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HomeMy WebLinkAboutProfessional Services Agreement - Black & Veatch Corporation - WWTP Electrical Evaluation Studyt . I Date Name BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM November 6, 2017 Jacob M. Klosinski Purchasing ® Carol Kurzhal Department Utilities Wastewater ❑ Agreement ❑ Contract ❑ Proposal ❑ Addendum ® Professional Services ❑ Resolution ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Change Order No. ❑ CIO & PCA No. ❑ PCA ❑ Ease/Encroach. ❑ Traffic Control I-1 Other: Company or Vendor Name Black & Veatch Corporation (Indianapolis, IN) New Vendor ❑ Yes ® No ❑ If Yes, Approved by Purchasing MBEIWBE Contractor ❑ MBE ❑ WBE MBEIWBE Contractor Requested ❑ No ❑ Yes Name of Company Project Name Wastewater Treatment Plant - Electrical Evaluation Study Project Number not assigned Funding Source 2017 Wastewater Engineering Account Account No. 641-0630-793-31-02 Amount $ 183,572.00 Terms of Contract Lump Sum Purpose/Description The Division of Utilities recommends the approval of a Professional Services Agreement with Black & Veatch for the Wastewater Treatment Plant Electrical Evaluation Study. The evaluation will assess electrical infrastructure and capital planning. ❑ Required Contractor's Certification Form Attached (Non - Collusion, Non -Discrimination, Non -Debarment, E-Verify, Iran, etc. Required For;Chan' e Orders Only Amount of ❑ Increase $ ❑ Decrease $ Previous Amount $ Current Percent of Change: % New Amount $ Total Percent of Change: % Dispersal After Approval Copy Original ® ❑ Al Greek, Director of Utilities ® ❑ Jacob M. Klosinski, Assistant City Engineer ® ❑ Carol Kurzhal, Director of Financial Services, Environmental Services INTER -OFFICE MEMORANDUM DEPARTMENT OF PUBLIC WORKS DIVISION OF UTILITIES TO: Members of the Board of Public Works Eric Horvath, Director of Public Works Catherine Fanello, Board of Public Works Attorney FROM: Al Greek, Director of Utilities Jacob M. Klosinski, Assistant City Engineer SUBJECT: Agenda Request Form -- Professional Services Agreement Wastewater Treatment Plant Electrical Evaluation Study DATE: November 6, 2017 The Division of Utilities is requesting the Board of Public Works approval of a Professional Services Agreement with Black & Veatch Corporation for the Wastewater Treatment Plant Electrical Evaluation Study. Background and Purpose The Wastewater Treatment Plant was constructed in 1954 and has undergone many upgrades over the years. Electrical evaluations are a necessary part of continuous improvement and this condition assessment will help the City develop a concise capital planning for phased upgrades to the aging electrical infrastructure at the Wastewater Treatment Plant. This process was identified in the 2013 Facilities Plan as part of the City's long term capital improvements. Major needs were identified in the 2013 Facilities Plan (as well as previous facilities plans) to address back-up generator power needs for processes that are not tied into a generator power supply. The City has been impacted by power outages which, in turn, affect the City's ability to maintain optimal treatment when processes are out of service. Coupled with aging wiring and electrical components (cabinetry, programmable logic controllers, etc.), it is necessary to begin planning for improvements to these systems. This Electrical Evaluation is an extension of the City's commitments for WWTP Upgrades for future flow conditions at the Wastewater Treatment Plant as required by the Consent Decree. It is important that the electrical systems at the WWTP be evaluated an upgraded, where necessary, in preparation for future conditions. The funding sources for this study have been appropriated in the 2017 Wastewater Engineering Account (641-0630-793-31-02). If there are questions regarding the subject project, please contact Al Greek (Ext. 4210) or Jacob M. Klosinski (Ext. 9496) at the Division of Utilities. 0 � 1p: r MAN munwa muvm MWA A. 11 I This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Laws and Regulations. AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by ACEC A�.i�'-wtar {'uerzteec, nk TNcJ wvww comFANI ASCEAmerican Society of Civil Engineers AC of America TK AS`•(XIATED GFNIRN CONTR.ICTORSC�F &,-01Ch Qwtlly People. Quality� w. National Society of Professional Engineers Profession! Engineers In Private Practice AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS EJCDC E-500 Standard Farm of Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. TABLE OF CONTENTS Page ARTICLE 1 — SERVICES OF ENGINEER..................................................................................................... 1 1.01 Scope.............................................................................................................................................1 ARTICLE 2 — OWNER'S RESPONSIBILITIES............................................................................................ 1 2.01 General..........................................................................................................................................1 ARTICLE 3 — SCHEDULE FOR RENDERING SERVICES........................................................................ 2 3.01 Commencement............................................................................................................................ 2 3.02 Time for Completion.................................................................................................................... 2 ARTICLE 4 — INVOICES AND PAYMENTS................................................................................................ 2 4.01 Invoices......................................................................................................................................... 2 4.02 Payments....................................................................................................................................... 2 ARTICLES OPINIONS OF COST............................................................................................................... 3 5.01 Opinions of Probable Construction Cost...................................................................................... 3 5.02 Designing to Construction Cost Limit.......................................................................................... 3 5.03 Opinions of Total Project Costs................................................................................................... 3 ARTICLE 6 — GENERAL CONSIDERATIONS............................................................................................ 4 6.01 Standards of Performance...:......................................................................................................... 4 6.02 Design Without Construction Phase Services.............................................................................. 5 6.03 Use of Documents......................................................................................................................... 5 6.04 Insurance....................................................................................................................................... 7 6.05 Suspension and Termination........................................................................................................ 8 6.06 Controlling Law............................................................................................................................ 9 6.07 Successors, Assigns, and Beneficiaries........................................................................................ 9 6.08 Dispute Resolution......................................................................................................................10 6.09 Environmental Condition of Site................................................................................................10 6.10 Indemnification and Mutual Waiver..........................................................................................11 6.11 Miscellaneous Provisions........................................................................................................... I 1 ARTICLE7 — DEFINITIONS........................................................................................................................ 12 7.01 Defined Terms............................................................................................................................ 12 ARTICLE 8 — EXHIBITS AND SPECIAL PROVISIONS........................................................................... 15 8.01 Exhibits Included........................................................................................................................15 8.02 Total Agreement.........................................................................................................................16 8.03 Designated Representatives........................................................................................................16 8.04 Engineer's Certifications.............................................................................................................16 ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of Nov. 14 , 2017 ("Effective Date") between Board of Public Works, City of South Bend, Indiana ("Owner") and Black & Veatch Corporation ("Engineer") Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Wastewater Treatment Plant Electrical Evaluation "Project"). Engineer's services under this Agreement are generally identified as follows: The purpose of this effort is to evaluate the condition of electrical infrastructure at the Wastewater Treatment Plant and provide recommendations for necessary clectrical.ypgrades.to maintain a high level of service during wet weather events, where treatment capacity of 48 mgd (normal) to 77 m d(peak) conditions are critical to treatment operations. Owner and Engineer further agree as follows: ARTICLE I — SERVICES OF ENGINEER 1.01 Scope A. Engineer shall provide, or cause to be provided, the services set forth herein and in Exhibit A. ARTICLE 2 — OWNER'S RESPONSIBILITIES 2.01 General A. Owner shall have the responsibilities set forth herein and in Exhibit B. B. Owner shall ,pay Engineer as set forth in Exhibit C. Page 1 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Owner shall be responsible for, and Engineer may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use such requirements, programs, instructions, reports, data, and information in performing or furnishing services under this Agreement. ARTICLE 3 — SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering services as of the Effective Date. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer's services is impaired, or Engineer's services are delayed or suspended, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. C. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer's performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled, as its sole remedy, to the recovery of direct damages, if any, resulting from such failure. ARTICLE 4 — INVOICES AND PAYMENTS 4.01 Invoices A. Preparation and Submittal of .Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 35 days of receipt. 4.02 Payments A. Application to Interest and Principal: Payment will be credited first to any interest owed to Engineer and then to principal. B. Failure to Pay: If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer's invoice, then: Page 2 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 1 inefeased 0 Y rate of intefest permitted by e if less) frefnsAid thiptieth e and 2. Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner has paid in full all non -disputed amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. C. Disputed Invoices: If Owner contests an invoice, Owner shall promptly advise Engineer of the specific basis for doing so, may withhold only that portion so contested, and must pay the undisputed portion. D. Legislative Actions: If after the Effective Date any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer's services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which a factor of 1.0 shall be applied. Owner shall reimburse Engineer for the cost of such invoiced new taxes, fees, and charges; such reimbursement shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 — OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. Engineer's opinions of probable Construction Cost are to be made on the basis of Engineer's experience and qualifications and represent Engineer's best judgment as an experienced and qualified professional generally familiar with the construction industry. However, because Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors' methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. If Owner requires greater assurance as to probable Construction Cost, Owner must employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit A. If a Construction Cost limit is established between Owner and Engineer, such Construction Cost limit and a statement of Engineer's rights and responsibilities with respect thereto will be specifically set forth in Exhibit F, "Construction Cost Limit," to this Agreement. 5.03 Opinions of Total Project Costs A. The services, if any, of Engineer with respect to Total Project Costs shall be limited to assisting the Owner in collating the various cost categories which comprise Total Project Costs. Engineer assumes no responsibility for the accuracy of any opinions of Total Project Costs. Page 3 EJCDC E-500 Agreement Behveen Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. ARTICLE 6 — GENERAL CONSIDERATIONS 6.01 Standards of Performance A. Standard of Care: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under 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. B. Technical Accuracy: Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer's services. Engineer shall correct deficiencies in technical accuracy without additional compensation, unless such corrective action is directly attributable to deficiencies in Owner -furnished information. C. Consultants: Engineer may employ such Consultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. D. Reliance on Others: Subject to the standard of care set forth in Paragraph 6.0l.A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. E. Compliance with Laws and Regulations, and Policies and Procedures: Engineer and Owner shall comply with applicable Laws and regulations. 2. Prior to the Effective Date, Owner provided to Engineer in writing any and all policies and procedures of Owner applicable to Engineer's performance of services under this Agreement. provided to Engineer in writing. Engineer shall comply with such policies and procedures, subject to the standard of care set forth in Paragraph 6.01.A, and to the extent compliance is not inconsistent with professional practice requirements. 3. This Agreement is based on Laws and Regulations and Owner -provided written policies and procedures as of the Effective Date. Changes after the Effective Date to these Laws and Regulations, or to Owner -provided written policies and procedures, may be the basis for modifications to Owner's responsibilities or to Engineer's scope of services, times of performance, or compensation. F. Engineer shall not be required to sign any documents, no matter by whom requested, that would result in the Engineer having to certify, guarantee, or warrant the existence of conditions whose existence the Engineer cannot ascertain. Owner agrees not to make resolution of any dispute with the Engineer or payment of any amount due to the Engineer in any way contingent upon the Engineer signing any such documents. G. The general conditions for any construction contract documents prepared hereunder are to be the "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Page 4 EdCUC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professions! Engineers for EJCAC. All rights reserved. Contract Documents Committee (EJCDC C-700, 2007 Edition) unless both parties mutually agree to use other general conditions by specific reference in Exhibit J. H. Engineer shall not at any time supervise, direct, control, or have authority over any contractor work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety at the Site, nor for any failure of a contractor to comply with Laws and Regulations applicable to such contractor's furnishing and performing of its work. 1. Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. J. Engineer shall not provide or have any responsibility for surety bonding or insurance -related advice, recommendations, counseling, or research, or enforcement of construction insurance or surety bonding requirements. K. Engineer shall not be responsible for the acts or omissions of any Contractor, Subcontractor, or Supplier, or of any of their agents or employees or of any other persons (except Engineer's own agents, employees, and Consultants) at the Site or otherwise furnishing or performing any Work; or for any decision made regarding the Contract Documents, or any application, interpretation, or clarification, of the Contract Documents, other than those made by Engineer. L. While at the Site, Engineer's employees and representatives shall comply with the specific applicable requirements of Contractor's and Owner's safety programs of which Engineer has been informed in writing. 6.02 Design Without Construction Phase Services A. Engineer shall be responsible only for those Construction Phase services expressly required of Engineer in Exhibit A, Paragraph A1.05. With the exception of such expressly required services, Engineer shall have no design, Shop Drawing review, or other obligations during construction and Owner assumes all responsibility for the application and interpretation of the Contract Documents, review and response to Contractor claims, contract administration, processing Change Orders, revisions to the Contract Documents during construction, construction surety bonding and insurance requirements, construction observation and review, review of payment applications, and all other necessary Construction Phase engineering and professional services. Owner waives all claims against the Engineer that may be connected in any way to Construction Phase engineering or professional services except for those services that are expressly required of Engineer in Exhibit A, Paragraph A1.05. 6.03 Use of Documents A. The Owner acknowledges the Engineer's construction documents, including all electronic files, as instruments of professional services. Nevertheless, the final construction documents, including all electronic files, prepared under this agreement shall become the property of the Owner upon completion of services and payment in full of all monies due to the Engineer. The Owner shall not reuse or make any modification to the construction documents without Page 5 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. the prior written authorization of the Engineer. All r,.,,.,,...,ents afe instr-,,m ents of_servi, e in respect to this Pfc�M, and Engineer shall retain an ownefship and pfoperty interest4her-Ain (ineluding the eepyf ight and the right ef reuse at the diserefien ef the Engineer) whether- of- n Owner shall not rely in any way on any Document unless it is in printed form, signed or sealed by the Engineer or one of its Consultants. B. Either party to this Agreement may rely that data or information set forth on paper (also known as hard copies) that the party receives from the other party by mail, hand delivery, or facsimile, are the items that the other party intended to send. Files in electronic media format of text, data, graphics, or other types that are furnished by one party to the other are furnished only for convenience, not reliance by the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. If the parties agree to other electronic transmittal procedures, such are set forth in Exhibit J. C. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any transmittal errors detected within the 60-day acceptance period will be corrected by the party delivering the electronic files. D. When transferring documents in electronic media format, the transferring party makes no representations as to long-term compatibility, usability, or readability of such documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the documents' creator. E. Owner may make and retain copies of Documents for information and reference in connection with use on the Project by Owner. Engineer grants Owner a limited license to use the Documents on the Project, extensions of the Project, and for related uses of the Owner, subject to receipt by Engineer of full payment for all services relating to preparation of the Documents and subject to the following limitations: (1) Owner acknowledges that such Documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the Documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner's sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and Consultants; (3) Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from any use, reuse, or modification of the Documents without written verification, completion, or adaptation by Engineer; and (4) such limited license to Owner shall not create any rights in third parties. F. If Engineer at Owner's request verifies the suitability of the Documents, completes them, or adapts them for extensions of the Project or for any other purpose, then Owner shall compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer. Page 6 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright © 2008 National society of Professional Engineers for EJCDC. All rights reserved. G. At completion of any survey services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all survey data and drawings, upon which it will become the property of the Owner. H. At completion of any traffic study services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all data and models, upon which it will become the property of the Owner. I. At completion of any geotechnical or material investigation services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all data, upon which it will become the property of the Owner. 6.04 Insurance A. Engineer shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. B. Owner shall procure and maintain insurance as set forth in Exhibit G, "Insurance." 0.,,.,o1—r1,A11 ea -use Eflgineef and its Consultants to be listed as additienal inser-eds on any general liabili applieable to the Frojeet. C. Owner shall require Contractor to purchase and maintain policies of insurance covering workers' compensation, general liability, property damage (other than to the Work itself}, motor vehicle damage and injuries, and other insurance necessary to protect Owner's and Engineer's interests in the Project. Owner shall require Contractor to cause Engineer and its Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project. D. Owner- and Engineer shall easli-deliver to the Owner o certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of Engineer's services and at renewals thereafter during the life of the Agreement. E. All policies of property insurance relating to the Project shall contain provisions to the effect that Engineer's and its Consultants' interests are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery against Engineer or its Consultants, or any insureds, additional insureds, or loss payees thereunder. F. All policies of insurance shall contain a provision or endorsement that the coverage afforded will not be canceled or reduced in limits by endorsement, and thatrenewal will not be refused, until at least 30 days prior written notice has been given to Owner and Engineer and to each other additional insured (if any) to which a certificate of insurance has been issued. G. At any time, Owner may request that Engineer or its Consultants, at Owner's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Consultants to obtain such additional Page 7 EdCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2009 National society of Professional Engineers for EJCDC. All rights reserved. insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements. 6.05 Suspension and Termination A. Suspension: By Owner: Owner may suspend the Project for up to 90 days upon seven days written notice to Engineer. 2. By Engineer: Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement if Engineer's performance has been substantially delayed through no fault of Engineer. B. Termination: The obligation to provide filrther services under this Agreement may be terminated: 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. b. By Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer's responsibilities as a licensed professional; or 2) upon seven days written notice if the Engineer's services for the Project are delayed or suspended for more than 90 days for reasons beyond Engineer's control. 3) Engineer shall have no liability to Owner on account of such termination. C. Notwithstanding the foregoing, this Agreement will not terminate under Paragraph 6.05.B. La if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, a. By Owner effective upon Engineer's receipt of notice from Owner. Page 8 EJCAC E-500 Agreement Between Owner and Engineer for Professional Services Copyrigl►t 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Effective Date of Termination: The terminating party under Paragraph 6.05.13 may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assertible Project materials in orderly files. D. Payments Upon Termination: In the event of any termination under Paragraph 6.05, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished in accordance with this Agreement and all Reimbursable Expenses incurred through the effective date of termination. Upon making such payment, Owner shall have the limited right to the use of Documents, at Owner's sole risk, subject to the provisions of Paragraph 6.03.E. 2. In the event of termination by Owner for convenience or by Engineer for cause, Engineer shall be entitled, in addition to invoicing for those items identified in Paragraph 6.05.D.1, to invoice Owner and to payment of a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with Engineer's Consultants, and other related close-out costs, using methods and rates for Additional Services as set forth in Exhibit C. 6.06 Controlling Law A. This Agreement is to be governed by the law of the state or jurisdiction in which the Project is located. 6.07 Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 6.07.B the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Subcontractor, Supplier, other individual or entity, or to any surety for or employee of any of them. Page 9 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCBC. All rights reserved. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 3. Owner agrees that the substance of the provisions of this Paragraph 6.07.0 shall appear in the Contract Documents. 6.08 Dispute Resolution PRO B. , both may invoke the pr-o .o.aures -e f E*hit it 14. If Exhibit H is not included, or if no dispute resolution method is specified in Exhibit H, then the parties may exercise their rights under law. 6.09 Environmental Condition of Site A. Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other Constituents of Concern located at or near the Site, including type, quantity, and location. B. Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. C. If Engineer encounters or learns of an undisclosed Constituent of Concern at the Site, then Engineer shall notify (1) Owner and (2) appropriate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. D. It is acknowledged by both parties that Engineer's scope of services does not include any services related to Constituents of Concern. If Engineer or any other party encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove the Constituents of Concern; and (2) warrants that the Site is in full compliance with applicable Laws and Regulations. E, If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer's services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2) terminating this Agreement for cause on 30 days notice. F. Owner acknowledges that Engineer is performing professional services for Owner and that Engineer is not and shall not be required to become an 'owner" "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are or Page 10 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. may be encountered at or near the Site in connection with Engineer's activities under this Agreement. 6.10 Indemnification and Mutual Waiver A. Indemnification by Engineer: To the fullest extent permitted by law, Engineer shall indemnify and hold harmless Owner, and Owner's officers, directors, members, partners, agents, consultants, and employees from reasonable claims, costs, losses, and damages arising out of or relating to the Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Engineer or Engineer's officers, directors, members, partners, agents, employees, or Consultants. This indemnification provision is subject to and limited by the provisions, if any, agreed to by Owner and Engineer in Exhibit 1, "Limitations of Liability." B. Indemnification by Owner: Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants as required by Laws and Regulations and to the extent (if any) required in Exhibit I, Limitations of Liability. C. Environmental Indemnification: To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, and all court, arbitration, or other dispute resolution costs) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (1) any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (2) 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 own negligence or willful misconduct. D. Percentage Share of Negligence: To the fullest extent permitted by law, a party's total liability to the other party and anyone claiming by, through, or under the other party for any cost, loss, or damages caused in part by the negligence of the party and in part by the negligence of the other party or any other negligent entity or individual, shall not exceed the percentage share that the party's negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. E. Mutual Waiver: To the fullest extent permitted by law, Owner and Engineer waive against each other, and the other's employees, officers, directors, members, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project. 6.11 Miscellaneous Provisions A. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or Page r r EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright © 2008 Nationar Society of Professional Engineers for EJCDC. All rights reserved. certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B, Survival: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severability: Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Engineer, which agree that the Agreement shall be reformed to replace such stricken provision or pant thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. D. Waiver: A party's non -enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. Accrual of Claims: To the fullest extent permitted by law, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. ARTICLE 7 — DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) terms (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above, in the exhibits, or in the following provisions: I . Additional Services — The services to be performed for or furnished to Owner by Engineer in accordance with Part 2 of Exhibit A of this Agreement. 2. Agreement — This written contract for professional services between Owner and Engineer, including all exhibits identified in Paragraph 8.01 and any duly executed amendments. 3. Asbestos — Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 4. Basic Services — The services to be performed for or furnished to Owner by Engineer in accordance with Part 1 of Exhibit A of this Agreement. Construction Contract — The entire and integrated written agreement between Owner and Contractor concerning the Work. 6. Construction Cost — The cost to Owner of those portions of the entire Project designed or specified by Engineer. Construction Cost does not include costs of services of Engineer or other design professionals and consultants; cost of land or rights -of -way, or compensation for damages to properties; Owner's costs for legal, accounting, insurance counseling or auditing services; interest or financing charges incurred in connection with Page 12 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. the Project; or the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 7. Constituent of Concern — Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. ("CERCLA"); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§1801 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. ("RCRA"); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; and (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 8. Consultants — Individuals or entities having a contract with Engineer to furnish services with respect to this Project as Engineer's independent professional associates and consultants; subcontractors; or vendors. 9. Contract Documents — Those items so designated in the Construction Contract, including the Drawings, Specifications, construction agreement, and general and supplementary conditions. Only printed or hard copies of the items listed in the Construction Contract are Contract Documents. Approved Shop Drawings, other Contractor submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 10. Contractor — The entity or individual with which Owner has entered into a Construction Contract. 11. Documents -- Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by Engineer to Owner pursuant to this Agreement. 12. Drawings — That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be per by Contractor. Shop Drawings are not Drawings as so defined. 13. Effective Date — The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, the date on which this Agreement is signed and delivered by the last of the parties to sign and deliver. 14. Engineer —The individual or entity named as such in this Agreement. 15. Hazardous Waste — The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. Page 13 EJCDC E-500 Agreement Sehveen Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 16. Laws and Regulations; Laws or Regulations — Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 17. Owner — The individual or entity with which Engineer has entered into this Agreement and for which the Engineer's services are to be performed. Unless indicated otherwise, this is the same individual or entity that will enter into any Construction Contracts concerning the Project. 18. PCBs — Polychlorinated biphenyls. 19. Petroleum — Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -hazardous waste and crude oils. 20. Project — The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 21. Radioactive Material — Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 22. Record Drawings — Drawings depicting the completed Project, prepared by Engineer as an Additional Service and based solely on Contractor's record copy of all Drawings, Specifications, addenda, change orders, work change directives, field orders, and written interpretations and clarifications, as delivered to Engineer and annotated by Contractor to show changes made during construction. 23. Reimbursable Expenses — The expenses incurred directly by Engineer in connection with the performing or furnishing of Basic and Additional Services for the Project. 24. Resident Project Representative — The authorized representative of Engineer assigned to assist Engineer at the Site during the Construction Phase. As used herein, the term Resident Project Representative or "RPR" includes any assistants or field staff of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative, if any, are as set forth in Exhibit D. 25. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 26. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 27. Site — Lands or areas to be indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights -of -way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. Page 14 EJCDC E-500 Agreement Between Owner and Engineer for Professionai Services Copyright © 2008 National society of Professional Engineers for EJCDC. All rights reserved. 28. Specifications — That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 29. Subcontractor — An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 30. Substantial Completion — The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 31. Supplier — A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 32. Total Project Costs — The sum of the Construction Cost, allowances for contingencies, and the total costs of services of Engineer or other design professionals and consultants, together with such other Project -related costs that Owner furnishes for inclusion, including but not limited to cost of land, rights -of -way, compensation for damages to properties, Owner's costs for legal, accounting, insurance counseling and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. 33. Work— The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. ARTICLE 8 — EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Include& A. Exhibit A, Engineer's Services. B. Exhibit B, Owner's Responsibilities. C. Exhibit C, Payments to Engineer for Services and Reimbursable Expenses. D. Exhibit D, Duties, Responsibilities and Limitations of Authority of Resident Project Representative. E. R)Ehi it E, Noti , r A eoep,,abil;#y_.Yrx ME. F. Exhibit F, GonstFu ation Cost r NOT INCLUDED Page 15 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. G. Exhibit G, Insurance. .NOT INCLUDED I. Exhibit I, Limitations of Liability. J. Exhibit J, Special Provisions. K. &ihibit K A ,.need,.,. en. t Owner Engineer- A greefnent, NOT INCLUDED 8.02 Total Agreement: A. This Agreement, (together with the exhibits identified above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument based on the format of Exhibit K to this Agreement. 8.03 Designated Representatives: A. With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer's and Owner's representatives with respect to the services to be performed or furnished by Engineer and responsibilities of Owner under this Agreement. Such an individual shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of the respective party whom the individual represents. 8.04 Engineer's Certifications: A. Engineer certifies that it has not engaged in corrupt, fraudulent, or coercive practices in competing for or in executing the Agreement. For the purposes of this Paragraph 8.04: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the selection process or in the Agreement execution; 2, "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the selection process or the execution of the Agreement to the detriment of Owner, or (b) to deprive Owner of the benefits of free and open competition; 3. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the selection process or affect the execution of the Agreement. Page 15 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright© 2008 National Society of Professional Engineers for EJCDC. All rights reserved. a 41 I This is EXHIBIT A, consisting of 15 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Engineer's Services Article 1 of the Agreement is supplemented to include the following agreement of the parties. Engineer shall provide Basic and Additional Services as set forth below. PART I — BASIC SERVICES A 1.01 Study and Report Phase A. Engineer shall (standard text deleted and new text inserted): 1. Project Meetings and Workshops a. Engineer will organize and attend up to two project meetings, four teleconferences, and two workshops with the Owner. The project meetings and workshops will be held at the Wastewater Treatment Plant site in South Bend, Indiana. The kickoff meeting will be held to discuss the goals and objectives of the project, establish lines of communication, as well as gather the necessary data to begin the electrical assessment and evaluation effort. A second meeting will occur following submittal of the draft Electrical Evaluation Report to review the Owners comments as well as review recommendations and the strategy going forward. The duration of each meeting is anticipated to be up to four hours and each will be attended by the project manager, engineering manager, and the lead electrical engineer. Engineer will also lead up to four 2-hour teleconferences to review status of the project and discuss any outstanding questions with the Owner. b. Engineer will conduct two Workshops with the Owner's engineering and plant staff. The Planning Workshop will assist with identifying treatment process power deficiencies and SCADA network power deficiencies as well as provide a forum to review the overall plant single Iine diagram. During the Project Prioritization Workshop the Engineer will utilize a matrix to present the condition of the critical processes; project impacts on plant treatment conditions of 48 mgd and 77 mgd; and AACE Level 5 estimated costs for design and construction of the proposed upgrades to assist the Owner's strategy. Information from this workshop will facilitate the remaining tasks. Engineer will submit meeting notes to the Owner within 10 business days of each project meeting and workshop. 2. Data and Information Collection and Review a. Engineer will prepare a memorandum summarizing the required data and information needed from the Owner to conduct the electrical evaluation. The data and information will be provided by the Owner in electronic format when available. Engineer will Page 1 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Behveen Owner And Engineer for Professional Services Copyright© 2008 National society or Professional Engineers for EJCDC, All rights reserved. review, analyze and summarize the data received. The Engineer will review the following data and information. 1) Previous studies and reports prepared by the Engineer and others 2) Record drawings of process facilities receiving power from the eight onsite transformers 3) Recent electrical utility records 4) Operating and maintenance financial and technical data 3. Survey Facilities and Review Record Drawings a. Engineer will perform an evaluation of the Wastewater Treatment Plant's electrical system by conducting an extensive site survey to identify and confirm the electrical loads and generator sources connected to the electrical distribution equipment associated with each of the eight utility transformers. This survey will include a review of electrical generator systems and an equipment survey. b. Engineer will review available record documents and information related to Owner's electrical distribution system as well as meet with the Owner's staff to discuss needs and questions associated with each of the eight utility transformers and the areas they serve. Documents and information that will be reviewed include: power one -line diagrams, equipment shop drawings, arc flash documents, and electric utility records. The information obtained from the site survey and the record drawing review will be assimilated into an overall plant power single -line diagram. In addition, electrical load studies will be developed for each of the utility transformer distribution systems. Each load study will identity active and inactive loads, with the appropriate load diversity associated with the equipment. In the course of the site investigation electrical safety and SCADA Network switch locations within electrical cabinets will be identified, noted, and recommendations made for relocation of each. Engineer will summarize the above information in the Electrical Evaluation Report. 4. Standby Power Assessment and Recommedations a. Engineer will perform an evaluation of the Wastewater Treatment Plant electrical generator systems based on the Task 3 site investigation and equipment survey. The assessment will summarize the plant's current standby power capabilities, and will address the impacts on process for areas lacking backup power. Critical equipment; pumps, clarifiers, aeration, disinfection, digesters, dewatering, etc., will be identified and evaluated for connection to backup power systems. The assessment will also include review of existing utility records and evaluation of peak shaving using standby power generators. Generator backup needs will be identified for two scenarios: normal flow up to 48 MGD and peak flow up to 77 MGD. 5. Electrical System Assessment and Recommedations a. Engineer will utilize information gathered from information requests and during site visits and workshops to perform an assessment of the electrical system, standby power Page 2 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. systems assessment, and conceptual treatment evaluation and will summarize the findings in the Draft Electrical Evaluation Report. Engineer will also investigate and provide information on potential energy reduction improvements including upgrading obsolete utility transformers, SCADA network improvements, and evaluating automation of dissolved oxygen controls and blower technology at the aeration tanks. Conceptual costs (RACE Level S) for recommended improvements will be provided along with a phased implementation schedule that meets the City's needs.. Following receipt of Owner comments, a Final Electrical Evaluation Report will be submitted within 30 days. Up to five paper copies and two archive quality digital discs with searchable PDF format versions of the Draft and Final Report will be provided to the Owner for their use. 6. Project Management and Administration a. Engineer will provide project supervision, direction, and coordination with the Owner's management and staff. Project administration and management also includes budget and schedule control, client management support, document control, coordination of activities, monthly invoicing and project close-out. Engineer will maintain a change register of any scope changes affecting the project budget or schedule and review it with the Owner on a monthly basis. Engineer shall discuss and receive written approval for any scope changes from the Owner prior to proceeding. r r - _ MI. ` • s•�Y��N�......... �YYtl YIf!/l � liRl7 • — _ •Pin PI YY lwYYl�Yf f�l YYY15lIl• Page 3 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Behveen Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. w.m 010-00- VON ■. _ • IFA�'W• • - - N. • ■ I FIRM. WIN _ ■ A ■ . \ i • Page A (Exhibit A — Engineer's Services) EdCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. . ■ r ■. ■_ r a MIN I •IN ■ • • • • • � ■ . i!T-�!7�i:R1�:7:1�:!!!1��1:5!1.7:!!�S.T.�R!!!lS'i. ■ ♦ A • . Page 5 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. The for WME designed by Engineer- upon Whieh number- of Engineef's prime eantmets @F speeified has been this AgFeemen4 is if move eenVensafiea established under- Engineer be to ine-we-I- in -#&-eempensafieii unde eentfaets afe awarded, this Agreemefi�. shall entitled an equiIable - - MIMI � a 11111�. a • WN;�talt! i IM *M.• a •ll�JlZlf,l�Slll �.lil ll. i�l a'111�11C�-11fW _ _ Page 6 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. - • a - - - ■ W. • WIN• '• dote-anine the thM 9 ? and aeeeptability of any and all sehedules f ineluding the Progress 7 Submittals, and c hedulo of Valuen I.N. . 'of . - N I --- . - mp mm a • Page 7 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. - MrPon ■, ■_ ;- _ ■- PrOMW■ ■ - • - - - - Page 8 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright O 2008 National Society of Professional Engineers for EJCDC. All rights reserved. - M-1 a.Mill - a -Min- - ■ • - -Iwo.• ■ ■ - -` ■.ZWW Page 9 (Exhibit A — Engineer's Services) EJCQC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. ME LY W C Y Awi:lW lWiAR�Il �l�19WOM � � A - A1,1111 PM M. I a - � A � l A - A - - - - - - - _ v PI Page 10 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Behveen Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. ■ • ' _ lwam _�sr�rsrsree • The Pwit Constr-Hetion Phase during the Gonstr-Hetion Phase if sen4lees may leommenee and, not other -wise modified -a this Exhibit A, will ter-m-nate twelve months after- the eammeneement of tke PART 2 — ADDITIONAL SERVICES A2.01 Additional Services Requiring Oivner's Written Authorization A. If authorized in writing by Owner, Engineer shall furnish or obtain from others Additional Services of the types listed below. 1. Arc Flash Assessment and Review a. The Wastewater Treatment Plant has recently implemented the City's Are Flash Safety Program for staff and contractors, and applied are flash labels to the electrical panels such that authorized personnel may access panels with the correct personal protective equipment (PPE). Engineer will utilize the City's Arc Flash Safety Program to review the current Are Flash rating for up to eight power systems associated with the WWTP building and process areas and will provide updated information that meets the program requirements. The information can be summarized in the Electrical Evaluation Report or in a separate technical memorandum. 2. Additional meetings, workshops, or presentations with the Owner other than those listed herein. Page 11 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EdCDC. All rights reserved. 3. Meeting with local, state, federal agencies, or utilities or other affected parties to discuss the project, other than those specifically mentioned 4. Appearances at public hearings or before special boards. 5. Services from specialty subconsultants. 6. Survey of additional electrical facilities other than the number listed. 7. Planning or preliminary engineering services. 8. Additional strategy support or other related services. 9. Support for the application and administration of any funding sources selected by City staff. 10. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans, or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 11. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by Owner or others. 12. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by Engineer or its design requirements including, but not limited to, changes in size, complexity, Owner's schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date or are due to any other causes beyond Engineer's control. 13. Services resulting from Owner's request to evaluate additional Study and Report Phase alternative solutions beyond those identified in Paragraph A1.01.A.4. 14. Services required as a result of Owner's providing incomplete or incorrect Project information to Engineer. 15. Providing renderings or models for Owner's use. 16. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of financial feasibility and cash flow studies, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting Owner in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by Owner. Page 12 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 17. Furnishing services of Consultants for other than Basic Services. ",zr n 19. Services during out-of-town travel required of Engineer other than for visits to the Site or Owner's office. 20. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by Owner; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. requested by Owner- for the Work or a portien there4 eenstmetion, materials, equipment, e Bept when sueh assistanee is required by Exhibit z- than as required under Paragraph AI.05.A.6, and any type of prepoi4y surveys ef felated seMees needed for the iratisfer- of interests in real 23. Providing eenstfueden stwveys and Staking te enable Gantraetep te perform its WedE othe and providing ethef Gp `•Y 24. Providing Genstruc4ien Phase serviees beyond the original date fer eempleiien SiteSite .�.li with a „t Laws ..nil Regulations. , ' ruszvu.�. 26. Preparing Reeer-d Drawings sho. Hate Reefd inf4mation based on Pfejeo Drawings te fief. 28. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other dispute resolution process related to the Project. 29. Providing more extensive services required to enable Engineer to issue notices or certifications requested by Owner. Page 13 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 32. Assistance to Owner in developing procedures for (a) control of the operation and maintenance of Project equipment and systems, and (b) related record -keeping. 33. Overtime work requiring higher than regular rates. 34. Other services performed or furnished by Engineer not otherwise provided for in this Agreement. A2,02 Additional Services Not Requiring Owners Written Authorization A. Engineer shall advise Owner in advance that Engineer is will immediately commence to perform or furnish the Additional Services of the types listed below. For such Additional Services, Engineer need not request or obtain specific advance written authorization from Owner. Engineer shall cease performing or furnishing such Additional Services upon receipt of written notice from Owner. 1. Services in connection with work change directives and change orders to reflect changes requested by Owner. UUMMM - r. - Page 14 (Exhibit A— Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 9. While at the Site, compliance by Engineer and its staff with those terms of Owner's or Contractor's safety program provided to Engineer subsequent to the Effective Date that exceed those normally required of engineering personnel by federal, state, or local safety authorities for similar construction sites. Page 15 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT B, consisting of 3 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Owner's Responsibilities Article 2 of the Agreement is supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of Owner as set forth in this Agreement, Owner shall at its expense: A. Provide Engineer with all criteria and full information as to Owner's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which Owner will require to be included in the Drawings and Specifications; and furnish copies of Owner's standard forms, conditions, and related documents for Engineer to include in the Bidding Documents, when applicable. B. Furnish to Engineer any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. Following Engineer's assessment of initially -available Project information and data and upon Engineer's request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable Engineer to complete its Basic and Additional Services. Such additional information or data would generally include the following: I . Property descriptions. 2. Zoning, deed, and other land use restrictions. 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions relating to existing surface or subsurface structures at. the Site, or hydrographic surveys, with appropriate professional interpretation thereof. Environmental assessments, audits, investigations, and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 6. Data or consultations as required for the Project but not otherwise identified in the Agreement or the Exhibits thereto. D. Give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of the presence at the Site of any Constituent of Concern, or of any other development that affects the Page i (Exhibit B — Owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. scope or time of performance of Engineer's services, or any defect or nonconformance in Engineer's services, the Work, or in the performance of any Contractor. E. Authorize Engineer to provide Additional Services as set forth in Pant 2 of Exhibit A of the Agreement as required. F. Arrange for safe access to and make all provisions for Engineer to enter upon public and private property as required for Engineer to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by Engineer (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as Owner deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Project designed or specified by Engineer and such reviews, approvals, and consents from others as may be necessary for completion of each phase of the Project. 1. Recognizing and acknowledging that Engineer's services and expertise do not include the following set -vices, provide, as required for the Project: Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services. 2. Legal set -vices with regard to issues pertaining to the Project as Owner requires, Contractor raises, or Engineer reasonably requests. 3. Such auditing services as Owner requires to ascertain how or for what purpose Contractor has used the moneys paid. J. Place and pay for advertisement for Bids in appropriate publications. K. Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. L. Furnish to Engineer data as to Owner's anticipated costs for services to be provided by others (including, but not limited to, accounting, bond and financial, independent cost estimating, insurance counseling, and legal advice) for Owner so that Engineer may assist Owner in collating the various cost categories which comprise Total Project Costs. M. if Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to represent Owner at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other parry and the relation thereof to the duties, responsibilities, and authority of Engineer. Page 2 (Exhibit rr — Owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. N. if more than one prime een4faet is to be awaiAed feF the Wafk designed of Speeified by , designate a persan E)r- entity to have authority and r-espensibilit), for eeerdiHating the aetk,ities among the . .1 GOIMFaetar-s, and define and set fet4h the duties, responsibilitieR,-an4 lifnit4ions of authority ef Sue-h individual er- enfitj, and the felfftien thereof to the duties, ivsponsibilities, and authority of Engineer- as an a4tachment to this Rxhib-it B_ th-at iS to be mutually agfeed upon and made a paA afthis Agreefaent before 9M .. .' I -in. and other j obrelated meetings, and Substantial Completion and final payffient visits to the Projeet. P. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of Owner, prior to their incorporation into the Work with appropriate professional interpretation thereof. Q. Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this paragraph. R. Inform Engineer in writing of any specific requirements of safety or security programs that are applicable to Engineer, as a visitor to the Site. S. Perform or provide the following additional services: [Here list any such additional services]. Page 3 (Exhibit B — Owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright cC 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT C, consisting of 3 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Payments to Engineer for Services and Reimbursable Expenses COMPENSATION PACKET BC-1: Basic Services — Lump Sum Article 2 of the Agreement is supplemented to include the following agreement of the parties: ARTICLE 2 — OWNER'S RESPONSIBILITIES C2.01 Compensation for Basic Services (other than Resident Project Representative) — Lump Sunni Method of Payment A. Owner shall pay Engineer for Basic Services set forth in Exhibit A, except for services of Engineer's Resident Project Representative, if any, as follows: 1. A Lump Sum amount of $183,,572 based on the following estimated distribution of compensation: a. Task 1 —Project Meetings and Workshops $37,167 b. Task 2 — Data and Information Collection and Review $ 8,238 c. Task 3 ---- Survey Facilities and Review Record Drawings $75,309 d. Task 4 -- Standby Power Assessment and Recommendations $.10,528 e. Task 5 — Electrical System Assessment and Recommendations $43,252 £ Task 6 —Project Management and Administration $. 9,078 2. Engineer may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the Owner. 3. The Lump Sum includes compensation for Engineer's services and set -vices of Engineer's Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for labor, overhead, profit, and Reimbursable Expenses. 4. The portion of the Lump Sum amount billed for Engineer's services will be based upon Engineer's estimate of the percentage of the total services actually completed during the billing period. B. Period of Service: The compensation amount stipulated in Compensation Packet BC -I is conditioned on a period of service not exceeding 4 months. If such period of service is extended, the compensation amount for Engincer's services shall be appropriately adjusted. Page 1 Exhibit C —Compensation Packet BC-1: Basic Services (other than RPR) -- Lump Sum Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright C 2008 National Society of Professional Engineers for EJCDC. All rights reserved. COMPENSATION PACKET AS-1: Additional Services — Standard Hourlv Rates Article 2 of the Agreement is suppimented to include the following agreement of theparties: C2.05 Compensation for Additional Services -- Standard Hourly Rates Method of Payment A, Owner shall pay Engineer for Additional Services, if any, as follows: General: For services of Engineer's personnel engaged directly on the Project pursuant to Paragraph A2.01 or A2.02 of Exhibit A, except for services as a consultant or witness under Paragraph A2.0l.A.20, (which if needed shall be separately negotiated based on the nature of the required consultation or testimony) an amount equal to the cumulative hours charged to the Project by each class of Engineer's personnel times Standard Hourly Rates for each applicable billing class for all Additional Services performed on the Project, plus related Reimbursable Expenses and Engineer's Consultant's charges, if any. B. Compensation For Reimbursable Expenses: For those Reimbursable Expenses that are not accounted for in the compensation for Basic Services under Paragraph C2.01 and are directly related to the provision of Additional Services, Owner shall pay Engineer at the rates set forth in Appendix I to this Exhibit C. 2. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto; providing and maintaining field office facilities including furnishings and utilities; toll telephone calls and mobile phone charges; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project -related items in addition to those required under Exhibit A. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. 3. The amounts payable to Engineer for Reimbursable Expenses, if any, will be the Additional Services -related internal expenses actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such Additional Services, the latter multiplied by a factor of I.Q. 4. The Reimbursable Expenses Schedule will be adjusted annually (as of January 2018) to reflect equitable changes in the compensation payable to Engineer. C. Other Provisions Concerning Payment Far Additional Services: Whenever Engineer is entitled to compensation for the charges of Engineer's Consultants, those charges shall be the amounts billed by Engineer's Consultants to Engineer times a factor of 1.05. Page I Exhibit C — Compensation Packet AS -I: Additional Services — Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 2. Factors: The external Reimbursable Expenses and Engineer's Consultant's Factors include Engineer's overhead and profit associated with Engineer's responsibility for the administration of such services and costs. 3. To the extent necessary to verify Engineer's charges and upon Owner's timely request, Engineer shall make copies of such records available to Owner at cost. Page 2 Exhibit C — Compensation Packet AS-1; Additional Services — Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright D 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is Appendix 1 to EXHIBIT C, consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Reimbursable Expenses Schedule Current agreements for engineering services stipulate that the Reimbursable Expenses are subject to review and adjustment per Exhibit C. Reimbursable expenses for services performed on the date of the Agreement are: Mileage (auto) $0.535/mile Black & White Copy (8.5"xl1") $0.07/page Color Copy (8.5"x l 1 ") $0.37/page Black & White Copy (22"x34") $0.26/square foot Black & White Copy (I I"xl7") $0.14/page Color Copy (I 1 "x17") $0.74/page Arc Flash Labels at cost Field Equipment Rental at cost Long Distance Phone Calls at cost Meals and Lodging at cost Rental Car at cost Page 1 Exhibit C — Appendix 1: Reimbursable Expenses Schedule EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is Appendix 2 to EXHIBIT C, consisting of pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Standard Hourly Rates Schedule A. Standard Hourly Rates: 1. Standard Hourly Rates are set forth in this Appendix 2 to this Exhibit C and include salaries and wages paid to personnel in each billing class plus the cost of customary and statutory benefits, general and administrative overhead, non -project operating costs, and operating margin or profit. 2. The Standard Hourly Rates apply only as specified in Article C2. B. Schedule: Hourly rates for services performed on or after the date of the Agreement are: Classification Rate /Hour Project Director 250 Project Manager 205 Engineering Manager 165 Senior Electrical Engineer 225 Electrical Project Engineer 155 Senior 1&C Engineer 195 Quality Control Engineer 225 Estimator 175 Engineering Technician 120 Project Assistant 90 Page 1 (Exhibit D - Resident Project Represen In live) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. • 0. ■� • LIM Trici Page 1 (Exhibit F — Construction Cost Limit) CJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. The Nefiee of Meeptability of Work (Notiee") is ex-pr-essly made subject to the follewing ter - and eendifiens to whieh all these whe r-eeeive said Natiee and rely thereen ageei WOM ru _ IMMOMMOMM".. OWN; NUNN Page 2 (Exhibit F — Construction Cost Limit) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Insurance Paragraph 6.04 of the Agreement is supplemented to include the following agreement of the parties. G6.04 Insurance A. The limits of liability for the insurance required by Paragraph 6.04.A and 6.04.13 of the Agreement are as follows: 1. By Engineer: a. Workers' Compensation: b. Employer's Liability -- 1) Each Accident: 2) Disease, Policy Limit: 3) Disease, Each Employee: c. General Liability -- 1) Each Occurrence (Bodily Injury and Property Damage): 2) General Aggregate: d. Excess or Umbrella Liability -- 1) Each Occurrence: 2) General Aggregate, Statutory $1,000,000 $1,000,000 $1,000,000 $1,000,000 $2,000,000 $1,000,000 $1,000,000 e. Automobile Liability --Combined Single Limit (Bodily Injury and Property Damage): Each Accident $1,000,000 f. Professional Liability- 1) Each Claim Made $1,000,000 2) Annual Aggregate $1,000,000 g. Other (specify): None 2. By Owner: Page 1 (Exhibit G - Insurance) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. a. The City of South Bend is a municipal corporation organized under the Iaws of the State of Indiana, and is self -insured under provisions of Indiana statutes and local ordinance. Specifically, the City of South Bend maintains blanket insurance coverage over real and personal property, and is covered by a non -reverting insurance premium and liability reserve fund created by the City of South Bend, Ordinance #6657-79, pursuant to Indiana Code 34-13-3-4, as amended from time to time. Under said statute, the City's liability is limited to: 1) Seven hundred thousand dollars ($700,000) for a cause of action that accrues on or after January 1, 2008; and 2) Five million dollars ($5,000,000) for injury to or death of all persons in that occurrence,; and 3) A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages. B. Additionallnsirreds: 1. The following persons or entities are to be listed on Owner's general liability policies of insurance as additional insureds, and on any applicable property insurance policy as loss payees, as provided in Paragraph 6.04.B: a. Black & Veatch Corporation Engineer b. C. Engineer's Consultant Engineer's Consultant 2. During the term of this Agreement the Engineer shall notify Owner of any other Consultant to be listed as an additional insured on Owner's general liability and property policies of insurance. 3. The Owner shall be listed on Engineer's general liability policy as provided in Paragraph 6.04.A. Page 2 (Exhibit G - Insurance) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT 1, consisting of 2 pages, referred to in and part of the Agreement between. Owner and Engineer for Professional Services dated , Limitations of Liability Paragraph 6.10 of the Agreement is supplemented to include the following agreement of the parties: A. Limitation of Engineer's Liability Engineer's Liability Limited to Amount of Insurance Proceeds: Engineer shall procure and maintain insurance as required by and set forth in Exhibit G to this Agreement. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, the total liability, in the aggregate, of Engineer and Engineer's officers, directors, members, partners, agents, employees, and Consultants to Owner and anyone claiming by, through, or under Owner for any and all claims, losses, costs, or damages whatsoever 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 the negligence, professional errors or omissions, strict liability, breach of contract, indemnity obligations, or warranty express or implied, of Engineer or Engineer's officers, directors, members, partners, agents, employees, or Consultantss (hereafter "Owner's Claims"), shall not exceed the total insurance proceeds paid on behalf of or to Engineer by Engineer's insurers in settlement or satisfaction of Owner's Claims under the terms and conditions of Engineer's insurance policies applicable thereto (excluding fees, costs and expenses of investigation, claims adjustment, defense, and appeal). provided with respeet to ownef's Claims, then the total liability, in the aggregate, of Enginee Owner- and anyene elaiming by, fl"tigh, er under Owner- for- any and all sueh uninsur-ed Owner's Claims shallate xeeed $ B. Indemnification by Owner: To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court, arbitration, or other dispute resolution costs) arising out of or relating to the Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Owner or Owner's officers, directors, members, partners, agents, employees, consultants, or others retained by or under contract to the Owner with respect to this Agreement or to the Project. Page 1 (Exhibit I - Limitations on Liability) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT J, consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Special Provisions Paragraph(s) of the Agreement is/are amended to include the following agreement(s) of the parties: None. Page I (Exhibit J - Special Provisions) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 'If p 11 7