SHORT FORM AGREEMENT RE NORTH GREENWOOD REDEVELOPMENT STRATEGY PROJECT
SHORT FORM AGREEMENT BETWEEN OWNER AND
HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES
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THIS AGREEMENT is made as of this Jt.j day of~eptemher, 2001,between City
of Clearwater ("OWNER") a Florida municipal government corporation, with principal offices at
112 Osceola Ave., Clearwater, FL 33756 and HDR ENGINEERING, INe., ("ENGINEER") a
Nebraska corporation, with principal offices at 8404 Indian Hills Drive, Omaha, Nebraska,
68114 for services in connection with the project known as the North Greenwood
Redevelopment Strategy ("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 for Professional Services," 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 ofthe 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 oflump
sum. The amount ofthe lump sum is seventy thousand Dollars ($70,000).
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.
Compensation terms are defined as follows:
Agreement for Professional Services
1-1999
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Per Diem shall mean an hourly rate equal to Payroll Cost/Direct Labor Cost times a multiplier of
ili/A) (number) to be paid as total compensation for each hour an employee works on the project,
plus Reimbursable Expense.
Payroll Cost shall mean salaries and wages, (basic and overtime) paid to all personnel engaged
directly on the Project, plus the cost of customary and statutory benefits including, but not
limited to, social security contributions, unemployment, excise and payroll taxes, worker's
compensation, health and retirement benefits, sick leave, and vacation and holiday pay applicable
thereto. For this Agreement, the amount of customary and statutory benefits of all personnel will
be considered equal to thirty-five percent (35%) of salaries and wages.
Direct Labor Cost shall mean salaries and wages, (basic and overtime) paid to all personnel
engaged directly on the Project.
Reimbursable Expense shall mean the actual expenses incurred directly or indirectly in
connection with the Project for transportation travel, subconsultants, subcontractors, computer
usage, telephone, telex, shipping and express, and other incurred expense. ENGINEER will add
ten percent (10%) to invoices received by ENGINEER from sub consultants and subcontractors to
cover supervision, administrative, and insurance expenses.
Cost-Plus-Fixed Fee shall mean Cost plus a Fixed Fee.
Cost, as used in "Cost-Plus-Fixed Fee," shall mean Direct Labor Cost plus Overhead Costs, plus
Reimbursable Expense.
Overhead Costs, as used in "Cost-Plus-Fixed Fee," shall mean indirect costs, which include
payroll and administrative expenses. For this Agreement, overhead costs shall be N/A percent
(N/A%) of Direct Labor Cost.
Fixed Fee shall mean a fixed amount of fee that is added to the Cost in a Cost-Plus-Fixed Fee
basis of payment. The sum of Cost and Fixed Fee shall be the compensation for the Scope of
Services. The Costs may vary, but the Fixed Fee shall remain the same provided the Scope of
Services does not change.
Lump Sum shall mean a fixed amount which shall be the total compensation agreed upon in
advance for Scope of Services.
Percentage shall mean a percentage of the actual construction cost designed plus additive change
orders. This shall be the total compensation for Scope of Services.
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.
Agreement for Professional Services
2
1-1999
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Unless otherwise stated in this Agreement, the rates of compensation for ENGINEER'S services
have been agreed to in anticipation ofthe orderly and continuous progress ofthe 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 ofthe day and
year first written above.
"OWNER"
BY:
NAME:
TITLE:
ADDRESS:
HDR ENGINEERING, INC.
"ENGINEER"
BY: ~s.J ..
NAME: ~ v(. " . 8CtW~,:. PG
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TITLE: ~"'"~"" l4'iA ;:::"<<~I-
ADDRESS: 2Z,,'2. tv'. tJesl- .f"~"re.. BlvJ. ~Z..s-d
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Agreement for Professional Services
3
1-1999
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AGREEMENTS BY CITY OF CLEARWATER:
Countersigned:
Approved as to form:
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Pamela K. Akin
Assistant City Attorney
Agreement for Professional Services
IP
4
1-1999
EXHIBIT A
SCOPE OF SERVICES
North Greenwood Redevelopment Strategy
Scope of Services & Fee Estimate
Task 1. City/Team Coordination $12.480
This task will include a kick-off meeting to refine the expected agendas,
accomplishments and schedule of Advisory Committee meetings and desired contents of
the report product. In addition, it is recommended that the HDR Project Manager and
City Staff meet monthly to coordinate and discuss project status and upcoming tasks.
Monthly reports and quarterly EDA reports are also included. This task also includes
Project Management, invoicing and other client coordination as required during the
project timeframe.
Task 2. Data Collection & Presentation
$30.000
Economic Data (Urbanomics) $20,000
Collect and present data relating to existing businesses, market potential for job creating
businesses, a "void analysis" identifying retail/services not presently in the area but
supportable in this marketplace. The City will provide 2000 census data including socio-
economic data available to date. A detailed scope for Urbanomics is attached as 9/26/01
memo. This will cover three primary topics:
. Community Commercial Needs and Prospects
. Economic/Job Development Needs and Prospects
. Catalytic Projects
. Presentation at one Advisory Committee meeting.
Planning & Infrastructure Data Analysis & Audit (HDR) $10,000
Previous studies and plans for the North Greenwood area will be reviewed and audited to
identify accomplishments and recommendations not implemented. The audit will be
presented in matrix form to outline actions and recommendations implemented to date.
In addition, a map of ongoing or proposed projects will be prepared to update and obtain
a better understanding of existing conditions and trends. This information will be
compiled from various City sources and individual meetings with staff and stakeholders
as outlined in Task 3.
A general evaluation will be conducted to include: land use, zoning and other regulatory
conditions; physical and infrastructure conditions affecting development potential and
economic development. The Audit will be compared with this general evaluation of
updated conditions. Previous strategies or recommendations that were not implemented
will be reassessed. In addition, an assessment of new strategies that address problems,
opportunities and objectives will be drafted.
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The City will provide electronic base maps for the consultant's use and all base maps
prepared by the consultant will be provided in programs compatible to the City of
Clearwater Engineering Department.
Task 3. Stakeholder Involvement $19.480
Three workshops will be conducted with an Advisory Committee composed of North
Greenwood stakeholders and appointed by the City. In addition, a significant portion of
this task will include individual interviews with business owners, developers, church and
non-profit leaders working within the project area. Due to the significant amount of
public and private activity ongoing within the immediate area, it is estimated that the
consultants will conduct 10-12 interview sessions with individuals or representatives
from community stakeholders, bankers, non-profits, churches, etc. with current or
proposed projects in North Greenwood.
Of the three workshops, one will be in the form of a site visit/tour to a similar area in
Florida with economic development and redevelopment successes. HDR will make the
arrangements for and attend the site visit with the stakeholders. The primary objectives
ofthe three workshops will be as follows:
Advisory Committee Meeting#l
· Audit Results
· Economic Analysis Results
· Summary of problems and opportunities for the area based on data
collection and audit
· Desired objectives
Advisory Committee Meeting #2
· Tour of successful project similar to N. Greenwood
· Educating groups on currently available tools
· Brainstorm a variety of strategies
Advisory Committee Meeting #3
· Present draft strategies for North Greenwood
· Obtain consensus on the most appropriate and realistic
Task 4. North Greenwood Redevelopment Strateey & Final Report $ 8.040
The final work product will be the North Greenwood Redevelopment Strategy which has
Advisory Committee consensus. Toward this end, the Team will refine redevelopment
and economic development strategies based on input from the Advisory Committee and
prepare the final report. The report will be a user-friendly brief, brochure or summary
which highlights the process of this project and the recommended actions, strategies and
projects.
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Such strategies will include catalyst projects, regulatory changes, new funding or
programs, and responsibilities for other strategies, actions or projects recommended.
One original and one unbound copy of the draft document will be provided to the City for
review and comment. The scope includes one revision effort and provision of one bound
original and one unbound original of the final document.
TOTAL
$70,000
It is understood from the RFP that expenses are to be included within the $70,000 budget.
The Team will abide by this commitment for ordinary project expenses. Other pre-
development tasks identified in the RFP are well within our Team's qualifications.
Addition of such services to the scope will be discussed with the staff to redefine the
scope and fees where necessary.
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TIME LINE
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Exhibit B
MEMORANDUM
TO:
Susan Swift, HDR- Tampa (via E-mail)
FROM:
Ken Creveling, URBANOMICS
SUBJECT:
North Greenwood Revitalization Strategy n
Outline of Economic Analyses and Strategies
DATE:
September 26, 2001
This updates my earlier scope outline dated 8/24 to include a housing market assessment as extra
services for a fee of $7,000 plus meetings. A budget estimate for all tasks is also included. I
have divided all market/economic consulting services into four master tasks, as follows:
TASKS
1. Community Commercial Needs and Prospects. This area of study will focus primarily
on identifying needs and opportunities for developing a viable neighborhood/community
shopping and service area in or immediately adjacent to the North Greenwood
community. This will involve assessment of market realities and opportunities on
Greenwood Avenue and opportunities along key local arterials. Specific tasks include:
-- Survey of existing business activities and climate, including interviews with business
owners and landlords.
-- Estimation of retail expenditure potentials of residents within a defined potential trade
area by type of business.
-- Identification of unmet needs expressed in square footage of building space by type of
business.
-- Identification of community and market realities affecting property investments and
business operations.
-- Identification of entrepreneurial training needs and workable incentives to property
and business owners to invest and operate in the area.
2. Economic (Job) Development Needs and Prospects. This area of study will focus on
value-added job-generating activities which may be possible to promote primarily at the
edges and on the periphery of the North Greenwood community, including locations
along the railroad, Drew Street, and Ft. Harrison Avenue. Specific tasks include:
-- Inventory of existing commercial, industrial, and institutional facilities and operations
in this area which provide a nucleus for business expansion.
-- Interviews with selected businesses and institutions to assess the general business
environment, expansion expectations, and use oflabor from the North Greenwood
community.
-- Inventory of existing available and potential development sites.
-- Review of countywide and citywide economic development activities and programs to
determine which of their business targets and strategies can apply to urban communities
and development sites.
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-- Identification of opportunities and needs related to business expansion and attraction,
including types business and institutional activities suited to the area, their employment
characteristics, and needs for site assembly and incentives.
3. Catalytic Projects. This area of study will focus on identifying those individual projects,
including community commercial, economic development, and housing projects, having
the best market/economic prospects and which would impact surrounding properties and
the community at large. These opportunities will emerge from the. above studies.
Specific tasks include:
-- Identification of potential project(s), including type, size, location, type of
owner/operator, and nature of economic benefits to the community and city.
-- Identification of implementation and operating needs and requirements, including site
factors and public improvements and incentives needed to leverage private investments.
-- Identification of potential funding sources for these improvements and incentives.
4. Client and Community Meetings. We are available to meet as needed with City and
community representatives throughout the study for the purposes of discussing local
issues, assessments, and recommendations relative to local housing and commercial
needs and development strategies and job-related economic development affecting the
community. One formal community meeting is included in the $20,000 base budget.
Meetings with the staff will be included if they can be coordinated with travel to do field
work and research.
BUDGET
Based on our understanding of the area, work done to date, and objectives of this study process,
we propose the following budget for market/economic consulting services:
1.
Community Commercial Needs, Prospects, and Strategy Input:
$9,000
2.
Economic Development Needs, Prospects, and Strategy Input:
$5,500
3.
Catalytic Projects -- Definition, Assessment, Implementation:
$4,000
4.
Presentations and Community Meetings (@ $1,500 each):
$1,500
Total Estimated Cost:
$20,000
Exhibit C
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SUBCONSULTANT PARTICIPATION
Urbanomics
Task 1. TwoMeetings with Staff (to coincide with scheduled fieldwork)
Task 2. Economic Data Collection & Presentation
Task 3. Attendance at one Advisory Comm. Meetings
Task 4. Limited Assistance with Final Report
( catalyst projects)
included
$ 20,000
included
included
Trent Green, R.A.
Task 1. Attend Four Meetings with Staff (8 hrs)
Task 2. Assist as needed (8 hrs)
Task 3. Attend and Assist with Preparation for
Advisory Committee Meetings (40 hrs)
Task 4. Assist in Final Report (8 hrs)
$ 708
$ 708
$3,540
$ 708
TOTALS
Urbanomics
Trent Green
HDR
$20,000
$ 5,664
$44,336
Assumptions:
Ken Creveling attendance at one Advisory Committee meeting and 1-2 meeting with staff is
included in above fees. Additional public meetings will be considered additional services.
Trent Green's participation is assumed at $88.50 per hour.
Typical overhead expenses included in above fees.
Revised 10/4/01
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EXHIBIT B
TERMS AND CONDITIONS
1 (4/2000)
HDR Engineering, Inc.
Terms and Conditions for Professional Services
1. 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.
2. INSURANCE
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. Upon request, 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 the claims covered by ENGINEER's insurance.
3. OPINIONS OF PROBABLE COST (COST ESTIMATES)
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.
4. 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
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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.
5. 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 expandability, and any budgetary limitations.
OWNER will also provide copies of any OWNER-furnished 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-furnished 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 AND ASSIGNS
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 without the
written consent ofthe other.
8. 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
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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 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.
9. TERMINATION OF AGREEMENT
OWNER or ENGINEER may terminate the Agreement, in whole or in part, by giving
seven (7) days written notice, if the other party substantially fails to fulfill its obligations
under the Agreement through no fault of the terminating 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.
1 O. 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 ofthe same provision, term or condition.
11. INVOICES
ENGINEER will submit monthly invoices for services rendered and OWNER will make
prompt payments in response to ENGINEER's invoices. 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 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 forty-five (45) days
from the date of the 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
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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, and other
employment, statutes and. regulations.
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: (i) retains
appropriate specialist consultant( s) or contractor( s) to identify and, as appropriate, abate,
remediate, or remove the hazardous materials; and (ii) 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
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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 sub consultants 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 (i) 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 (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' 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 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. LIMITATION OF LIABILITY
ENGINEER's and its employees' total liability to OWNER for any loss or damage,
including but not limited to special and consequential damages arising out of or in
connection with the performance of services or any other cause, including ENGINEER's
and its employees' professional negligent acts, errors, or omissions, shall not exceed the
greater of $50,000 or the total compensation received by ENGINEER hereunder, except
as otherwise provided under this Agreement, and OWNER hereby releases and holds
harmless ENGINEER and its employees from any liability above such amount.
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.
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