HomeMy WebLinkAboutRes2023-102 HDR EngineeringSponsored by: Sorensen
CITY OF SEWARD, ALASKA
RESOLUTION 2023-102
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A
CONTRACT WITH HDR ENGINEERING, INC., IN AN AMOUNT NOT TO
EXCEED $56,300 TO COMPLETE AND SUBMIT THE APPLICATION
AND RELATED MATERIALS NEEDED TO RENEW THE U.S.
FORESTRY SERVICE'S 50-YEAR, SPECIAL -USE PERMIT, AND
APPROPRIATING FUNDS
WHEREAS, the U.S. Forestry Service requires electric and communications utilities to
keep a special -use permit that allows the utilities to maintain, operate and construct facilities within
the rights -of -way located on forestry owned land; and
WHEREAS, this special -use permit is necessary for the Seward Electric System to
continue accessing transmission line corridors along Forest Service land between the Dave's Creek
Substation near Cooper Landing and into Seward; and
WHEREAS, Seward Electric System personnel unsuccessfully attempted to identify a
consultant/firm to complete this work before HDR Engineering was referred to the utility by the
Forestry Service; and
WHEREAS, HDR Engineering will review existing permits, amendments, as-builts,
access points, available operations and maintenance plans, and other related materials necessary
for the permit applications; and
WHEREAS, HDR Engineering will utilize GIS software to map and digitize transmission
rights -of -way and rights -of -way access points to support the permit application; and
WHEREAS, this agreement with HDR Engineering calls for a completion of its work and
a filing of the permit application no later than July 2024; and
WHEREAS, the renewal of the special -use permit will cover a 50-year period beginning
upon the date of approval.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA that:
Section 1. The City Manager is hereby authorized to enter a contract with HDR
Engineering, Inc. for work to complete and submit a special -use permit application with the U.S
Forest Service.
Section 2. Funding in the amount of $56,300 is hereby appropriated in the 2023 budget
CITY OF SEWARD, ALASKA
RESOLUTION 2023-102
from Electric reserves account no. 15000-0000-3400 to contracted services account no. 15000-
3000-7009.
Section 3. This resolution shall take effect immediately upon adoption.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 11`h day of
September 2023.
THE CITY OF SEWARD, ALASKA
fl-mc lA K
Sue McClure, Mayor
AYES: Osenga, DeMoss, Finch, Wells, Calhoon, McClure
NOES: None
ABSENT: Barnwell
ABSTAIN: None
VACANT: None
ATTEST:
Kris Peck
City Clerk
(City Seal)
,�11:1111/�,�,
.s` of S E {�y ''•.
•
SEAL
•gp, q rF OF P\'Ps`'s
�''�1fY1111111�`
1
1
1
City Council Agenda Statement
Meeting Date: September 11, 2023
To: City Council
From: Kat Sorensen, City Manager
Subject:
Resolution 2023-102: Authorizing The City Manager To Enter Into
A Contract With HDR Engineering, Inc., In An Amount Not To
Exceed $56,300 To Complete and Submit The Application And
Related Materials Needed To Renew The U.S. Forestry Service's
50-Year, Special -Use Permit, And Appropriating Funds
Background and justification
The U.S. Forestry Service requires electric and communications utilities to keep a special -use permit that
allows the utilities to maintain, operate and construct facilities within the rights -of -way located on forestry
owned land. For Seward Electric System (SES), the permit will cover transmission line corridors along
Forest Service land between the Dave's Creek Substation near Cooper Landing and into Seward.
SES reached out to industry contacts seeking recommendations for getting this work completed with no
success. The Forestry Service later referred SES to HDR Engineering, knowing HDR had completed similar
work for Forestry Services permits previously.
As part of its work, HDR Engineering will review existing permits, amendments, as-builts, access points,
available operations and maintenance plans, and other related materials necessary for the permit
applications. Considerable hours will also be spent utilizing GIS software to map and digitize transmission
line rights -of -way and rights -of -way access points to support the permit application.
Following are the schedule and deliverables from HDR Engineering (ENGINEER):
• The ENGINEER will ATTEND A VIRTUAL PROJECT KICK-OFF MEETING WITH THE
OWNER to review existing information (e.g., permits, spatial files, and operations/maintenance
plan.
• The ENGINEER will coordinate with the Forest Service prior to request existing permit files and
confirm use of the SF299 form for this project and the level of effort necessary for the application
and supporting documentation (e.g., Operations and Maintenance Plan; Vegetation Management
Plan).
• The ENGINEER will digitize transmission line centerline, ROW, structure locations, and access
points for use in spatial platforms (e.g., GIS, CAD) and to support permit application package.
• The ENGINEER will submit a Draft Operations and Maintenance Plan to the OWNER within 60
days of the Notice to Proceed.
• The ENGINEER will submit a revised Operations and Maintenance Plan to the OWNER within
two weeks after receipt of OWNER's comments.
• The ENGINEER will submit a Draft Vegetation Management Plan to the OWNER within 60
days of the Notice to Proceed.
• The ENGINEER will submit a revised Vegetation Management Plan to the OWNER within 60
days of the Notice to Proceed.
• The ENGINEER will submit a Draft Special Use Permit Application Package to the OWNER
within 60 days of the Notice to Proceed.
• The ENGINEER will submit a revised Special Use Permit Application Package to the OWNER
within two weeks after receipt of OWNER's comments.
• The ENGINEER will submit a revised Final Special Use Permit Application Package to the
OWNER and the Forest Service within one week of receipt of OWNER's comments.
• The ENGINEER will coordinate with the Forest Service after submittal.
This agreement with HDR Engineering calls for a completion of its work and filing of the permit application
no later than July 2024.
Comprehensive and Strategic Plan Consistency Information
This legislation is consistent with (citation listed):
Comprehensive Plan: 3.7.1.4 "Continue to upgrade and expand utilities to meet existing needs and
encourage future development."
Strategic Plan:
Other:
Certification of Funds
Total amount of funds listed in this legislation: $ 56,300
This legislation (✓):
Creates revenue in the amount of:
Creates expenditure in amount of:
Creates a savings in the amount of:
Has no fiscal impact
Funds are (✓):
Budgeted Line item(s):
Not budgeted
Not applicable
$
$ $56,300
$
Fund Balance Information
Affected Fund (✓): 15000-3000-7009
General
Boat Harbor
Motor Pool
Available Fund Balance
SMIC
Parking
Other
Electric
Water
$
Wastewater
Healthcare
Note: amounts are unaudited
Finance Director Signature:
'1 9a.it#
Yes
Attorney Signature:
Not applicable Comments:
Administration Recommendation
Adopt Resolution
Other:
EXHIBIT A
TASK ORDER 1
This Task Order pertains to an Agreement ("the Agreement") by and between The City of Seward
("OWNER"), and HDR Engineering, Inc. ("ENGINEER"), dated August 29, 2023. The
ENGINEER shall perform services on the project described below as provided herein and in the
Agreement. This Task Order shall not be binding until it has been properly signed by both parties.
Upon execution, this Task Order shall supplement the Agreement as it pertains to the project
described below.
TASK ORDER NUMBER: Task Order 1
PROJECT NAME: City of Seward Transmission Line — U.S. Forest Service Special Use Right -
of -Way Permit Renewal
PART 1.0 PROJECT DESCRIPTION:
The U.S. Forest Service issued a Special Use Permit in 1955 that granted the OWNER a right-of-
way (ROW) approximately 52 miles long and 60-foot-wide to construct, operate, and maintain a
3-phase 7.2/12.4 kilovolt (kV) electrical distribution line and a 69 kV transmission line. Records
indicate that the Forest Service has since authorized multiple amendments to this permit.
Amendment #5, issued in 1960, amended the permit area as 30-feet on either side of the power
line for 20.5 miles and Amendment #6, issued in 1977, included an adjustment to the ROW due
to a necessary realignment of the transmission line near mile 21 of the Seward Highway.
The OWNER, in coordination with the Forest Service, has determined that the existing Special
Use Permit for the ROW has expired and needs to be renewed. The section below describes the
ENGINEER's proposed scope of services, which includes developing an application to request
the Forest Service renew the Special Use Permit for the OWNER's transmission line that extends
between the Dave's Creek Substation and Seward.
PART 2.0 SCOPE OF SERVICES TO BE PERFORMED BY ENGINEER ON THE
PROJECT:
The ENGINEER will provide professional services for the tasks outlined below.
Task 1. Develop Application to Renew Forest Service -Issued Special Use Permit
The ENGINEER will develop an `application for transportation, utility systems,
teleconnnunications and facilities on federal lands and property' using standard form (SF299) to
request a 50-year permit renewal for continued operations and maintenance within portions of the
ROW that cross Forest Service lands.
As part of this effort, the ENGINEER will review existing permits, amendments, as-builts, access
points, available operations and maintenance plans, and other related materials necessary for the
permit application. The ENGINEER will digitize the transmission line, ROW, and access points,
based on available data sources, for use in maps to support the permit application if the OWNER
and/or Forest Service do not have those spatial data available. The ENGINEER assumes the
approximate boundaries developed during this spatial desktop effort will satisfy permit
requirements and therefore does not include costs associated with a land -based survey. Additional
scope and budget would be necessary if formal surveys are required.
Task Order 1 8/29/2023 Page 1
This scope includes time for a project kick-off meeting with the OWNER, an initial coordination
meeting with the Forest Service, development of a draft and final permit application, and
coordination with the Forest Service after submittal of the permit application package, as
necessary. This scope and cost estimate assumes that the OWNER will provide information
necessary for the ENGINEER to update the existing Operations and Vegetation Management
plans to current Forest Service requirements, which will be necessary to include with the SF299
application package.
Schedule & Deliverables:
• The ENGINEER will attend a virtual project kick-off meeting with the OWNER to
review existing information (e.g., permits, spatial files, and operations/maintenance plan).
• The ENGINEER will coordinate with the Forest Service prior to request existing permit
files and confirm use of the SF299 form for this project and the level of effort necessary
for the application and supporting documentation (e.g., Operations and Maintenance
Plan; Vegetation Management Plan).
• The ENGINEER will digitize transmission line centerline, ROW, structure locations, and
access points for use in spatial platforms (e.g., GIS, CAD) and to support permit
application package.
• The ENGINEER will submit a Draft Operations and Maintenance Plan to the OWNER
within 60 days of the Notice to Proceed.
• The ENGINEER will submit a revised Operations and Maintenance Plan to the OWNER
within two weeks after receipt of OWNER's comments.
• The ENGINEER will submit a Draft Vegetation Management Plan to the OWNER within
60 days of the Notice to Proceed.
• The ENGINEER will submit a revised Vegetation Management Plan to the OWNER
within 60 days of the Notice to Proceed.
• The ENGINEER will submit a Draft Special Use Permit Application Package to the
OWNER within 60 days of the Notice to Proceed.
• The ENGINEER will submit a revised Special Use Permit Application Package to the
OWNER within two weeks after receipt of OWNER'S comments.
• The ENGINEER will submit a revised Final Special Use Permit Application Package to
the OWNER and the Forest Service within one week of receipt of OWNER'S comments.
• The ENGINEER will coordinate with the Forest Service after submittal, as needed, to
respond to Forest Service questions and/or information requests.
Assumptions:
• The OWNER will provide the ENGINEER with existing permits, amendments, and
available data and reporting in a timely manner.
• The Forest Service will require an Operations and Maintenance Plan and Vegetation
Removal Plan as part of the SF299 application package.
• The OWNER will provide the ENGINEER with information necessary to develop an
Operations and Maintenance PIan and Vegetation Removal Plan.
• The initial coordination meeting with the Forest Service will not result in substantial
changes to the scope of work detailed herein.
• A site visit will not be required and therefore is not included in the cost estimate.
• If a site visit is required, the OWNER will cover the ENGINEER's time and materials for
the site visit and any additional reporting beyond what is covered herein.
• The Forest Service will complete any required National Environmental Policy Act
(NEPA) analyses, which would likely be covered under a Categorical Exclusion.
• Land survey costs are not included in this Task Order. If land surveys are necessary, the
OWNER will cover those costs.
Task Order 1 8/29/2023 Page 2
PART 3.0 OWNER'S RESPONSIBILITIES:
• The OWNER will provide the ENGINEER with existing permits, amendments, and
available data reporting in a timely manner.
• The OWNER will provide As -built drawings and/or sketches showing the location of
existing transmission line infrastructure and access points.
• The OWNER will provide spatial data for the transmission line infrastructure.
• The OWNER will provide the ENGINEER structure identification numbers for all
structures within the ROW, which will be necessary for the SF299 application.
• The OWNER will provide the ENGINEER information necessary to develop an
Operations and Maintenance Plan to be included in the SF299 application, including but
not limited to scheduled clearing and planned improvements.
• The OWNER will provide the ENGINEER information necessary to develop a
Vegetation Management Plan for use in the SF299 application.
• If a site visit is required, the OWNER will cover the ENGINEER's time and materials for
the site visit and any additional reporting beyond what is covered herein.
• The OWNER will provide all appropriate land permissions/permits prior to the
ENGINEER if site visits are required.
PART 4.0 PERIODS OF SERVICE:
Upon execution, this task order is effective through July 2024.
PART 5.0 ENGINEER's FEE:
The total amount of the services anticipated in this task order four scope is $56,298.46, as
detailed in the attached spreadsheet. Compensation to HDR shall be on a time and materials basis
and changes to the total budget amount on this task order must be agreed to in writing by both
parties.
This Task Order is executed this 29th day of August, 2023.
The City of Seward HDR ENGINEERING, INC.
"OWNER" "ENGINEER"
BY: BY:
NAME: NAME:
TITLE: TITLE:
ADDRESS: ADDRESS:
Matthew Stone, PE
Vice President
582 E 36th Ave Suite 500
Anchorage. AK 99503
Task Order 1 8/29/2023 Page 3
Time and Materials
Ln
con
C)
u
O
"
O
't
Off,
N
be
.:
�C
-r
G
x
b
be
r•
VI
All
,o
M'r
be
00
O
00
b9
�O
2Q
oc
-
be
^
M
to
b3
b
00
r-
M,
en
bbe
V
MLin
i-
VC
b9
n
VD
"
be
a`
N
-4
cr
00
bbe
00
N
Lri
a
bbe
<l'
.G
C
N
be
4C
Q
N
in
be•�
ca
O O
3
Vl
°C
N
h
69
0'0
69
O
—
be
vD
M
'n
b3
oc
V1
—
b9
�
—
r-
b4
h-
N
be
oC
cn
vD
b...)-
v^,
r.
N
SI
M
"
be
N
oc-
r,
SI
Y1
' ^
SI.
—
Tr
rl
n
SI
m
Ch
N
jn
be
cr_
x
Un
en--
--
a
48
'
o
V
'n
00
0'
24
0
n
^.
N
r-
M
7
a
-
O
m C.-
Hall, Calley
Nicole
et
b3
00
oc
o0
N
r
et
0
.r
b9
Tech Editor
Adair, Tina M
00US
kr,
16
y0
N
O
N
,:,
N
'D
N
N
n
Ch.,
p,
c,
M
b3
Senior GIS
Analyst
O
0
G 2
O
0
a
z
O
N
'0
00
en
—
Tr
Tr
N
N
O
N
N
b3
GIS Analyst
U J
.o .= 75
�✓� U
8V7
O
r
t
7
M
7
12°�Y
CC
en
`D
CC
-,
0
00
WI
W
b9
Project
Manager
F
.
U
�r
6A
eq
0�
N
Tr
PC
Tr
OC
N
ar..
O
O
N
`.
0Np
a
N
M
63
d
O
:3
0
C
O ^.
,-J
U
i
o
30
O
N
N
6.1
29
N
N
N
N
N
--
VD
Tr
N
N
O
N
r+',
C
63
Powerline ROW Permit Renewal
Project Role
Employee
2023 Rates
Develop Special Use Permit Application
Project kick-off meeting with City
Review existing information
Develop spatial data & maps
Meet with Forest Served
Draft O&M Plan
F.
O
Draft Vegetation Management Plan
Final Vegetation Management Plan
Develop Draft Permit Application
Develop Final Permit Application
Forest Service Coordination
Project Manageinentl
;
V
N
ti
D
L
I4N
G
O
b
m
A
N
i
DC
'x
°
L
m
1
u
C,/
U
al
BASIC SERVICES - TOTAL COSTS'
.Y
LC
0
z
MASTER SHORT FORM AGREEMENT FOR PROFESSIONAL SERVICES
AGREEMENT NUMBER
THIS AGREEMENT is made as of this 29th day of August, 2023, between The
City of Seward, hereinafter referred to as "OWNER", and HDR Engineering, Inc.,
hereinafter referred to as "ENGINEER" or "CONSULTANT," for engineering services as
described in this Agreement.
WHEREAS, OWNER desires to retain ENGINEER, a professional engineering
firm, to provide professional engineering, consulting and related services ("Services") on
one or more projects in which the OWNER is involved; and
WHEREAS, ENGINEER desires to provide such services on such projects as
may be agreed, from time to time, by the parties;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
SECTION I. PROJECT TASK ORDER
1.1
This Agreement shall apply to as many projects as OWNER and ENGINEER
agree will be performed under the teens and conditions of this Agreement. Each
project ENGINEER performs for OWNER hereunder shall be designated by a
"Task Order." A sample Task Order is attached to this Agreement and marked as
Exhibit "A". No Task Order shall be binding or enforceable unless and until it
has been properly executed by both OWNER and ENGINEER. Each properly
executed Task Order shall become a separate supplemental agreement to this
Agreement.
1.2 In resolving potential conflicts between this Agreement and the Task Order
pertaining to a specific project, the terms of this Agreement shall control.
1.3 ENGINEER will provide the Scope of Services as set forth in Part 2 of each Task
Order.
SECTION IL RESPONSIBILITIES OF OWNER
In addition to the responsibilities described in paragraph 6 of the attached "HDR
Engineering, Inc. Terms and Conditions for Professional Services," OWNER shall have
the responsibilities described in Part 3 of each Task Order.
Contracts Manual MSOEA - 1 5/2019
SECTION III. COMPENSATION
Compensation for ENGINEER's Services shall be in accordance with Part 5 of each Task
Order, and in accordance with paragraph 11 of the attached HDR Engineering, Inc.
Terms and Conditions.
SECTION IV. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as ofthe day
and year first written above.
The City of Seward
"OWNER"
BY:
NAME:
TITLE:
ADDRESS:
HDR ENGINEERING, INC.
"ENGINEER"
BY:
NAME: Matthew Stone, PE
TITLE: Vice President
ADDRESS: 582 E 36th Ave Suite 500
Anchorage, AK 99503
Contracts Manual MSOEA - 2 5/2019
EXHIBIT A
TASK ORDER
This Task Order pertains to an Agreement by and between
("OWNER"), and HDR Engineering, Inc. ("ENGINEER"), dated
20, ("the Agreement"). Engineer shall perform services on the project described
below as provided herein and in the Agreement. This Task Order shall not be binding
until it has been properly signed by both parties. Upon execution, this Task Order shall
supplement the Agreement as it pertains to the project described below.
TASK ORDER NUMBER:
PROJECT NAME:
PART 1.0 PROJECT DESCRIPTION:
PART 2.0 SCOPE OF SERVICES TO BE PERFORMED BY ENGINEER ON THE
PROJECT:
PART 3.0 OWNER'S RESPONSIBILITIES:
PART 4.0 PERIODS OF SERVICE:
PART 5.0 ENGINEER'S FEE:
PART 6.0 OTHER:
Contracts Manual MSOEA - 3 5/2019
This Task Order is executed this day of , 20
HDR ENGINEERING, INC.
"OWNER" "ENGINEER"
BY: BY:
NAME: NAME:
TITLE: TITLE:
ADDRESS: ADDRESS:
Contracts Manual MSOEA - 4 5/2019
EXHIBIT B
TERMS AND CONDITIONS
Contracts Manual MSOEA - 5 5/2019
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. 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. The employees of
both parties are intended third party beneficiaries of this waiver of
consequential damages.
3. OPINIONS OF PROBABLE COST
Any opinions of probable project cost or probable construction cost
provided by ENGINEER are made on the basis of information
available to ENGINEER and on the basis of ENGINEER's
experience and qualifications, and represents its judgment as an
experienced and qualified professional engineer. However, since
ENGINEER has no control over the cost of labor, materials,
equipment or services furnished by others, or over the contractor(e)
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 of Alaska.
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-fumished Standard Details,
Standard Specifications, or Standard Bidding Documents which are
to be incorporated into the project.
OWNER will furnish the services of soilslgeotechnical 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. Upon payment in full of all amounts due to
ENGINEER pursuant to this Agreement, OWNER shall have
ownership of all such documents. Engineer may retain copies of the
documents for its information and reference in connection with the
project; Any alterations of modifications made to the documents by
OWNER of the documents for purposes other than those intended
hereunder shall 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.
Upon OWNER's request, Engineer may be able to modify or adapt
1 (5/2023)
the document as requested by OWNER; however, 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 ail 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 (CERC1A),
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 shalt obligate
OWNER to indemnify any individual or entity from and against the
consequences of that individual's or entity's sole negligence or
willful misconduct.
16. EXECUTION
This Agreement, including the exhibits and schedules made part
hereof, constitute the entire Agreement between ENGINEER and
Terms & Conditions for Professional Services 2 (5/2023)
OWNER, supersedes and controls over all prior written or oral
understandings. This Agreement may be amended, supplemented
or modified only by a written instrument duly executed by the
parties.
17. RESERVED
18. LITIGATION SUPPORT
In the event ENGINEER is required to respond to a subpoena,
government inquiry or other legal process related to the services in
connection with a legal or dispute resolution proceeding to which
ENGINEER is not a party, OWNER shall reimburse ENGINEER for
reasonable costs in responding and compensate ENGINEER at its
then standard rates for reasonable time incurred in gathering
information and documents and attending depositions, hearings,
and trial.
19. NO THIRD PARTY BENEFICIARIES
Except as otherwise provided in this Agreement, no third party
beneficiaries are intended under this Agreement. In the event a
reliance letter or certification is required under the scope of
services, the parties agree to use a form that is mutually acceptable
to both parties.
29. UTILITY LOCATION
If underground sampling/testing is to be performed, a local utility
locating service shall be contacted to make arrangements for all
utilities to determine the location of underground utilities. In addition,
OWNER shall notify ENGINEER of the presence and location of any
underground utilities located on the OWNER's property which are
not the responsibility of private/public utilities. ENGINEER shall take
reasonable precautions to avoid damaging underground utilities that
are properly marked. The OWNER agrees to waive any claim
against ENGINEER and will indemnify and hold ENGINEER
harmless from any claim of liability, injury or loss caused by or
allegedly caused by ENGINEER's damaging of underground utilities
that are not properly marked or are not called to ENGINEER'S
attention prior to beginning the underground sampling/testing.
21. UNMANNED AERIAL SYSTEMS
If operating UAS, ENGINEER will obtain all permits or exemptions
required by law to operate any UAS included in the services.
ENGINEER's operators have completed the training, certifications
and licensure as required by the applicable jurisdiction in which the
UAS will be operated. OWNER will obtain any necessary
permissions for ENGINEER to operate over private property, and
assist, as necessary, with all other necessary permissions for
operations.
22. OPERATIONAL TECHNOLOGY SYSTEMS
OWNER agrees that the effectiveness of operational technology
systems and features designed, recommended or assessed by
ENGINEER (collectively "OT Systems") are dependent upon
OWNER's continued operation and maintenance of the OT Systems
in accordance with all standards, best practices, laws, and
regulations that govem the operation and maintenance of the OT
Systems. OWNER shall be solely responsible for operating and
maintaining the OT Systems in accordance with applicable laws,
regulations, and industry standards (e.g. ISA, NISI, etc.) and best
practices, which generally include but are not limited to, cyber
security policies and procedures, documentation and training
requirements, continuous monitoring of assets for tampering and
intrusion, periodic evaluation for asset vulnerabilities, implementation
and update of appropriate technical, physical, and operational
standards, and offline testing of all software/firmware
patches/updates prior to placing updates into production.
Additionally, OWNER recognizes and agrees that OT Systems are
subject to internal and external breach, compromise, and similar
incidents. Security features designed, recommended or assessed
by ENGINEER are intended to reduce the likelihood that OT
Systems will be compromised by such incidents. However,
ENGINEER does not guarantee that OWNER's OT Systems are
impenetrable.
23. FORCE MAJEURE
ENGINEER shall not be responsible for delays caused by factors
beyond ENGINEER's reasonable control, including but not limited to
delays because of strikes, lockouts, work slowdowns or stoppages,
government ordered industry shutdowns, power or server outages,
acts of nature, widespread infectious disease outbreaks (including,
but not limited to epidemics and pandemics), failure of any
governmental or other regulatory authority to act in a timely manner,
failure of the OWNER to furnish timely information or approve or
disapprove of ENGINEER's services or work product, or delays
caused by faulty performance by the OWNER's or by contractors of
any level or any other events or circumstances not within the
reasonable control of the party affected, whether similar or dissimilar
to any of the foregoing. When such delays beyond ENGINEER's
reasonable control occur, the OWNER agrees that ENGINEER shall
not be responsible for damages, nor shall ENGINEER be deemed in
default of this Agreement, and the parties will negotiate an equitable
adjustment to ENGINEER's schedule and/or compensation if
impacted by the force majeure event or condition.
Terms & Conditions for Professional Services 3 (5/2023)