SHORT FORM AGREEMENT FOR PROFESSIONAL SERVICESSHORT FORM AGREEMENT BETWEEN OWNER AND
HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES
AGREEMENT NUMBER
THIS AGREEMENT is made as of this iv day o k 4
20, between City of Clearwater, a Florida municipal corporation "OWNER"), with
principal offices at P.O. Box 4748, Clearwater, Florida 33758, and HDR ENGINEERING,
INC., ("ENGINEER" or "CONSULTANT") for services in connection with the project
known as Ft. Harrison Complete Streets Study ("Project");
WHEREAS, OWNER desires to engage ENGINEER to provide professional
engineering, consulting and related services ("Services") in connection with the Project;
and
WHEREAS, ENGINEER desires to render these Services as described in
SECTION I, Scope of Services.
NOW, THEREFORE, OWNER and ENGINEER in consideration of the mutual
covenants contained herein, agree as follows:
SECTION I. SCOPE OF SERVICES
ENGINEER will provide Services for the Project, which consist of the Scope of Services as
outlined on the attached Exhibit A.
SECTION II. TERMS AND CONDITIONS OF ENGINEERING SERVICES
The HDR Engineering, Inc. Terms and Conditions, which are attached hereto in Exhibit B,
are incorporated into this Agreement by this reference as if fully set forth herein.
SECTION III. RESPONSIBILITIES OF OWNER
The OWNER shall provide the information set forth in paragraph 6 of the attached "HDR
Engineering, Inc. Terms and Conditions for Professional Services."
SECTION IV. COMPENSATION
Compensation for ENGINEER'S services under this Agreement shall be on the basis of
lump sum. The amount of the lump sum is $84,968.00, which shall be paid in monthly
installments as contemplated by Section 11 of the Terms and Conditions attached as
Exhibit B to this Agreement.
The amount of any sales tax, excise tax, value added tax (VAT), or gross receipts tax that
may be imposed on this Agreement shall be added to the ENGINEER'S compensation as
Reimbursable Expenses.
Compensation terms are defined as follows:
Lump Sum shall mean a fixed amount which shall be the total compensation agreed upon in
advance for Scope of Services.
SECTION V. PERIOD OF SERVICE
Upon receipt of written authorization to proceed, ENGINEER shall perform the services
within a reasonable period of time period(s) described in Exhibit A.
Unless otherwise stated in this Agreement, the rates of compensation for ENGINEER'S
services have been agreed to in anticipation of the orderly and continuous progress of the
project through completion. If any specified dates for the completion of ENGINEER'S
services are exceeded through no fault of the ENGINEER, the time for performance of
those services shall be automatically extended for a period which may be reasonably
required for their completion and all rates, measures and amounts of ENGINEER'S
compensation shall be equitably adjusted.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the date set forth above.
By:
Approved as to form:
Wiried
Michael P. Fuino
Assistant City Attorney
Attest:
u sk
Print Name: Li u k le$ . V <k
/�s (Secretary
CITY OF CLEARWATER,FLORIDA
lAb_IAA-fu.
William B. Horne II
City Manager
Rosemarie Call
City Clerk
HDR ENGINEERING, INC.
B
Print
Title:
V 4,An
Jennifer E. Hunt, PE
Vice President
EXHIBIT A
SCOPE OF SERVICES
Scope, Schedule & Budget
INTRODUCTION
This scope of work identifies the tasks to be performed by HDR Engineering, Inc. in collaboration
with the City of Clearwater on the Ft. Harrison Avenue Complete Streets Study. The goals of the
study are to:
• develop improvements concepts for the Ft. Harrison Ave corridor that advance Clearwater's
mobility, safety, and place making objectives;
• build understanding, consensus, and support among key community and City stakeholders
around an achievable improvement program for the corridor; and
• define a set of priority improvement projects that can move forward into preliminary
engineering and design.
The study is focused on conditions along Ft. Harrison Ave from the southern City of Clearwater
limits to Alt US 19 but will also consider conditions on other connecting and parallel streets
impacting Ft. Harrison. A map of the Ft. Harrison corridor is shown below.
PROJECT TASKS
1.0 Project Management
1.1 Project Accounting
Monthly invoicing will be prepared and submitted with the amount determined based on the
percentage of each task completed.
1.2 Progress Calls
Up to four (4), 1 -hour progress calls will be held with City staff. (These calls do not include on-
going calls with staff to coordinate project activities.) HDR will prepare agendas for the call and
brief call notes following call.
Deliverables: Monthly Invoices, Progress Call Agendas and Notes
2.0 Corridor Conditions & Context
2.1 Existing Conditions
The City will be responsible for collecting, analyzing, and summarizing existing condition and
context information for the entire corridor and surrounding area. The City will provide the
results of this data collection and analyses effort in summary narrative and maps as well as in an
initial existing conditions PowerPoint presentation for use in the first PVT meeting. Information
collected, analyzed, and summarized by the City will address existing physical conditions, traffic
operations, safety, demographics, land use, ownership, and development with 1/4 mile of the
corridor.
HDR will work with the City to identify available datasets for use in this task; assist in identifying
an appropriate level of effort to guide the City's data collection, analysis, and summarization
work; and assist in developing a consistent format for PowerPoint presentation.
Deliverables: The City will prepare narrative, maps, and a PowerPoint presentation summarizing
the findings of the Existing Conditions phase of the project. The presentation will be utilized
during PVT Meeting 1 under Task 3.0.
3.0 Initial Design Strategies & Concepts
3.1 Initial Corridor Segmentation & Best Practice Slides
Based on data collected and analyzed by the City and reviewed by HDR under Task 2.0, HDR will
work with City staff to define logical corridor segments. Segmentation may be based on several
factors including, but not limited to, character and context, land use, existing typical sections,
and available right-of-way. It is assumed up to 4 segments will be identified. HDR will prepare
section graphics showing typical existing conditions by segment.
HDR will develop best practice slides for use in the first Project Visioning team meeting showing
examples of improvements implemented along corridors with similar issues, users, constraints,
and opportunities.
3.2 Project Visioning Team Meeting #1 & Walkshop
HDR will lead a Project Visioning Team (PVT) meeting with City staff and key stakeholders as
identified by the City. HDR will assist the City in identifying stakeholders. During the meeting, the
City will present a summary of existing conditions and HDR staff will lead participants in
discussions around topics related to the corridor's context, physical conditions, safety,
destination accessibility, operationalissues, and image.
On the day of the PVT meeting, HDR will also conduct a limited Walkshop of a segment of the
corridor with members of staff and the PVT. The Walkshop will be designed as an opportunity
for HDR staff, City staff, and PVT members to share observations about corridor conditions,
discuss challenges, and brainstorm opportunities for improvements.
HDR will provide assistance in identifying participants for the PVT and work with staff to prepare
an agenda for the meeting and itinerary for the Walkshop. City staff will be responsible for
inviting PVT members, determining meeting locations, and providing all logistical support and
equipment for all PVT meetings, including the Walkshop.
3.3 Design Concepts
Typical Sections by Segment
Based on information gathered during Task 2.0 and additional feedback from City staff and the
PVT, HDR will develop up to eight (8) typical section alternatives (assuming two per each of the
four corridor segments). These typical section alternatives will be illustrated in Sketchup.
Intersection & Lane Elimination Concepts
HDR will prepare up to four (4) alternative intersection configuration concepts (assuming two
alternatives per two intersections) and one (1) proposed concept for a lane elimination at the
south end of the corridor. The intersection concepts will address conditions in the south end of
the study area at the S. Fort Harrison Ave and Belleview Blvd and the S. Fort Harrison Ave and
Lakeview Rd intersections. The lane elimination concept will address the removal of one lane in
each direction along South Fort Harrison Ave from Belleair Rd to Belleview Blvd.
Safety & Mobility improvements
HDR will identify additional opportunities to implement various safety and mobility
improvements along the corridor, including but not limited to consolidating/reducing driveway
conflict; completing ADA upgrades; improving pedestrian, bicycle, and trail connections; and
improving pedestrian crossing conditions. Improvements will be identified by type and location,
and diagrams and information from similar projects in the region and across the U.S. will be used
to illustrate and describe recommended improvements.
Deliverables: HDR will prepare a PowerPoint presentation describing existing conditions by
segment and best practices for review by staff and use during PVT Meeting #1. HDR will prepare
a presentation reviewing the design concepts prepared under Task 3.3 for review by staff and
for use during PVT Meeting #2 and the Public Workshop.
4.0 Traffic Analysis for Key Concepts
4.1 Traffic Data Review & Volume Development
To support the traffic evaluation of concepts described below, HDR will review traffic count data
provided by the City. It is assumed the City will provide 72 -hour traffic machine counts
(approach volumes at 15 -minute increments) for the following intersections for use in traffic
modeling:
• Ft Harrison Ave/Belleview Blvd
• Ft Harrison Ave/Belleair Rd
For the Belleview Blvd and Belleair Rd intersections with Ft. Harrison, HDR will develop existing
year (2019) design hour AM and PM turning movement volumes based on the count information
provided by the City. A growth rate will be used to develop the future year (2040) design hour
AM and PM turning movement volumes.
4.2 Traffic Analysis
The traffic analysis will be divided into two components, a traffic operations analysis and a
corridor capacity analysis. Under the traffic operations analysis, an existing configuration will be
analyzed in the existing year (2019) using Synchro software. A No Build Alternative and two Build
Alternatives will be analyzed in the future year (2040). One of the Build Alternatives may be a
preliminary roundabout concept analyzed with Sidra software.
The traffic analysis will be divided into two study areas.
Fort Harrison Ave/Belleview Blvd Intersection. This intersection will be analyzed to
determine a configuration that allows the southern leg to transition from a 4 -lane section to
a 2 -lane section under the proposed road diet alternative.
Fort Harrison Ave from Belleair Rd to Belleview Blvd Study Area. A corridor capacity
analysis for this section of the corridor will be completed using Generalized Service Volume
Tables to determine the existing LOS of the corridor using both DDHVs and AADTs. Existing
year and future year analysis will be performed on the existing 4 -lane corridor and on the
proposed 2 -lane corridor.
Deliverables: HDR will prepare a Traffic Analysis Memorandum that documents the volume
development methodology and traffic analysis results. Delay and queue results will be provided
for the traffic operations analysis component, while capacity comparison tables will be provided
for the corridor analysis.
5.0 Concept Review & Refinement
5.1 Public Workshop
HDR will assist City staff in planning for a public workshop at which HDR will present design
concepts and strategies developed under the tasks above, identify project refinements, and
identify project preferences and priorities. HDR will prepare presentation material for use in
workshop, presentation material, and facilitate discussion. HDR will assist with meeting setup
and take down, and will also prepare a summary of feedback received during the workshop.
As with the PVT meetings, the City will take the lead scheduling the workshop; procuring the
location and equipment; preparing, printing and distributing notifications, flyers and workshop
handouts,; and developing mailing lists and distributing invitations to elected officials, other
public officials, private property owners, and tenants.
5.2 Preferred Concepts & Priorities
Based on feedback from the Public Workshop and direction from the City, HDR will develop final
concept plan exhibits in Sketchup showing recommended typical sections by segment (4 total),
recommended intersection improvements (2 total), and other potential improvements selected
for implementation (number to be determined). For the recommended improvements, HDR will
prepare an engineer's opinion of probable costs based on FDOT standard pay items. HDR also
will prepare a preliminary implementation plan indicating project priorities, costs, and potential
project phasing.
5.3 Project Visioning Team Meeting #2
HDR will lead a meeting of the PVT to review feedback from the Public Workshop and identify
project refinements, preferred design treatments, other recommendations for improvements
along the corridor, and preliminary project priorities.
5.4 Draft Project Report
HDR will compile information from earlier tasks in a draft project summary report. The report
will be prepared in InDesign. The report will include a summary of corridor issues and
opportunities, a description of project alternatives and recommendations, and a review of
project priorities, costs, and potential project phasing. To meet the City's goal of establishing an
agreed upon format for the report early in the project and minimize revisions during this stage
of the project, HDR will provide an example report format to the City for review and approval
during Task 3.0.
The City will be responsible for gathering and consolidating comments on interim deliverables
and the report draft from departments and stakeholders into a single document for HDR's use in
finalizing the report.
5.5 City Council Presentations
HDR will participate in a work session of the City Council to present the preferred concepts and
priorities and the draft project report. HDR will work with staff to determine the timing of these
meetings/presentations.
5.6 Final Report
HDR will prepare a final draft of the project report. HDR will provide an electronic copy in Adobe
Acrobat format along with the original InDesign files and linked graphics.
Deliverables: Public Workshop and City Council meeting materials. Draft and Final Project
Report.
POTENTIAL ADDITIONAL SERVICES
The following services are not included under this proposal but may be provided by HDR as
additional services.
• Additional Traffic & Crash Analysis. HDR could complete additional traffic or crash analyses
of corridor segments, individual intersections, or off -corridor improvements to evaluate
impacts on traffic operations. Analyses could be completed by location, corridor segment,
for the entire corridor, or for intersecting and parallel corridors.
• Design & Engineering Services. HDR could complete more detailed levels of data collection
and analyses, survey, ADA compliance assessments, utility survey and coordination, design
and engineering, environmental assessments, right-of-way assessments, or other services
required to advance concepts for preferred project improvements and priorities.
• Additional Public Engagement & Communications. HDR could provide a wider range of
engagement and communication related services to build understanding and support for
preferred project improvements and priorities.
SCHEDULE
This study has an estimated duration of 9 months from Notice to Proceed (NTP) with a
completion date of no later than June 30, 2020.
BUDGET
The services described above will be accomplished for the lump sum total fee indicated the
BUDGET SHEET below. The lump sum total fee includes labor costs plus direct expenses for
project -related travel and printing. Any tasks not specifically included within this scope of
services will be considered additional work and will require an amendment to the contract for
supplemental fee.
BUDGET SHEET
Ft Harrison Complete Streets
Project
Manager
Chief
Profession.
I
Project
Professional
Professional
Professional
Tech/Analyst
Secretary/
Clerical
Total Hours/
Fee
TASK
Labor Rate
$165
$267
$148
5108
$100
585
565
1.0 PROJECT MANAGEMENT
1.1 Project Accounting
4
2
0
0
0
0
8
14
1.2 Progress Meetings or Calls
8
4
0
0
0
0
0
12
Hrs
12
6
0
0
0
0
8
26
Fee
$1,980.00
$1,602.00
$0.00
$0.00
$0.00
$0.00
$520.00
$4,102.00
2.0 CORRIDOR COfOmONS &
CONTEXT
2.1 Existing Conditions (City Lead)
4
2
0
0
4
0
0
10
Hrs
4
2
0
0
4
0
0
10
Fee
$660.00
$534.00
$0.00
$0.00
$400.00
$0.00
$0.00
$1,594.00
3.0 INITIAL DESIGN STRATEGIES A
CONCEPTS
3.1 Initial Corridor Seg & BP Slides
12
2
0
0
16
0
0
30
3.2 PVT Meeting #1 & Walkshop
8
8
0
0
16
0
0
32
33.3 Design Concepts
24
6
0
12
154
0
8
204
Hrs
44
16
0
12
186
0
8
266
Fee
$7,260.00
$4,272.00
$0.00
$1.296.00
$18,600.00
$0.00
$520.00
$31,948.00
4.0 TRAFFIC ANALYSIS FOR KEY
CONCEPTS
4.1 Traffic Data Review & Volume Dev
4
2
2
6
0
16
4
34
4.2 Traffic Analysis
4
0
2
24
0
40
0
70
Hrs
8
2
4
30
0
56
4
104
Fee
$1,320.00
$534.00
$592.00
$3,240.00
$0.00
$4,760.00
$260.00
$10,706.00
5.0 CONCEPT RENEW A REFINEMENT
5.1 Public Workshop
6
4
0
8
24
8
0
50
5.2 Preferred Concepts & Priorities
16
2
0
4
40
8
4
74
5.3 PVT Mtg 2
4
4
0 0
16
0 0
24
5.4 Draft Project Report
8
4
4 24
40
16 0
96
5.5 City Council Presentations
4
2
0 8
0
0 0
14
5.6 final Report
4
2
0 16
12
2 4
40
Hrs
42
18
4 60
132
34 8
298
Fee
$6,930.00
54.806.00
5592.00 $6,480.00
513,200.000 +
$2,890.00_4_ $52000
$35,418.00
Total Mrs
110
44
8 102
322
90 28
704
Total Fee
$18,150.00
511,748.00
51,184.00 $11,016.00
$32,200.00
$7,650.00 51,820.00
$83,768.00
DIRECT EXPENSES
$1,200.00
TOTAL FEE
$84,968.00
EXHIBIT B
TERMS AND CONDITIONS
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/INDEMNITY
ENGINEER agrees to procure and maintain, at its expense, Workers'
Compensation insurance as required by statute; Employer's Liability
of $250,000; Automobile Liability insurance of $1,000,000 combined
single limit for bodily injury and property damage covering all vehicles,
including hired vehicles, owned and non -owned vehicles; Commercial
General Liability insurance of $1,000,000 combined single limit for
personal injury and property damage; and Professional Liability
insurance of $1,000,000 per claim for protection against claims
arising out of the performance of services under this Agreement
caused by negligent acts, errors, or omissions for which
ENGINEER is legally liable. If flying an Unmanned Aerial System
(UAS or drone), ENGINEER will procure and maintain aircraft
unmanned aerial systems insurance of $1,000,000 per occurrence.
OWNER shall be made an additional insured on Commercial
General and Automobile Liability insurance policies and certificates
of insurance will be furnished to the OWNER. Subject to Florida
Statute 768.28, ENGINEER agrees to indemnify OWNER for third
party personal injury and property damage claims to the extent
caused by ENGINEER's negligent acts, errors or omissions.
However, neither Party to this Agreement shall be liable to the other
Party for any special, incidental, indirect, or consequential
damages (including but not limited to loss of use or opportunity;
loss of good will; cost of substitute facilities, goods, or services;
cost of capital; and/or fines or penalties), loss of profits or revenue
arising out of, resulting from, or in any way related to the Project or
the Agreement from any cause or causes, including but not limited
to any such damages caused by the negligence, errors or
omissions, strict liability or breach of contract. Nothing contained
herein is intended to serve as a waiver by the OWNER of its
sovereign immunity, to extend the liability of the OWNER beyond
the limits set forth in Section 768.28, Florida Statues, or be
construed as consent to be sued by third parties.
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 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, ASSIGNS AND BENEFICIARIES
OWNER and ENGINEER, respectively, bind themselves, their
partners, successors, assigns, and legal representatives to the
covenants of this Agreement. Neither OWNER nor ENGINEER will
assign, sublet, or transfer any interest in this Agreement or claims
arising therefrom without the written consent of the other. No third
party beneficiaries are intended under this Agreement.
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 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
1 (5/2019)
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 to the other party. Where
the method of payment is "lump sum," or cost reimbursement, the
final invoice will include all services and expenses associated with the
project up to the effective date of termination. An equitable
adjustment shall also be made to provide for termination settlement
costs ENGINEER incurs as a result of commitments that had become
firm before termination, and for a reasonable profit for services
performed.
10. SEVERABILITY
If any provision of this agreement is held invalid or unenforceable,
the remaining provisions shall be valid and binding upon the parties.
One or more waivers by either party of any provision, term or
condition shall not be construed by the other party as a waiver of any
subsequent breach of the same provision, term or condition.
11. INVOICES
ENGINEER will submit monthly invoices for services rendered and
OWNER will make payments to ENGINEER within thirty (30) days of
OWNER's receipt of ENGINEER's invoice.
ENGINEER will retain receipts for reimbursable expenses in general
accordance with Internal Revenue Service rules 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 thirty (30) days from the date OWNER receives
ENGINEER's invoice. In the event undisputed portions of
ENGINEER's invoices are not paid when due, ENGINEER also
reserves the right, after seven (7) days prior written notice, to
suspend the performance of its services under this Agreement until
all past due amounts have been paid in full.
12. CHANGES
The parties agree that no change or modification to this Agreement,
or any attachments hereto, shall have any force or effect unless the
change is reduced to writing, dated, and made part of this
Agreement. The execution of the change shall be authorized and
signed in the same manner as this Agreement. Adjustments in the
period of services and in compensation shall be in accordance with
applicable paragraphs and sections of this Agreement. Any
proposed fees by ENGINEER are estimates to perform the services
required to complete the project as ENGINEER understands it to be
defined. For those projects involving conceptual or process
development services, activities often are not fully definable in the
initial planning. In any event, as the project progresses, the facts
developed may dictate a change in the services to be performed,
which may alter the scope. ENGINEER will inform OWNER of such
situations so that changes in scope and adjustments to the time of
performance and compensation can be made as required. If such
change, additional services, or suspension of services results in an
increase or decrease in the cost of or time required for performance
of the services, an equitable adjustment shall be made, and the
Agreement modified accordingly.
13. CONTROLLING AGREEMENT
These Terms and Conditions shall take precedence over any
inconsistent or contradictory provisions contained in any proposal,
contract, purchase order, requisition, notice -to -proceed, or like
document.
14. EQUAL EMPLOYMENT AND NONDISCRIMINATION
In connection with the services under this Agreement, ENGINEER
agrees to comply with the applicable provisions of federal and state
Equal Employment Opportunity for individuals based on color,
religion, sex, or national origin, or disabled veteran, recently
separated veteran, other protected veteran and armed forces service
medal veteran status, disabilities under provisions of executive order
11246, and other employment, statutes and regulations, as stated in
Title 41 Part 60 of the Code of Federal Regulations § 60-1.4 (a -f), §
60-300.5 (a -e), § 60-741 (a -e).
15. HAZARDOUS MATERIALS
OWNER represents to ENGINEER that, to the best of its
knowledge, no hazardous materials are present at the project site.
However, in the event hazardous materials are known to be
present, OWNER represents that to the best of its knowledge it
has disclosed to ENGINEER the existence of all such hazardous
materials, including but not limited to asbestos, PCB's, petroleum,
hazardous waste, or radioactive material located at or near the
project site, including type, quantity and location of such
hazardous materials. It is acknowledged by both parties that
ENGINEER's scope of services do not include services related in
any way to hazardous materials. In the event ENGINEER or any
other party encounters undisclosed hazardous materials,
ENGINEER shall have the obligation to notify OWNER and, to the
extent required by law or regulation, the appropriate governmental
officials, and ENGINEER may, at its option and without liability for
delay, consequential or any other damages to OWNER, suspend
performance of services on that portion of the project affected by
hazardous materials until OWNER: (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
Response, Compensation, and Liability Act of 1990 (CERCLA),
which are or may be encountered at or near the project site in
connection with ENGINEER's services under this Agreement. If
ENGINEER's services hereunder cannot be performed because of
the existence of hazardous materials, ENGINEER shall be entitled
to terminate this Agreement for cause on 30 days written notice.
To the fullest extent permitted by law, OWNER shall indemnify
and hold harmless ENGINEER, its officers, directors, partners,
employees, and subconsultants from and against all costs, losses,
and damages (including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals, and all
court or arbitration or other dispute resolution costs) caused by,
arising out of or resulting from hazardous materials, provided that
(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.
Terms & Conditions for Professional Services 2 (5/2019)
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. ALLOCATION OF RISK
OWNER AND ENGINEER HAVE EVALUATED THE RISKS AND
REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING
ENGINEER'S FEE RELATIVE TO THE RISKS ASSUMED, AND
AGREE TO ALLOCATE CERTAIN OF THE RISKS, SO, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE TOTAL
AGGREGATE LIABILITY OF ENGINEER (AND ITS RELATED
CORPORATIONS, SUBCONSULTANTS AND EMPLOYEES) TO
OWNER AND THIRD PARTIES GRANTED RELIANCE IS LIMITED
TO THE LESSER OF $1,000,000 OR ITS FEE, FOR ANY AND
ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES
(INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF
ENGINEER'S SERVICES OR THIS AGREEMENT REGARDLESS
OF CAUSE(S) OR THE THEORY OF LIABILITY, INCLUDING
NEGLIGENCE, INDEMNITY, OR OTHER RECOVERY.
18. LITIGATION SUPPORT
In the event ENGINEER is required to respond to a subpoena,
govemment inquiry or other legal process related to the services in
connection with a legal or dispute resolution proceeding to which
ENGINEER is not a party, OWNER shall reimburse ENGINEER for
reasonable costs in responding and compensate ENGINEER at its
then standard rates for reasonable time incurred in gathering
information and documents and attending depositions, hearings,
and trial.
19. NO THIRD PARTY BENEFICIARIES
No third party beneficiaries are intended under this Agreement. In
the event a reliance letter or certification is required under the scope
of services, the parties agree to use a form that is mutually
acceptable to both parties.
20. UTILITY LOCATION
If underground sampling/testing is to be performed, a local utility
locating service shall be contacted to make arrangements for all
utilities to determine the location of underground utilities. In addition,
OWNER shall notify ENGINEER of the presence and location of any
underground utilities located on the OWNER's property which are not
the responsibility of private/public utilities. ENGINEER shall take
reasonable precautions to avoid damaging underground utilities that
are properly marked. The OWNER agrees to waive any claim
against ENGINEER and will indemnify and hold ENGINEER
harmless from any claim of liability, injury or loss caused by or
allegedly caused by ENGINEER's damaging of underground utilities
that are not property marked or are not called to ENGINEER's
attention prior to beginning the underground sampling/testing.
21. UNMANNED AERIAL SYSTEMS
If operating UAS, ENGINEER will obtain all permits or exemptions
required by law to operate any UAS included in the services.
ENGINEER's operators have completed the training, certifications
and licensure as required by the applicable jurisdiction in which the
UAS will be operated. OWNER will obtain any necessary
permissions for ENGINEER to operate over private property, and
assist, as necessary, with all other necessary permissions for
operations.
22. OPERATIONAL TECHNOLOGY SYSTEMS
OWNER agrees that the effectiveness of operational technology
systems ("OT Systems") and features designed or recommended by
ENGINEER 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 evaluation for asset vulnerabilities, implementation
and update of appropriate technical, physical, and operational
standards, and offline testing of all software/firmware
patches/updates prior to placing updates into production.
Additionally, OWNER recognizes and agrees that OT Systems are
subject to intemal and external breach, compromise, and similar
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 Systems are impenetrable and
OWNER agrees to waive any claims against ENGINEER resulting
from any such incidents that relate to or affect OWNER's OT
Systems.
Terms & Conditions for Professional Services 3 (5/2019)