drive I Paducah, KY 42001 1270.444.9691 ®)lPaducah Rlwrrrontto Rlverport12019 BUILD Grant Application May 20, 2019 The application narrative will follow USDOT's recommended outline and approach for describing the project, its costs, funding, benefits, and other factors. HDR will design the application narrative to be easily accessible and emphasize the project's strengths with key themes throughout the application narrative. The BUILD grant application narrative will include the following project narrative, generally following the basic outline below, as per the NOFO: 1. Project Description II. Project Location III. Grant Funds, Sources and Uses of all Project Funding IV. Selection Criteria V. Project Readiness VI. Benefit Cost Analysis The City will provide necessary documentation detailing the project scope, budget, schedule, and likely impacts on transportation in the region. HDR will work with City personnel to identify the material risks to the project and the strategies that the City has developed to mitigate those risks. Dellverables: Completed BUILD 2019 Grant Application. Task 3. Benefit -Cost Analysis / Economic Impacts Analysis HDR will quantify public benefits expected to be derived from the project that demonstrate adherence with BUILD's criteria as described above. A key challenge of BUILD grant applications will be to provide compelling evidence to USDOT of the merit of the project and its quantitative benefits in comparison to other projects being proposed by other applicants. Generally, we propose a five step process for the economic analyses that need to be undertaken: STEP 1: DEFINE BASELINE AND ALTERNATIVE SCENARIOS The NOFO requires that project benefits are estimated relative to a no -build scenario that factors In less capital -intensive improvements than the project being considered. Under this step, HDR will work with the City to clarity the baseline condition and the possible alternatives for consideration. STEP 2: IDENTIFY PUBLIC BENEFIT CATEGORIES This step formalizes the public benefit categories to be evaluated. Included in this step is a strategy session by which the various components of the project will be discussed in order to fully define which elements should be included in the project scope in order to maximize probability of a grant award. STEP 3: DEVELOP AND CODE BENEFIT -COST MODEL LOGIC For each of the benefit categories identified in Step 2 above, logic models will be developed that represent the methodology used to monetize each project benefit. The logic model will be populated with the most up- to-date information available. HDR will collect model inputs from a variety of sources including the City, USDOT guidance, and other project documentation (e.g., its Feasibility Study, Environmental Assessment, cast estimates, etc.). STEP 4: PRODUCE BENEFIT -COST RESULTS, TEST SENSITIVITY OF RESULTS AGAINST KEY VARIABLES In this step, key variables will be flagged for testing and the model will be re -run and results generated based on key material events. STEP 5: ISSUE RESULTS In this step, materials for inclusion in the BUILD grant application and in support of the findings described in the economics section of the applications are drafted. Typically, a short document is drafted with key sections for input directly into the application document and a second short appendix is drafted that can be posted hdrinc.com 4645 Village Square Drive I Paducah, KY 42001 1270.444.9591 ®!DI Paducah Rlvaefrord to Rlverport 12019 BUILD ® Grant Application May 20, 2019 online and referenced in the text of the document. The appendix describes the evaluation approach, describe the data and assumptions used, and present the results and the sensitivity analysis conducted. Budget Based on the tasks described in this proposal, HDR proposes a fee of $60,000 for this engagement. Schedule HDR will complete the tasks described in this proposal no later than one week prior to the BUILD grant application submission deadline, assuming that the City provides all necessary data, Information and documentation to HDR. A proposed breakdown of the activities required to produce the BUILD application and a tentative timeframe for their completion is provided below. Notice to Proceed May 20, 2019 Teleconference meeting May 20, 2019 The City transmits project data to HDR May 20, 2019 to June 7 2019 HDR submits Draft BUILD application narrative to the City for review June 21, 2019 The City submits comments on Draft BUILD application narrative June 28, 2019 HDR submits Draft BCA Appendix to the City July 5, 2019 The City submits comments on BCA Appendix July 9, 2019 HDR submits Final BUILD application narrative and BCA Appendix to the City July 12, 2019 The City submits BUILD application to USDOT No Later than 8:00 p.m. EST July 15, 2019 hdrinc.com 4545 Village Square Drive I Paducah, KY 42001 1270.444.9691 Paducah nt 9-N Gre A plication May 20 r220019 rt 12019 BUILD Project Understanding HDR Engineering Inc. (HDR) is assisting the City of Paducah, Kentucky to complete a Phase I Environmental Site Assessment at the downtown riverfront parcel depicted on the attached map with the red boundary. This project will consist of the development of a Phase I Environmental Site Assessment Report (ESA) for the property currently used as a recreational area, as depicted in the attached map. The Scope of Services (Scope) for this task is as follows. Scope of Services Objective The objective of the Phase I ESA is to identify Recognized Environmental Conditions (RECs) that either currently exist or may have existed on or around the Site as defined under the ASTM Method E1527-13 Standard Practice for Environmental Site Assessments; Phase I Environmental Site Assessment Process (ASTM Standard). HDR Activities HDR will utilize a research firm to provide a regulatory database search of the Site and surrounding properties that will include ASTM -prescribed federal, state, tribal, and local databases within the ASTM -prescribed search distances. If determined to be necessary, HDR will complete file reviews for sites listed in the database that, in the view of an HDR environmental professional, may pose an impact to the Site. HDR will review historical information for the Site, as applicable and available, according to the determination of the HDR environmental professional. Sources of historical information may include aerial -photography, USGS 7.5 -minute topographic maps, fire-insurence maps, local street -directories, property tax files, building -department records, recorded land title/deed records, and zoningfiand-use records. HDR will perform a site reconnaissance of the property and surrounding properties, in accordance with the guidance provided In the ASTM standard. The site reconnaissance will be conducted in order to identify potential RECs located on the Site, or on surrounding properties with the potential to impact the Site. The site reconnaissance may also be augmented with a Site Reconnaissance Questionnaire that will document the general site setting and exterior and interior observations (if applicable and available). HDR will conduct interviews with the property owner and people with knowledge of the property as appropriate. If conditions warrant, interviews with surrounding property owners will be conducted. A narrative will be prepared to document the past use(s) of the property. Interviews will be conducted, as appropriate, with local government officials who may have specific information on the property, Including the local fire department, health department, planning department, and historical society/library, to determine any additional information on the historical land use of the property and surrounding properties. Meetings I A site visit by an HDR professional (meeting the criteria of an hdrinc.com 4645 Village Square Drive I Paducah, KY 42001 1270.444.9591 Paducah Rlverlront to Rlverport 12019 BUILD a J< Grant AppllcOm May 20, 2019 Schedule Milestones The draft assessment report will be provided for review within thirty (30) days of Notice to Proud. The final report will be delivered within three (3) days from the receipt of Client comments on the draft report Compensation HDR will complete the Services for a lump sum price of $5,200. hddnc.c= 4645 Village Square Drive I Paducah, KY 42001 1270.444.9691 Environmental Professional, as defined in the ASTM standard) will be completed. Two conference calls will be completed with the client and users of the Phase I Report to review the results of the assessment. Task HDR will prepare an electronic draft and final copy of the Phase I Deliverables Environmental Site Assessment report The report will include findings, opinions and conclusions. Recommendations for further actions may be included, if the client requests. Recommendations may also be provided under separate cover, since the ASTM standard does not require inclusion of Recommendations in the report. Key Client to provide a site map or survey of the property and a title Understandings abstract report, if available, identifying the paroel(s) that are the subject of this site assessment Client to arrange full Site access for HDR and provide contact information for Site owners that may be aware of Site's history. HDR assumes that file reviews can be completed electronically. If HDR Is required to review extensive documents on a site at the appropriate Federal or state agency, additional cost may be Incurred. Client will provide information regarding environmental liens on the property. No invasive site work, quantitative chemical analysis, asbestos, lead-based paint, components of building materials, radon, wetlands, archaeological or threatened & endangered species reviews are included in the scope of this ESA. The ASTM Standard currently requires a reaF estate assessment to be completed in the event there is a significant devaluation of the subject property due to an environmental condition. HDR's professional services do not include this assessment, and this will be noted as an exception to the ASTM Standard. This task covers the Phase I ESA only, and does not include any services related to additional investigation of any portion of the Site and/or Phase II ESA services. The ASTM Standard defines the "Shelf Life° for Phase I Reports as 180 days. If closing has not occurred within 180 days, an update of the Phase I ESA may be required. Reliance letters may be provided at additional cost. Schedule Milestones The draft assessment report will be provided for review within thirty (30) days of Notice to Proud. The final report will be delivered within three (3) days from the receipt of Client comments on the draft report Compensation HDR will complete the Services for a lump sum price of $5,200. hddnc.c= 4645 Village Square Drive I Paducah, KY 42001 1270.444.9691 KR Grant M Applicatio May 20, 01Paducah RNerfront to 9 12019 BUILD Confidentiality HDR staff assigned to this project will maintain confidentiality with the City on this protect, including all materials, information, and work products developed. We very much appreciate this opportunity to assist the City with this critical project. If this proposal meets with your approval, please sign the SHORT FORM AGREEMENT BETWEEN OWNER AND HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES in Attachment A and return the signed agreement. Please call me at 270.538.1502 with any questions or concerns related to this proposal. Sincerely, HDR Engineering, Inc. low Shawn P. Washer, PE Vice President / Office Principal hdrinc.com 4645 Village Square Drive I Paducah, KY 42001 1270.444.9691 KRPaducah Rlverhont to Rlverport 12019 BUILD Grant Application May 20, 2019 Boundary of Phase I Assessment hdrinc.eom 4945 Village Square Drive I Paducah, KY 42001 1270.444.9991 EXHIBIT B HDR Engineering, Inc. Tennis and Conditions for Professional Services 1. STANDARD OF PERFORL ANCE The standard of care for all professional engmeedng, consulting and related services performed or furnished by ENGINEER and its employees underthkt 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 some locality. ENGINEER makes no warcantes, express or Implied, under this Agreement or otherwise, in connection with ENGINEER's services. 2. INSURANCEIINDEMNrIY ENGINEER agrees to proms and maintain, at tis expense, Wadhams' Compensation Insurance as required by statute; Employer's Liability of $250,000; Automobile Llabilly Insurance of $1,000,000 combined single limit for badly Injury and property damage covering all vehicles, Including hired vehicles, owned and non -owned vehicles; Commercial General Uabllhy Insurance of $1,O DAW combined single limit for personal Injury and property damage; and Professional Liability insurance of $1,000,000 per claim for protection against clams arising out of the performance of services under this Agreement caused by negligent acts, errors, or omisslons for which ENGINEER Is legally liable. If tying an Urenanned Aerial Syntem ((JAB or drone), ENGINEER will procure and maintain aircraft unmanned serial 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% negligent acts, errore 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; Ions of good will; cost of substitute facilities, goods, or services; out of capital; and/or fines or penalties), loss of profile or revenue arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or causes, Including but not Imited to any such damages caused by the negligence, errors or omissions, strict liability or breach of contract. 3. OPINIONS OF PROBABLE COST (COST ESTIMATES) Any opinions of probable project cost or probable construction coat provided by ENGINEER are made on the beet of Information available to ENGINEER and on the basis of ENGINEER% experience and quallfloatlons, and represents Its judgment as an expedenced and qualified professional engineer. However, since ENGINEER hes no control over the coat of labor, materials, equorand or services fumtshed by others, or over the cwftctor(sy methods of del ermini g 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. 4. CONSTRUCTION PROCEDURES ENGINEER% observation or monitoring portions of the work performed under consbudlon contracts shall not relleve the Contractor from its responslbllly for performing work in accordance with applicable contract docanents. ENGINEER shall not control or have charge of, and shall not be responsible for, construction means, methods, techniques, sequences, procedraes of construction, health or safety programs or precautions conneded 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 entlded 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% construction contracts for the work, which shell protect ENGINEER to the same degree as OWNER. Further, OWNER agrees that ENGINEER shall be listed as an additional insured under the construction contractors liability Insurance policies. tL CONTROLLING LAW This Agreement Is to be governed by the law of the state where ENGINEER%services are performed. S. SERVICES AND INFORMATION OWNER will provide alt atioda sed Information pertaining to OWNER's requirements forth& project, Including desbn objedfves and constraints, space, capacity and performance requirements, flexibility and sxpendablltiy, and any budgetary limitations. OWNER will also provide copies of any OWNER - furnished Standard Details, Standard Specifications, or Stardard 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 -furnished documents and services. In performing professional enginesrkg and related services hereunder, It Is understood by OWNER Hurt ENGINEER Is not engaged in rendering any type of legal, Insurance or accounting services, opfnlons or advice. Further, r Is the OWNER%sole responsibility to obtain the advice of an attorney, insurance counselor or accountant to protect the OWNER's legal and financial Interests. To ghat end, the OWNER agrees that OWNER or the OWNER'S representat m will examine all studies, reports, Wretches, 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 be 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 dalme arising therefrom without the written consent of the other. No third party bensfidarles are Intended under this Agreement 0. REUSE OF DOCUMENTS All documents, indudhg all reports, drawings, spedOcatlons, computer software or other rams prepared or furnished by ENGINEER pursuant to this Agreement, are instruments of service with reaped to they project ENGINEER retains ownership of all such documents. OWNER may nor 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 sultable for reuse by OWNER or others an extensions of the projed or on any other project. Any reuse without written verification or adaptation by ENGINEER for the speoac 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, 12 (6/2019) A 10. damages, losses and expenses, including attorney's fees, 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 relmbumemrank the final Invoice will Include all services and expenses associated with the project up to the egecllva date of termination. An equitable adjustment shall also be made to provide for termination settlement costs ENGINEER hicu s as a result of commitments that had became firm before terminatlon, and for a reasonable profit for services perromred. SEVERABILITY If arty 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 some provision, term or condition. 11. INVOICES ENGINEER will submit momhty invoices for servioon rendered and OWNER will make payments to ENGINEER within thirty (30) days of OWNER'e receipt of ENGINEER's Invoice. ENGINEER will retain receipts for reimbursable expenses in general accordance with Internal Revenue Service rules pertaining 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 aupporting documentation, OWNER may temporarily delete the disputed Item and pay the remaining amountof 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 Hem on a subsequent, regularly adreduled Invoice, or on a special involice forthe disputed Hem only. OWNER recognizes that late payment of invoices results in extra expenses for ENGINEER. ENGINEER retains the right to assess OWNER interest at the rale of one percent (1%) per month, but not to exceed the maximum rete allowed by law, on invoices which are not paid within thirty (30) days from the data OWNER receives ENGINEElTa invoice. In the avert undisputed portions of ENGINEER'S invoices are not paid when due, ENGINEER also reserves the right, after seven (7) days prior written nodes, to suspend the performance of Is services under this Agreement unfit all past due amounts have been paid in full. 12. CHANGES The parties agree that no flange or modification to this Agreement, or any attachments hereto, shall have any force or eflecl 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 some manner as this Agreement. Adjusbnenle In the period of services and In compensation shall be In accordance with applicable paragraphs and sedons of this Agreement. Any proposed fees by ENGINEER are estimates to perform the services required to complete the project as ENGINEER undestands f to be defined. Fortho se projects Involving conceptual or process developmesd services, activities often are not fully definable in the Initial planning. In any event, as the project progression, the fads developed may dictate a change In the services to be performed, which may alter the scope. ENGINEER will Inform OWNER of such situations so Bid changes in scope and adjusbnens to the time of perfomsnce and compensation can be made as required. If such change, additional services, or suspension of services results In an Inaaasa 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 No precedence over any inconsistent or contradictory provisions contained In any proposal, contract, purchase order, requisition, nollwt nosed, or like docomant 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 vsteren and amred forces service medal veteran status, disabilities under provlsione of executive oder 11245, and other employment, statutes and regulations, as staled In Title 41 Part 50 of the Code of Federal Regulations § 50.1.4 (a -f), § 50-300.5 (a-0), § 50.741 (a -e). 16. 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 beat of Its knowledge it has disclosed to ENGINEER the existence of all such hazardous material&, Including but not limited to asbestos, PCS's, petroleum, hazardous waste, or radioactive material located at or roar 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 IS 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 oonsultant(e) or oontractor(s) to Identify and, as appropriate, abate, mmedlele, or remove the hazardous materials; and (0) warrants that the project site is In full compliance with all applicable Taws and regulations. OWNER acknowledges that ENGINEER Is performing professional services for OWNER and that ENGINEER to not and shall not be required to become an'arranger,' "operator," "generator," or "bsnsporter' of hazardous materials, as defined in the Comprehensive Environmental Response, Compensation, and Liability Ad of 1900 (CERCLA), which are or may be encountered at or near the projed site In connection with ENGINEER'sservices under this Agresmant N 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 suboonsultans from and against all toes, 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, lose, or damage Is attributable to bodily injury, sickness, disease, or death, or Injury to or destruction of tangible property (other then computed Work), Including the lose of use resulting therefrom, and (II) nothing in this paragraph shall obligate OWNER to Indemnify any Individual or entity from and against the consequences of that Individual's or entity'e sole negligence or willful misconduct 15. EXECUTION This Agreement, Induding the exhibb and sch Jules made part hereof, constitute the entire Agreement between ENGINEER and 13 (5@019) F OMER, supersedes and controls over all prior written or oral understandings. ThlsAgreement may be amended, supplemented or modified only by a written Instrument duty 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 LINKED 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. 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 mimburae ENGINEER for reasonable carets 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 No third party beneficiaries are Intended raider this Agreement. In the event a reliance letter or certification is required under the scope of services, the partles agree to use a form that is mutually acceptable to both parties. 20. UTILITY LOCATION If underground sampli guesting Is to be performed, a local utility locating service shall be contacted to make arrangements for all utllkies 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 mold damaging underground utilities that are property marked. The OWNER agrees to waive any clakn against ENGINEER and will Indemnify and hold ENGINEER harmless from any clakn of liability, Injury or lose caused by or allegedly caused by ENGINEER's damaging of underground utllNes that are not property marked or are not celled to ENGINEER's attention prior to beginning the underground samplinghosting. 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 tralning, certifications and Ilcensure 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 efTacthmnosu of operational technology systems COT Systems') and features designed or recommended by ENGINEER are dependent upon OWNER's continued operation and maintenance of the OT Systema In accordance with all standards, best practices, laws, and regulations that govem the operation and maintenance of the OT Systems. OWNER shag be solely responsible for operating and maintaining the OT System in accordance with applicable Industry standards (i.e. ISA, NIST, aft) and beat 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 softwara/tirmwere patchasNpdatee prior to placing updates Into production. Additionally, OWNER recognWs and agrees that OT Systems are subject to internal and external breach, compromise, and slmllar Incidents. Security features designed or recommended 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 Systema aro Impenetrable and OWNER agrees to waive any claim against ENGINEER resulting from any such Incldents that relotsto or affect OWNER'a OT Systems. 14 (5/2019) .