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Southwest Arterial / U.S. 52 Intelligent Transportation System Corridor - HDR Professional Services Agreement Copyrighted January 19, 2021 City of Dubuque Consent Items # 10. City Council Meeting IT EM T IT LE: Southwest Arterial / U.S. 52 I ntelligent Transportation System Corridor- HDR Professional Service Agreement SUM MARY: City Manager recommending approval and authorization for the City Manager to execute a consultant Professional Service Agreement with HDR Engineering, I nc. to assist in providing design services for the development and implementation of an I ntelligent Transportation System (ITS) along the SouthwestArterial / U.S. 52 Corridor. RESOLUTION Approving the Consultant Professional Services Agreement between the City of Dubuque and HDR Engineering, Inc. for the development and implementation of an I ntelligent Transportation System (ITS) along the SouthwestArterial / U.S. 52 Corridor SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s) DISPOSITION: ATTACHMENTS: Description Type SW Arterial/US 52 ITS Corridor Agreement with City Manager Memo HDR-MVM Memo Staff Memo Staff Memo Resolution Resolutions Professional Service Agreement Supporting Documentation Dubuque THE CITY OF � ui-Aseria cih DuB E , . � . , � II � Maste iece on tj2e Mississi i zoo�•zoiz•zois YP pp zoi�*zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Southwest Arterial / U.S. 52 Intelligent Transportation System Corridor - HDR Professional Service Agreement lowa DOT Project No. ITS-032-1 (51)--25-31 DATE: January 13, 2021 Assistant City Engineer Robert Schiesl recommends City Council approval and authorization for the City Manager to execute a consultant Professional Service Agreement with HDR Engineering, Inc. to assist in providing design services for the development and implementation of an Intelligent Transportation System (ITS) along the Southwest Arterial / U.S. 52 Corridor. When the City and lowa Department of Transportation staff initially discussed the development and implementation of an ITS network along the Southwest Arterial Corridor, the lowa DOT had already hired HDR Engineering, Inc. to assist in providing design services. Through these discussions, it was determined that the City would be better suited to lead the development and implementation of an ITS network to ensure compatibility with the City's existing ITS system and infrastructure. Per the Agreement, the City will be responsible for the design and construction and the lowa DOT shall reimburse the City for said costs. Through discussions with the lowa DOT Project Management Bureau, the lowa DOT supported the City selecting a consultant from the lowa DOT's Traffic Operations On-Call consultant selection list. Since HDR Engineering, Inc. is on the Traffic Operations On-Call consultant list and was previously hired by the lowa DOT to assist in providing design services for this project, both City and lowa DOT staff felt it was reasonable to retain HDR Engineering, Inc. to remain on the project. The estimated cost for the consultant Professional Service Agreement with HDR Engineering, Inc. is $165,000. I concur with the recommendation and respectfully request Mayor and City Council approval. � Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Cori Burbach, Assistant City Manager Gus Psihoyos, City Engineer Robert Schiesl, Assistant City Engineer 2 Dubuque THE CITY OF � All•America Cit� D L � Mf10�N c]VC IJnall U ' I 1�► � � Maste iece on the Mississi i 20o�•2oi2�2oi3 �P pp zoi��zoi9 TO: Michael C. Van Milligen, City Manager Gus Psihoyos, City Engineer FROM: Robert Schiesl, Assistant City Engineer DATE: January 12, 2021 SUBJECT: SW Arterial / U.S. 52 ITS Corridor - HDR Professional Service Agreement lowa DOT Project No. ITS-032-1 (51)--25-31 INTRODUCTION The purpose of this memorandum is to provide information and to request City Council approval and authorization for the City Manager to execute a consultant Professional Service Agreement between the City and HDR Engineering, Inc. to assist in providing design services for the development and implementation of an Intelligent Transportation System (ITS) along the Southwest Arterial / U.S. 52 Corridor. BACKGROUND With the Southwest Arterial / U.S. 52 project completed and open to vehicular traffic, the City and lowa DOT have continued the collaborative partnership with discussions on developing and implementing an ITS network along the Southwest Arterial Corridor. The City already manages and operates a robust ITS network consisting of cameras, sensors, dynamic message boards, and other related technology in the City for the purpose of easing traffic congestion and improving the safety and efficiency of vehicle transportation in and around the Dubuque area. The City and lowa DOT wish to jointly partner together to design and construct a similar fiber optic communication and ITS system along the Southwest Arterial Corridor, consisting of cameras, sensors, dynamic message boards, and other related technology to support transportation and public safety applications. To facilitate the development and implementation of an ITS network along the Southwest Arterial Corridor, in April 2020 the City and lowa DOT entered into a Cooperative Funding Agreement (Agreement No. 2020-16-033) which outlines the terms and conditions, including funding; construction; ownership and maintenance of the proposed ITS network. Per the Agreement, the City will be responsible for the design, construction, inspection and on-going maintenance of a multi-duct conduit system, fiber optic cable, and all related equipment to support a fiber optic communications system along the Southwest Arterial from U.S. 20 to U.S. 61/151. The multi-duct conduit system and fiber optic cable will be installed along Southwest Arterial and located within City right-of-way or City utility easement to the extent possible. The fiber optic communications and ITS system will be installed in accordance with the project plans, applicable City and lowa DOT specifications. Upon completion of the system installation, the City shall own and operate the fiber optic communications and ITS system and shall provide the lowa DOT access to the City ITS Network for transportation and public safety use by State of lowa and the lowa Communications Network (ICN). The City will reserve for the lowa DOT - 24 strands of fiber optic cable from a City installed fiber optic cable along the Southwest Arterial Corridorfrom U.S. 20 to U.S. 61/151. In return for the City designing, constructing, operating and maintaining the fiber optic communications and ITS system, including the 24 strands of fiber optic cable reserved / used by the lowa DOT, the State of lowa shall reimburse the City for an amount not to exceed $1,500,000. DISCUSSION When the City and lowa DOT staff initially discussed the development and implementation of an ITS network along the Southwest Arterial Corridor, the lowa DOT had already hired HDR Engineering, Inc. to assist in providing design services. Through these discussions, it was determined that the City would be better suited to lead the development and implementation of an ITS network to ensure compatibility with the City's existing ITS system and infrastructure. Per the Agreement, the City will be responsible for the design and construction and the lowa DOT shall reimburse the City for said costs. Through discussions with the lowa DOT Project Management Bureau, the lowa DOT supported the City selecting a consultant from the lowa DOT's Traffic Operations On-Call consultant selection list. Since HDR Engineering, Inc. is on the Traffic Operations On-Call consultant list and was previously hired by the lowa DOT to assist in providing design services for this project, both City and lowa DOT staff felt it was reasonable to retain HDR Engineering, Inc. to remain on the project. RECOMMENDATION I recommend that the City Council authorize the City Manager to execute a consultant Professional Service Agreement between the City and HDR Engineering, Inc. to assist in providing design services for the development and implementation of an Intelligent Transportation System (ITS) along the Southwest Arterial / U.S. 52 Corridor. BUDGETIMPACT The anticipated total ITS project funding is summarized as follows: CIP Fundinq Source Amount lowa DOT / State of lowa $ 1,500,000.00 3002848 City (Sales Tax Fund 30%) - FY 21 / 22 100,000.00 Total Project Funding $ 1,600,000.00 The City has budgeted $50,000 in both FY2021 and FY2022 to cover staff payroll expenses to administer the design and construction of the fiber optic communications and ITS system. The estimated cost for the consultant Professional Service Agreement with HDR Engineering, Inc. to assist in providing design services for the development and implementation of an ITS network along the Southwest Arterial / U.S. 52 Corridor is as follows: CIP Fundinq Source Amount 3002848 HDR - Professional Service Agreement $ 165,000.00 Total Project Cost $ 165,000.00 The anticipated project funding for the consultant services is summarized as follows: CIP Fundinq Source Amount 3002848 lowa DOT / State of lowa $ 165,000.00 Total Project Funding $ 165,000.00 ACTION TO BE TAKEN I respectfully request that the City Council adopt the attached resolution and authorize the City Manager to execute a consultant Professional Service Agreement between the City and HDR Engineering, Inc. to assist in providing design services for the development and implementation of an Intelligent Transportation System (ITS) along the Southwest Arterial / U.S. 52 Corridor. Attach. Prepared by Robert Schiesl, Assistant City Engineer cc: Jenny Larson, Director of Finance and Budget Dave Ness, Civil Engineer F:\PROJECTS\SOUTHWEST ARTERIAL\ITS Corridor\HDR Agreement Prepared by Bob Schiesl, Asst. City Engineer, 50 W. 13th St., Dubuque, IA 52001, (563) 589-4276 Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13th St., Dubuque, IA 52001, (563) 589-4100 RESOLUTION NO. 12-21 RESOLUTION APPROVING THE CONSULTANT PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DUBUQUE AND HDR ENGINEERING, INC. FOR THE DEVELOPMENT AND IMPLEMENTATION OF AN INTELLIGENT TRANSPORTATION SYSTEM (ITS) ALONG THE SOUTHWEST ARTERIAL / U.S. 52 CORRIDOR Whereas, with the Southwest Arterial / U.S. 52 completed and open to vehicular traffic, the City and Iowa DOT wish to jointly partner together to develop and implement an ITS network along the Southwest Arterial Corridor; and Whereas, the City and Iowa DOT entered into a Cooperative Funding Agreement (Agreement No. 2020-16-033) to develop and implement an ITS network along the Southwest Arterial Corridor; and Whereas, per the Agreement, the City will be responsible for the design and construction and the Iowa DOT shall reimburse the City for said costs; and Whereas, the City has selected HDR Engineering, Inc from the Iowa DOT's Traffic Operations On -Call consultant list to assist in providing design services for the development and implementation of an ITS network along the Southwest Arterial / U.S. 52 Corridor. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That said consultant Professional Service Agreement between the City and HDR Engineering, Inc. to assist in providing design services for the development and implementation of an Intelligent Transportation System (ITS) along the Southwest Arterial / U.S. 52 Corridor is hereby approved. Section 2. That the City Manager is hereby authorized and directed to execute two copies of said Professional Service Agreement between the City and HDR Engineering, Inc. to assist in providing design services for the development and implementation of an Intelligent Transportation System (ITS) along the Southwest Arterial / U.S. 52 Corridor. Passed, approved and adopted this 19th day of January 2021. , 0 4,e Roy D. ol, Mayor Attest: rly �� Adrienne N. Breitfelder, City Clerk SHORT FORM AGREEMENT BETWEEN OWNER AND HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES AGREEMENT NUMBER 2021-1 THIS AGREEMENT is made as of this day of January, 2021, between City of Dubuque, IA("OWNER") and HDR ENGINEERING, INC., ("ENGINEER" or CONSULTANT") for services in connection with the project known as Southwest Arterial Fiber and ITS Deployment("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 E ibit 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 Direct Labor Costs times a factor of 3.0 for the services of ENGINEER'S personnel engaged on the Project,plus Reimbursable Expenses, not to exceed 165,000. 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. Agreement for Professional Services 1/2020 19th Compensation terms are defined as follows: Direct Labor Cost shall mean salaries and wages, (basic and overtime)paid to all personnel engaged directly on the Project. The Direct Labor Costs and the factor applied to Direct Labor Costs will be adjusted annually as of the first of every year to reflect equitable changes to the compensation payable to Engineer. 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 E�ibit 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. Agreement for Professional Services 2 1/2020 SECTION VI. SPECIAL PROVISIONS IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day and year first written above. Ci of Dubu ue OWNER" BY: NAME: TITLE: ADDRESS: HDR ENGINEERING, INC. ENGINEER" BY: NAME: Matthew B. Tondl TITLE: Senior Vice President ADDRESS: 1917 S. 67' Street Omaha,NE 68106 Agreement for Professional Services 3 1/2020 Michael Van Milligen City Manager 50 West 13th Street Dubuque, IA 52001 Exhibit A Scope of Services Southwest Arterial Fiber Optic and Intelligent Transportation System (ITS) Deployment City of Dubuque, IA INTRODUCTION The City of Dubuque and the lowa Department of Transportation (DOT) executed an agreement in April of 2020 for the construction of a multi-duct conduit system and fiber optic network along the newly constructed Southwest Arterial (U.S. 52), from U.S. 20 to U.S. 61/151. The City will also install cameras at select locations to provide visual coverage of the SW Arterial and adjacent locations as identified in the agreement. In exchange for the City designing, letting, and maintaining the fiber optics and ITS devices (i.e., cameras), the DOT agreed to reimburse the City up to $1,500,000. The City will provide the DOT strands of fiber within the newly installed cable on U.S. 52 as well as strands in other locations within the City as identified in the agreement. HDR will assist the City by developing planning documents, plans, specifications and estimates (PS&E), and other construction support services as the Engineer of Record (EOR)for the construction of a multi-duct conduit system and fiber optic network along the newly constructed Southwest Arterial (U.S. 52), from U.S. 20 to U.S. 61/151. Potential future scope, including construction oversight and management and the production of as-built drawings, may be added as an addendum to this agreement. HDR proposes to implement this Project by conducting the following professional services. TASFt 't.0: Froiect Management and QC Task 1.1: Project Management HDR will provide contract administration, coordination and direction for the duration of this Contract. HDR will provide a project manager to serve as HDR's single point of contact with City of Dubuque for this Scope of Services. Monthly conference calls will be scheduled befinreen City of Dubuque and HDR throughout the project. Assumptions: • 12 months are assumed for invoicing and progress reporting for this Professional Services Agreement. Deliverables: • One (1) electronic copy of monthly invoice and progress reports. A-1 Task 1.2: Quality Review of Project Deliverables HDR will perform an independent quality review of project deliverables noted below. tASK 2.0: [TS Conce t of❑ erations and Basis of�esi n HDR will provide the following services to the City to develop an integrated Concept of Operations and Basis of Design for the Dubuque ITS deployment. The following sub-tasks are included as part of this task: Task 2.1: Planning Workshops, Coordination Meetings and Preliminary Site Visits HDR will conduct one planning workshop with the City of Dubuque. Other stakeholders will be invited to this workshop as identified by the City to provide input to the Basis of Design document. The planning workshop will be used to establish the design parameters, develop high-level design planning figures and coordinate agency needs into the plan. Pre-workshop agenda and exhibit preparation and post-workshop meeting notes development time of 8 staff-hours per workshop is assumed. HDR will perform a preliminary site visit with City staff and the roadway contractor to review project site conditions including ROW, locations with known underground rock, terrain, and bridge crossings. Additional coordination with the City and other stakeholders will be conducted via conference calls and e-mail dialogue. For purposes of this scope, up to 6 one-hour conference calls are assumed. Assumptions: • The stakeholder meeting will be held virtually with the City of Dubuque, lowa and will include three (3) HDR staff. • On-site preliminary assessment will be coordinated with the stakeholder meeting as practical. • Coordination with the lowa DOT and the lowa Communications Nefinrork will be required for this task. • Proposed in-person meetings and workshops may be held virtually via teleconference or screen share dependent on travel restrictions Task 2.2: Existing System Evaluation HDR will gather and review the existing as-built information from the City of Dubuque and the lowa DOT. HDR will document conditions of existing systems currently deployed within the project area, specifically at the lowa National Guard Armory near Old Highway Road and at the new lowa DOT maintenance garage near U.S. Highway 61 and Gateway Drive. As-built information and field visits will be used as the basis for establishing existing conditions. A-2 Task 2.3: ITS Basis of Design Memo HDR will develop an ITS Basis of Design Memo to reflect the input gathered from the City and lowa DOT, as well as the existing conditions. The Basis of Design Memo will summarize the pre- design efforts done by the City, lowa DOT, and HDR. The Basis of Design will provide design criteria that will be incorporated into the final design. The following sections are anticipated to be developed as part of the Basis of Design document: • Purpose • Project Area ■ Stakeholder Roles and Responsibilities • City/lowa DOT Agreement Requirements ■ Existing System Description ■ Required Interfaces • Design Criteria (including strand counts and allocation) • Implementation Plan Deliverables: ■ Draft Basis of Design Memo • Project corridor scroll plot + Final Basis of Design Memo TASK 3.0: Final Desiqn—ITS Svstem HDR will develop two (2) packages for the Dubuque SW Arterial ITS deployment: one (1) Infrastructure package and one (1) Fiber Splicing and Testing package. The City will be responsible for developing any site plans necessary for deployment of ITS devices at designated locations. The following sub-tasks are included as part of this task: Task 3.1: Infrastructure Package HDR will develop one (1) Infrastructure package that will include the design plans for conduit infrastructure, handholes, electrical service coordination and design, pole and foundation locations, cabinet locations and quantities. This effort includes Special Provisions and Cost Estimate. The Special Provisions will be developed for non-standard bid items and will outline material specifications, construction requirements and the method of ineasurement and basis of payment. HDR will conduct finro (2)design review meetings with the City at appropriate milestones in coordination with the City. One review meeting will be conducted as an onsite Field-Exam review to confirm the proposed alignment of the fiber conduit and identify possible ground conditions that need to be appropriately accommodated for in the design plans. The other design review meeting will be done virtually. Effort assumes up to three (3) HDR staff will attend each design A-3 review. Design review agenda and exhibit preparation and post-meeting notes development time of 8 staff-hours per review meeting is assumed. Task 3.2: Fiber Splicing and Testing Package HDR will develop one(1) Fiber Optic Installation and Terminations package that will include the design plans for installation of fiber optic cable along the SW Arterial in vacant conduit, fiber optic splicing, termination and splicing requirements, testing requirements, allowable working hours, coordination requirements and quantities. This effort includes Special Provisions and Cost Estimate. The Special Provisions will be developed for non-standard bid items and will outline material specifications, construction requirements and the method of ineasurement and basis of payment. HDR will conduct two (2)virtual (online) design review meetings with the City. Effort assumes up to two (2) HDR staff will attend the design review. Design review agenda and exhibit preparation and post-meeting notes development time of 8 staff-hours per workshop is assumed. Task 4.0: Gonstr�ction E� ineerin Su ort ■ Contractor Procurement Support—provide support to City staff in procuring and reviewing contractor cost proposals for Infrastructure and Fiber Installation projects. • Request for Information (RFI) Review/Responses— Up to 5 RFI's for Infrastructure plans and 5 RFI's for Fiber plans. • Submittal Reviews—Up to two (2) Submittal Packages for Infrastructure and two (2) Submittal Packages for Fiber Installation Plans. • Develop Plan Updates and Revisions—As needed up to two (2) plan revisions for Infrastructure plans and up to two (2)for Fiber Installation plans. • OLTS and OTDR Testing Reviews—Up to 2 Submittals. Assumptions: • ITS Infrastructure Package to be let by City of Dubuque via low bid procurement • Fiber Splicing and Testing packages will be award to contractors on a qualifications- based procurement by the City of Dubuque. • Coordination with the lowa DOT and the lowa Communications Network will be required for this task. • The documents will be provided in electronic format(pd�. • Proposed in-person meetings and workshops may be held virtually via teleconference or screen share dependent on travel restrictions A-4 PROJECT SCHEDULE Tentative project schedule is noted below. Assumed Notice to Proceed January 15, 2021 Draft Basis of Design Memo March 12, 2021 Final Basis of Design Memo April 5, 2021 Field Exam-Infrastructure Plan April 22, 2021 Final Infrastructure PS&E ' May 14, 2021 Preliminary FiberSplicing Plan Submittal July 1, 2021 Final Fiber Splicing Plan Submittal • August 1, 2021 HDR Contract Completion January 1, 2022 A-5 Exhibit B HDR Engineering, Inc. Terms and Conditions for Consulting Services 1. STANDARD OF PERFORMANCE 6. SERVICES AND INFORMATION The standard of care for all professional engineering, OWNER will provide all criteria and information pertaining to consulting and related services perFormed or furnished by OWNER's requirements for the project,including design CONSULTANT and its employees under this Agreement will objectives and constraints,space,capacity and performance be the care and skill ordinarily used by members of requirements,flexibility and expandability,and any budgetary CONSULTANT's profession practicing under the same or limitations. OWNER will also provide copies of any OWNER- similar circumstances at the same time and in the same furnished Standard Details,Standard Specifications,or Standard locality. CONSULTANT makes no warranties,express or Bidding Documents which are to be incorporated into the project. implied,under this Agreement or otherwise,in connection with CONSULTANT's services. OWNER will furnish the services of soils/geotechnical engineers or other consultants that include reports and appropriate 2. INSURANCE/INDEMNITY professional recommendations when such services are deemed CONSULTANT agrees to procure and maintain,at its expense, necessary by CONSULTANT. The OWNER agrees to bear full Worlcers'Compensation insurance as required by statute; responsibility for the technical accuracy and content of OWNER- Employers Liability of$250,000;Automobile Liability insurance furnished documents and services. of$1,000,000 combined single limit for bodily injury and property damage covering all vehicles,including hired vehicles,owned In pertorming professional engineering,consulting and related and non-owned vehicles;Commercial General Liability insurance services hereunder,it is understood by OWNER that of$1,000,000 combined single limit for personal injury and CONSULTANT is not engaged in rendering any type of legal, property damage;and Professional Liability insurance of insurance or accounting services,opinions or advice. Further,it $1,000,000 per claim for protection against claims arising out is the OWNER's sole responsibility to obtain the advice of an of the perFormance of services under this Agreement caused attorney,insurance counselor or accountant to protect the by negligent acts,errors,or omissions for which OWNER's legal and financial interests. To that end,the CONSULTANT is legally liable. OWNER shall be made an OWNER agrees that OWNER or the OWNER's representative additional insured on Commercial General and Automobile will examine all studies,reports,sketches,drawings, Liability insurance policies and certificates of insurance will be specifications,proposals and other documents,opinions or furnished to the OWNER. CONSULTANT agrees to indemnify advice prepared or provided by CONSULTANT,and will obtain OWNER for third party personal injury and property damage the advice of an attorney,insurance counselor or other claims to the extent caused by CONSULTANT's negligent acts, consultant as the OWNER deems necessary to protect the errors or omissions. However,neither Party to this Agreement OWNER's interests before OWNER takes action or forebears to shall be liable to the other Party for any special, incidental, take action based upon or relying upon the services provided by indirect,or consequential damages(including but not limited to CONSULTANT. loss of use or opportunity; loss of good will;cost of substitute �, RE-USE OF DOCUMENTS facilities,goods,or services;cost of capital;and/or fines or All documents,including all reports,drawings,specifications, penalties), loss of profits or revenue arising out of,resulting computer software or other items prepared or furnished by from,or in any way related to the Project or the Agreement CONSULTANT pursuant to this Agreement,are instruments of from any cause or causes, including but not limited to any such senrice with respect to the project. CONSULTANT retains damages caused by the negligence,errors or omissions,strict ownership of all such documents. OWNER may retain copies of liability or breach of contract. the documents for its information and reference in connection 3. ESTIMATES with the project;however,none of the documents are intended or Any estimates of project cost,value or savings provided by represented to be suitable for reuse by OWNER or others on CONSULTANT are intended to allow a comparative evaluation extensions of the project or on any other project. Any reuse between alternatives and do not constitute a detailed evaluation without written verification or adaptation by CONSULTANT for or prediction of actual project costs,value or savings. Any such the specific purpose intended will be at OWNER's sole risk and estimates are made on the basis of information available to without liability or legal exposure to CONSULTANT,and CONSULTANT and on the basis of CONSULTANT's experience OWNER will defend,indemnify and hold harmless and qualifications,and represents its judgment as an CONSULTANT from all claims,damages,losses and expenses, experienced and qualified professional engineer. However,since including attorney's fees,arising or resulting therefrom. Any CONSULTANT has no control over the impact of various factors such verification or adaptation will entitle CONSULTANT to that impact the actual project cost,value or savings, further compensation at rates to be agreed upon by OWNER and CONSULTANT does not guarantee that the actual project cost, CONSULTANT. value or savings will not vary from CONSULTANT's estimates. g, TERMINATION OF AGREEMENT 4. CONTROLLING LAW OWNER or CONSULTANT may terminate the Agreement,in This Agreement is to be governed by the law of the state where whole or in paR,by giving seven(7)days written notice to the CONSULTANT's services are performed. other party. Where the method of payment is"lump sum,"or cost reimbursement,the final invoice will include all services and 5. SUCCESSORS,ASSIGNS AND BENEFICIARIES expenses associated with the project up to the effective date of OWNER and CONSULTANT,respectively,bind themselves, termination. An equitable adjustment shall also be made to their partners,successors,assigns,and legal representatives to provide for termination settlement costs CONSULTANT incurs as the covenants of this Agreement. Neither OWNER nor a result of commitments that had become firm before CONSULTANT will assign,sublet,or transfer any interest in this termination,and for a reasonable profit for services performed. Agreement or claims arising therefrom without the written consent of the other.No third party beneficiaries are intended 9. SEVERABILIN under this Agreement. If any provision of this agreement is held invalid or unenforceable,the remaining provisions shall be valid and 7 (5/2020) binding upon the parties.One or more waivers by either party of In connection with the services under this Agreement, any provision,term or condition shall not be construed by the CONSULTANT agrees to comply with the applicable provisions other party as a waiver of any subsequent breach of the same of federal and state Equal Employment Opportunity for provision,term or condition. individuals based on color, religion,sex,or national origin,or disabled veteran,recently separated veteran,other protected 10. CONTROLLING AGREEMENT veteran and armed forces service medal veteran status, These Terms and Conditions shall take precedence over any disabilities under provisions of executive order 11246,and other inconsistent or contradictory provisions contained in any employment,statutes and regulations,as stated in Title 41 Part proposal,contract,purchase order,requisition,notice-to- 60 of the Code of Federal Regulations§60-1.4(a-fl, §60- proceed,or like document. 300.5(a-e),§60-741 (a-e). 11. INVOICES 14. EXECUTION CONSULTANT will submit monthly invoices for services This Agreement,including the exhibits and schedules made paR rendered and OWNER will make payments to CONSULTANT hereof,constitute the entire Agreement between CONSULTANT within thirty(30)days of OWNER's receipt of CONSULTANT's and OWNER,supersedes and controls over all prior written or invoice. oral understandings. This Agreement may be amended, CONSULTANT will retain receipts for reimbursable expenses in supplemented or modified only by a written instrument duly general accordance with Internal Revenue Service rules executed by the parties. pertaining to the suppoR of expenditures for income tax 15. ALLOCATION OF RISK purposes.Receipts will be available for inspection by OWNER's OWNER AND CONSULTANT HAVE EVALUATED THE RISKS auditors upon request. AND REWARDS ASSOCIATED WITH THIS PROJECT, If OWNER disputes any items in CONSULTANT's invoice for INCLUDING CONSULTANT'S FEE RELATIVE TO THE RISKS any reason,including the lack of suppoRing documentation, ASSUMED,AND AGREE TO ALLOCATE CERTAIN OF THE OWNER may temporarily delete the disputed item and pay the RISKS,SO,TO THE FULLEST EXTENT PERMITTED BY remaining amount of the invoice. OWNER will promptly notify �W,THE TOTAL AGGREGATE LIABILITY OF CONSULTANT of the dispute and request clarification and/or CONSULTANT(AND ITS RELATED CORPORATIONS, correction. After any dispute has been settled,CONSULTANT SUBCONSULTANTS AND EMPLOYEES)TO OWNER AND will include the disputed item on a subsequent,regularly THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE scheduled invoice,or on a special invoice for the disputed item LESSER OF$1,000,000 OR ITS FEE,FOR ANY AND ALL only. INJURIES,DAMAGES,CLAIMS,LOSSES,OR EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES)ARISING OUT OWNER recognizes that late payment of invoices results in OF CONSULTANT'S SERVICES OR THIS AGREEMENT extra expenses for CONSULTANT. CONSULTANT retains the REGARDLESS OF CAUSE(S)OR THE THEORY OF right to assess OWNER interest at the rate of one percent(1%) LIABILITY,INCLUDING NEGLIGENCE,INDEMNITY,OR per month,but not to exceed the maximum rate allowed by law, OTHER RECOVERY. on invoices which are not paid within thirty(30)days from the date OWNER receives CONSULTANT's invoice. In the event 16. LITIGATION SUPPORT undisputed portions of CONSULTANT's invoices are not paid In the event CONSULTANT is required to respond to a when due,CONSULTANT also reserves the right,after seven subpoena,government inquiry or other legal process related to (7)days prior written notice,to suspend the performance of its the services in connection with a legal or dispute resolution services under this Agreement until all past due amounts have proceeding to which CONSULTANT is not a party,OWNER been paid in full. shall reimburse CONSULTANT for reasonable costs in 12. CHANGES responding and compensate CONSULTANT at its then The aRies a ree that no chan e or modification to this standard rates for reasonable time incurred in gathering P 9 9 information and documents and attending depositions, Agreement,or any attachments hereto,shall have any force or hearings,and trial. effect unless the change is reduced to writing,dated,and made part of this Agreement. The execution of the change shall be 17. NO THIRD PARTY BENEFICIARIES authorized and signed in the same manner as this Agreement. This Agreement gives no rights or benefits to anyone other than Adjustments in the period of services and in compensation shall the OWNER and CONSULTANT and has no third-party be in accordance with applicable paragraphs and sections of beneficiaries.All work product will be prepared for the sole and this Agreement. Any proposed fees by CONSULTANT are exclusive use of the OWNER and is not for the benefit of any estimates to perform the services required to complete the third party and may not be distributed to,disclosed in any form project as CONSULTANT understands it to be defined. For to,used by,or relied upon by,any third party without the prior those projects involving conceptual or process development written consent of CONSULTANT,which consent may be services,activities often are not fully definable in the initial withheld in its sole discretion.OWNER agrees to indemnify planning. In any event,as the project progresses,the facts CONSULTANT and its officers,employees,subcontractors, developed may dictate a change in the services to be and affiliated corporations from all claims,damages,losses, performed,which may alter the scope. CONSULTANT will and costs,including but not limited to litigation expenses and inform OWNER of such situations so that changes in scope and attorney's fees arising out of or related to the unauthorized adjustments to the time of performance and compensation can disclosure,change,or alteration of such work product. be made as required. If such change,additional services,or suspension of senrices results in an increase or decrease in the Use of any report or any information contained therein by any cost of or time required for performance of the services,an party other than OWNER shall be at the sole risk of such party equitable adjustment shall be made,and the Agreement and shall constitute a release and agreement by such party to modified accordingly. defend and indemnify CONSULTANT and its affliates,officers, � employees and subcontractors from and against any liability for 13. EQUAL EMPLOYMENT AND NONDISCRIMINATION direct,indirect,incidental,consequential or special loss or damage or other liability of any nature arising from said party's Terms&Conditions for Consulting Services 2 (5/2020) use of such report or reliance upon any of its content.To the maximum extent permitted by law,such release from and indemnification against liability shall apply in contract,tort �in�luding negligence),strict liability,or any other theory of liability. 18. DISCLAIMER In preparing reports,CONSULTANT relies,in whole or in part, on data and information provided by the OWNER and third parties,which information has not been independently verified by CONSULTANT and which CONSULTANT has assumed to be accurate,complete,reliable,and current.Therefore,while CONSULTANT has utilized the customary professional standard of care in preparing this repoR,CONSULTANT does not warrant or guarantee the conclusions set forth in reports which are dependent or based upon data,information or statements supplied by third parties or the OWNER. 19 OPERATIONAL TECHNOLOGY SYSTEMS OWNER agrees that the effectiveness of operational technology systems("OT Systems")and features designed, recommended or assessed by CONSULTANT 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 System in accordance with applicable industry standards(i.e.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 evaivation for asset vuln�rabilities,imp�emen4ation and�pdate of apprapriate technical,physical,and aperatianal standards, and offline testing of all software/firmware patches/updates priorto 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 CONSULTATJT are intended to reduce the Ilk�lihood that OT Systems will be compromised by such incidents. However, CONSULTANT does not guarantee that OWNER's OT Systems are impenetraGle and OWNER agrees to waive any claims agains{CONS!}L7ANT resulting from any such incidents that relate to or affect OWNER's OT Systems. 20. FORCE MAJEURE COHSUI.TAN7 shall nvt be responsible ivr delays caused by factars beyond CQNSUL7ANT's reasanabie control,Including but not limifed to delays ba�ause of sErikes,loc3couts,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 furnish timely information or approve or disapprove of CONSULTANT's services or work product,ar delays caused hy faulty per#ormance by the OWNER's ar by contractars af any Iev�l or any other events or circumstances not within the reasonanle cantrv!of the party aff�cted,whether similar or dissimilar to any af t�e foregoing. When suc�delays beyond CONS!lLTAiVT's reasanable control occur,the OWNER agrees that CONSULTANT shall not be responsible for damages,nor shall CONSULTANT be deemed in default of this Agreement,and the parties will negotiate an equitable adjustment to CONSULTANT's schedule and/or compensation if impacted by the force majeure event or condition. Terms&Conditions for Consulting Services 3 (5/2020)