RES 2020-0970 - PSA with Jacobs Engineering Group for OPW 53943 - MO Avenue Storm Sewer Outfall Improvements
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is hereby made and entered into this____ day of ___________, _______, by and between the
City of Omaha, a municipal corporation located in Douglas County, Nebraska (hereinafter referred to as the “City”),
and Jacobs Engineering Group Inc. (hereinafter referred to as the “Provider”), on the terms, conditions and
provisions as set forth herein below and as appended through the incorporation of Exhibit “D”. All references to
“Contractor” shall mean “Provider”.
I.PROJECT NAME AND DESCRIPTION
OPW 53943, Missouri Avenue Storm Sewer Outfall Improvements, This project includes an assessment of
the current stormwater flow conditions in the combined sewer line upstream of CSO 117 and conceptual
design services to identify alternatives that will reduce or eliminate surcharging of the line and subsequent
flooding in the immediate area.
II.DUTIES OF PROVIDER
A.Provider agrees to perform professional services, as set out and more fully described in the Proposal
attached hereto, for the City, relative to the above-referenced project which is illustrated in Exhibit “B”
attached hereto. Such services shall be completed within a 250 calendar day period after receipt of a
purchase order from the City.
B.Provider designates Emily Holtzclaw, whose business address and phone number is 222 South 15th
Street, Suite 1408-S, Omaha, Nebraska 68102, 402-609-7510 as its project manager and contact person
for this project.
C.Provider agrees to maintain records and accounts, including personnel, financial and property records,
sufficient to identify and account for all costs pertaining to the project and certain other records as may
be required by the City to assure a proper accounting for all project funds. These records shall be made
available to the City for audit purposes and shall be retained for a period of five (5) years after the
expiration of this Agreement.
D.Provider agrees to prepare a schedule of compensation, detailing hourly rates for all compensated
providers, employees, and subcontractors.
E.Provider agrees to complete, within 250 calendar days of receipt of a purchase order from the City, the
necessary services. The City recognizes that completion within this deadline is contingent upon timely
response from utilities and City input.
F.Provider agrees to have a current Contract Compliance Form (CC-1) on file with the City’s Human
Rights and Relations Department prior to signing the agreement.
III.DUTIES OF CITY
City designates Noma Borde, whose business address and phone number are 1819 Farnam Street, Suite 600,
Omaha, Nebraska 68183, 402-444-7948 as its contact person for this project, who shall provide a notice to
proceed and such other written authorizations as are necessary to commence or proceed with the project and
various aspects of it.
<<Summary>>
IV.COMPENSATION AND PAYMENT
A.The cost of services as specified in the Scope of Service, shall be performed on an hourly basis, but in
no event shall it exceed $99,736.56. Detailed breakdown of costs shall be shown in Exhibit “C”.
B.Reimbursable expenses shall be billed to the City by the Provider.
C.INCREASE OF FEES
The parties hereto acknowledge that, as of the date of the execution of the Agreement, Section 10-142
of the Omaha Municipal Code provides as follows: Any amendment to contracts or purchases which
taken alone increase the original fee as awarded (a) by ten percent, if the original fee is one hundred
fifty thousand dollars ($150,000) or more, or (b) by seventy-five thousand dollars ($75,000) or more,
shall be approved by the City Council in advance of the acceptance of any purchase in excess of such
limits. However, neither contract nor purchase amendments will be split to avoid advance approval of
the City Council.
The originally approved scope and primary features of a contract or purchase will not be significantly
revised as a result of amendments not approved in advance by the City Council. The provisions of this
section will be quoted in all future City contracts. Nothing in this section is intended to alter the
authority of the Mayor under section 5.16 of the Charter to approve immediate purchases.
V.OWNERSHIP OF INSTRUMENTS OF SERVICE
The City acknowledges the Provider’s documents, including electronic files, as instruments of professional
service. Nevertheless, upon completion of the services and payment in full of all monies due to the Provider,
the final documents prepared under this Agreement shall become the property of the City. The City shall not
reuse on another Project or make any modifications to the documents without prior written authorization of
the Provider. The City agrees, to the fullest extent permitted by law, to indemnify and hold harmless the
Provider, its officers, directors, employees and subconsultants (collectively, Provider) against any damages,
liabilities or costs, including reasonable attorneys’ fees and defense costs, arising from or in any way
connected with the unauthorized reuse or modification of the documents by the City, regardless of whether
such reuse or modification is for use on this Project or another Project.
VI.ADDITIONAL SERVICES
In the event additional services for the aforementioned Project not covered under this Agreement are required,
the Provider agrees to provide such services at a mutually agreed upon cost.
VII.INSURANCE REQUIREMENTS
The Provider shall carry professional liability insurance in the minimum amount of one half million dollars
and shall carry workers’ compensation insurance in accordance with the statutory requirements of the State of
Nebraska.
VIII.INDEMNIFICATION
The Provider agrees, to the fullest extent permitted by law, to indemnify, defend and hold harmless the City,
its officers, directors and employees (collectively, City) against all damages, liabilities or costs, including
reasonable attorney’s fees and defense costs, to the extent caused by the Provider’s negligent performance of
professional services under this Agreement and that of its subconsultants or anyone for whom the Provider is
legally liable; provided, that with respect solely to the said duty to defend, such duty of the Provider to defend
shall arise only if, and to the extent, such duty is covered by Provider’s liability insurance. The City agrees,
to the fullest extent permitted by law, to indemnify and hold harmless the Provider, its officers, directors,
employees and subconsultants (collectively, Provider) against all damages, liabilities or costs, including
reasonable attorney’s fees and defense costs in connection with the Project, to the extent caused by the City’s
negligent acts or the negligent acts of anyone for whom the City is legally liable. Neither the City nor the
Provider shall be obligated to indemnify the other party in any matter whatsoever for the other party’s own
negligence.
IX.TERMINATION OF AGREEMENT
This Agreement may be terminated by the City upon written notice to the Provider of such termination and
specifying the effective date at least seven (7) days prior to the effective date of such termination. In the
event of termination, the Provider shall be entitled to just and equitable payment for services rendered to the
date of termination, and all finished or unfinished documents, data surveys, studies, drawings, maps, models,
reports or photographs shall become, at the City’s option, its property.
X.GENERAL CONDITIONS
A.Non-discrimination. Provider shall not, in the performance of this Agreement, discriminate or permit
discrimination in violation of federal or state laws or local ordinances because of race, color, creed,
religion, sex, marital status, sexual orientation, gender identity, age, or disability as recognized under
42 USCS 12101 et seq. and Omaha Municipal Code section 13-89, race, color, creed, religion, sex,
marital status, sexual orientation, gender identity, national origin, age, or disability.
B.Captions. Captions used in this Agreement are for convenience and are not used in the construction of
this Agreement.
C.Applicable Laws. Parties to this Agreement shall conform with all existing and applicable City
ordinances, resolutions, state laws, federal laws, and existing and applicable rules and regulations.
Nebraska law will govern the terms and the performance under this Agreement.
D.Interest of the City. Pursuant to Section 8.05 of the Home Rule Charter, no elected official or any
officer or employee of the City shall have a financial interest, direct or indirect, in any City Agreement.
Any violation of this section with the knowledge of the person or corporation contracting with the City
shall render the Agreement voidable by the Mayor or Council.
E.Interest of the Provider. The Provider covenants that he presently has no interest and shall not acquire
any interest, direct or indirect, which would conflict with the performance of services required to be
performed under this Agreement; he further covenants that in the performance of this Agreement, no
person having any such interest shall be employed.
F.Merger. This Agreement shall not be merged into any other oral or written agreement, lease, or deed of
any type. This is the complete and full Agreement of the parties.
G.Modification. This Agreement contains the entire Agreement of the parties. No representations were
made or relied upon by either party other than those that are expressly set forth herein. No agent,
employee, or other representative of either party is empowered to alter any of the terms hereof unless
done in writing and signed by an authorized officer of the respective parties.
H.Assignment. The Provider may not assign its rights under this Agreement without the express prior
written consent of the City.
I.Strict Compliance. All provisions of this Agreement and each and every document that shall be
attached shall be strictly complied with as written, and no substitution or change shall be made except
upon written direction from authorized representative.
J.LB 403 Contract Provisions.-NEW EMPLOYEE WORK ELIGIBILITY STATUS -The
Contractor is required and hereby agrees to use a federal immigration verification system to determine
the work eligibility status of new employees physically performing service within the State of
Nebraska. A federal immigration verification system means the electronic verification of the work
authorization program authorized by the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, 8 U.S.C. 1324a, known as the E-Verify Program, or an equivalent federal program designated
by the United States Department of Homeland Security or other federal agency authorized to verify the
work eligibility status of a newly hired employee.
If the Contractor is an individual or sole proprietorship, the following applies: 1. The Contractor must
complete the United States Citizenship Attestation Form, available on the Department of
Administrative Services website at www.das.state.ne.us 2. If the Contractor indicates on such
attestation form that he or she is a qualified alien, the Contractor agrees to provide the US Citizenship
and Immigration Services documentation required to verify the Contractor’s lawful presence in the
United States using the Systematic Alien Verification for Entitlements (SAVE) Program. 3. The
Contractor understands and agrees that lawful presence in the United States is required and the
Contractor may be disqualified or the contract terminated if such lawful presence cannot be verified as
required by Neb. Rev. Stat. §4-108.
K.Certificate of Authorization. If this Agreement contemplates the performance of professional
architecture or engineering work by the Provider, the Provider shall provide to the City, and maintain
in good standing, a current Certificate of Authorization from the State of Nebraska as required by Neb.
Rev. Stat. section 81-3436.
L.Debarment or suspension by any federal agency. (This section applies if any part of this Agreement is
funded by a federal agency.) Office of Management and Budget (OMB) guidelines require that any
individual or entity that has been placed on the Excluded Parties List System (“EPLS” - available for
review through www.sam.gov) may not be a participant in a federal agency transaction that is a
covered transaction or act as a principal of a person participating in one of those covered transactions.
These guidelines apply to covered transactions under a grant from any federal agency for which a
recipient expects to receive reimbursement for expenditures incurred or an advance on future
expenditures.
The Contractor providing goods and/or services to the City of Omaha certifies, by acceptance and
execution of this Agreement, that neither it nor its principals are presently debarred, suspended,
proposed for debarment, declared ineligible, or voluntarily excluded from participation in this
transaction by any federal department or agency. The Contractor further agrees, by accepting and
executing this Agreement, that it will include this clause without modification in all lower tier
transactions, solicitations, proposals, contracts, and subcontracts. Where the Contractor or any lower
tier participant is unable to certify this statement, it shall attach an explanation to this Agreement.
M.Contract Compliance Ordinance No. 35344, Section 10-192
Equal Employment Opportunity Clause
During the performance of this contract, the Contractor agrees as follows:
1)The Contractor shall not discriminate against any employee or applicant for employment because
of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, national
origin, age, or disability. The Contractor shall ensure that applicants are employed and that
employees are treated during employment without regard to their race, color, creed, religion, sex,
marital status, sexual orientation, gender identity, national origin, age, or disability. As used
herein, the word “treated” shall mean and include, without limitation, the following: recruited,
whether by advertising or by other means; compensated; selected for training, including
apprenticeship; promoted; upgraded; demoted; downgraded; transferred; laid off; and terminated.
The Contractor agrees to and shall post in conspicuous places, available to employees and
applicants for employment, notices to be provided by the contracting officers setting forth the
provisions of this nondiscrimination clause.
2)The Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of
the Contractor, state that all qualified applicants will receive consideration for employment
without regard to race, color, creed, religion, sex, marital status, sexual orientation, gender
identity, national origin, age, or disability.
3)The Contractor shall send to each labor union or representative of workers with which he has a
collective bargaining agreement or other contract or understanding a notice advising the labor
union or worker’s representative of the Contractor’s commitments under the Equal Employment
Opportunity Clause of the City and shall post copies of the notice in conspicuous places available
to employees and applications for employment.
4)The Contractor shall furnish to the Human Rights and Relations Director all Federal forms
containing the information and reports required by the Federal government for Federal contracts
under Federal rules and regulations, and including the information required by Sections 10-192 to
10-194, inclusive, and shall permit reasonable access to his records. Records accessible to the
Human Rights and Relations Director shall be those which are related to Paragraphs (1) through
(7) of this subsection and only after reasonable notice is given the Contractor. The purpose for
this provision is to provide for investigation to ascertain compliance with the program provided for
herein.
5)The Contractor shall take such actions with respect to any subcontractor as the City may direct as
a means of enforcing provisions of Paragraphs (1) through (7) herein, including penalties and
sanctions for noncompliance; however, in the event the Contractor becomes involved in or is
threatened with litigation as the result of such directions by the City, the City will enter into such
litigation as necessary to protect the interests of the City and to effectuate the provisions of this
division; and in the case of contracts receiving Federal assistance, the Contractor or the City may
request the United States to enter into such litigation to protect the interests of the United States.
6)The Contractor shall file and shall cause his subcontractors, if any, to file compliance reports with
the Contractor in the same form and to the same extent as required by the Federal government for
Federal contracts under Federal rules and regulations. Such compliance reports shall be filed with
the Human Rights and Relations Director. Compliance reports filed at such times as directed shall
contain information as to the employment practices, policies, programs and statistics of the
Contractor and his subcontractors.
7)The Contractor shall include the provisions of Paragraphs (1) through (7) of this Section, “Equal
Employment Opportunity Clause”, and Section 10-193 in every subcontract or purchase order so
that such provisions will be binding upon each subcontractor or vendor.
N.Conflict. In the event of any conflict between this Agreement and any of the exhibits attached hereto, the terms
of this Agreement shall take precedence.
EXHIBIT “A”
RESERVED
EXHIBIT “B”
SCOPE OF SERVICES
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Exhibit “B”
SCOPE OF SERVICES
Missouri Avenue Storm Sewer Outfall (OPW 53943)
This Scope of Services is Exbibit B of the Standard Agreement for Professional Services between
Jacobs Engineering Group Inc. (Provider), and the City of Omaha Public Works Department
(City) for a project generally described as OPW 53943 Missouri Avenue Storm Sewer Outfall
(Project).
Project Understanding:
The City has requested the Provider perform professional services to assist the City with
evaluation of existing conditions and preparation of alternatives for improvements to the
Missouri Avenue storm sewer from approximately Gibson Road to the outfall at the Missouri
River. Provider will prepare a conceptual design for the recommended alternative. This sewer
currently has a Consequence of Failure (COF) risk score of 4 out of 5, (with 5 being the highest
consequence), Likelihood of Failure (LOF) structural score of 2 out of 5, and LOF maintenance
score of 4 out of 5. The high COF score is mainly due to the sewer’s large size and close proximity
to a railroad and levee (the sewer crosses both). The LOF scores are based on National Association
of Sewer Companies (NASSCO) Pipeline Assessment Certification Program (PACP) scores from
2016 closed circuit television (CCTV) pipeline inspection data.
The Missouri Avenue storm sewer outfall is equipped with a bulkhead gate (FACILITY ID
0527003) located near the Missouri River south levee station SL-676+00 and a flap gate (0527004F)
located at the Missouri Avenue storm sewer outfall. Currently, the Missouri Avenue storm sewer
is a combined sewer connected to the Missouri Avenue lift station at the combined sewer
overflow (CSO) 117 diversion. The OPW 51997b Missouri Avenue/Spring Lake Phase 2 project
will complete the sewer separation in the CSO 117 drainage area and disconnect the Missouri
Avenue combined from the Missouri Avenue sanitary lift station at the CSO 117 diversion,
making this sewer a separate storm sewer. The OPW 51997b project is scheduled to be complete
by the end of 2020. The Packaging Corporation of America (PCA) private business is located
within the project area and during normal Missouri River levels, drain their storm runoff and
sanitary sewage to the Missouri Avenue storm and sanitary sewers, respectively. The PCA site is
also equipped with both storm and sanitary lift stations, which discharge into the Missouri
Avenue storm and sanitary sewer, respectively.
During normal river levels, the bulkhead gate is open and local stormwater is discharged into the
river through the Missouri Avenue storm sewer outfall. During high river levels, the low-lying
area between Gibson Road and the river are subject to inundation during local storm events. The
existing flap gate does not seal properly and during high river conditions, flows can surcharge
the storm sewer. The bulkhead gate is manually operated and during high river levels and locally
dry conditions the bulkhead gate is closed to prevent the storm sewer from surcharging. When
local rainfall is anticipated, the bulkhead is manually opened to allow PCA storm water pumps
to discharge to the river via the Missouri Avenue storm sewer outfall. When the river is high for
an extended period of time (requiring the bulkhead gate to be closed) and local rainfall occurs the
project area is susceptible to localized flooding until the bulkhead gate can be manually opened
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and the PCA storm sewer lift station is operated. Improvements to seal the flap gate will be
performed as part of OPW 51997b, however it is anticipated these improvements will be
temporary until permanent improvements such as replacement of the flap gate are implemented.
ARTICLE 1 - Scope of Services:
The Provider shall provide professional services to the City to complete the Project scope
described below. It is understood that Ms. Noma Bordé will serve as the City’s representative
throughout Project execution. Emily Holtzclaw will serve as the Provider’s Project Manager.
The Provider will provide the following services:
Task 1: Project Management and Data Review
1.1 Project Administration
Provider will perform contracting, invoicing, and management of Project team, budget,
and schedule. Provider will develop and implement a Health and Safety Plan and a Quality
Control (QC) Plan specific to the Project work. Provider will facilitate periodic progress meetings
and provide monthly progress reports and invoices in a format acceptable to the City. QC efforts
will be incorporated into the budget of individual tasks.
1.2 Kick Off Meeting
Provider will facilitate one 2-hour kick-off meeting with the City staff to discuss goals, scope and
schedule for the Project. Up to three (3) Provider team members will attend the Kick-Off Meeting.
Provider will prepare the meeting agenda with input from the City, will prepare and distribute
draft meeting summary for review and comment by the attendees, and will prepare and
distribute final meeting minutes.
1.3 Coordination Meetings
Provider will facilitate one 1-hour coordination meeting with the City staff, PCA staff, and others
as requested by the City to identify PCA concerns and discuss PCA facility operations within the
Project area. Provider will prepare the meeting agenda with input from the City, will prepare and
distribute draft meeting summary for review and comment by the attendees, and will prepare
and distribute final meeting minutes.
Provider will facilitate one 1-hour coordination meeting with the City staff, US Army Corps of
Engineers (USACE) levee program staff, and others as requested by City to coordinate with
USACE regarding the purpose of the Project and to identify USACE permitting requirements.
Based on input from the City, the preliminary assumption is that future replacement of the flap
gate or bulkhead gate would be an operations and maintenance (O&M) submittal to the USACE
and an amendment to the City’s levee O&M Manual. City staff indicated that the bulkhead gate
well has a hatch with open grates that can be removed to replace this gate. In general, future
excavation on or within the levee critical area will likely require more extensive coordination and
Technical Review submittals to the USACE, which are not included in this scope. Provider will
prepare the meeting agenda with input from the City, will prepare and distribute draft meeting
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summary for review and comment by the attendees, and will prepare and distribute final meeting
minutes.
Provider will facilitate one 1-hour coordination meeting with the BNSF Railroad staff if
recommended alternative includes work on BNSF property or within BNSF right-of-way.
Provider will prepare the meeting agenda with input from the City, will prepare and distribute
draft meeting summary for review and comment by the attendees, and will prepare and
distribute final meeting minutes.
Provider will facilitate up to six (6) additional periodic coordination meetings with the City as
needed to facilitate coordination between the Provider, the City, and other stakeholders.
1.4 Data Gathering and Review
Provider will gather and review as-built drawings, inspection data, and survey data to support
the Hydrologic and Hydraulic (H&H) evaluation (Task 3 below) and other analyses to support
the development of the Conceptual/Preliminary Design Report (Task 4 below). Known data
needs at this time include the following:
•Existing CCTV pipeline inspection data (videos and reports) in the project area provided
by the City
o 2011
o 2012
o 2016
o 2019/2020
•As-built plans for existing combined sewer (being converted to storm sewer in 2020 by
OPW 51997b Spring Lake Phase 2 sewer separation project) for suitability for pressure
conditions. These plans included but are not limited to:
o SOS 2182 (1962)
o CSDS 510 (1920)
o CSDS 512 (1915)
o OPW 51997 CSO 117 Missouri Ave/Spring Lake Park Phase 1 (2015)
o OPW 51997b CSO 117 Missouri Ave/Spring Lake Park Phase 2 (2020)
•City’s levee O&M Manual components relevant to the project areas.
•Survey data from the OPW 51997 and OPW 51997b projects. This includes information
regarding the closure of CSO 117 (Missouri Ave) diversion and repairs to the outfall flap
gate included in the OPW 51997b project.
•PCA storm sewer as-built plans and proposed improvements.
•As-built or other plans for the Missouri Avenue storm sewer outfall bulkhead gate, and
proposed improvements related to the ongoing Missouri River levee recertification.
Task 2 - Field Work
2.1 Field Investigation
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Provider will coordinate with City’s field services contractor (TREKK Design Group, LLC) to
scope the performance of a field investigation of the Missouri Ave storm sewer and project
components including the inlets, bulkhead gate, vaults, and flap gate. Provider will develop the
field investigation scope in coordination with City staff. This scope is expected to include at least
the following items: inspections of storm sewer structures and connectivity within the project
area (including 360 degree imagery of specific structures) and CCTV pipeline investigation per
City field inspection standards. It is assumed that TREEK is a NASSCO certified contractor. While
CCTV data are available from 2016, Provider recommends that the City conduct a new CCTV
pipeline investigation to assess the current condition of the pipe in the project area after the 2019
Missouri River flood event, during which this sewer was surcharged for an extended period.
Provider will coordinate with City staff to identify issues and concerns with the project area and
walk the parcels to the south of the project site to evaluate feasibility of alternatives. Costs of field
services completed by TREKK are not included in this scope of work and are assumed to be
covered under one of the City’s existing field services contracts with TREKK.
Survey of the project area is assumed to be performed by City survey staff and is assumed to
generally include survey of structure rim and invert elevations of the Project components.
2.2 Condition Assessment
Provider will perform a condition assessment on the Missouri Ave storm sewer from South 12th
Street to the Missouri River. Provider will review available as-built information, assess the
“sacrificial” concrete lining on the Missouri Ave storm sewer, and determine potential
recommended corrosion protection. Condition assessment shall consist of review of CCTV
pipeline inspection video and reports, including review of the NASSCO PACP scores. Provider
will review and interpret results of the CCTV inspection. Once the new CCTV inspection is
complete, if needed, Provider’s structural engineer will visit the site and perform additional
inspection of the Missouri Ave storm sewer to determine suitability for the pipe to be pressurized.
Results of the field investigation and onsite condition assessment will be summarized in the
Conceptual Design Report as described in Task 4.
Task 3 - H&H Evaluation
3.1 Model Update
Provider will use the City’s CSO Program InfoWorks ICM hydraulic model to evaluate the H&H
of the Missouri Avenue storm sewer in the Project area. Provider will refine the stormwater
subcatchments in the Project area for more resolution and accuracy regarding flows that drain to
the Missouri Avenue storm sewer. Provider will update elevations of pipe inverts, manhole rim
elevations, and inlet elevations in the model as needed from survey and as-built data.
3.2 Model Analysis
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Provider will perform an analysis of the existing hydraulic grade line (HGL) conditions in the
Missouri Avenue storm sewer to serve as a baseline for which to compare alternatives. The
proposed alternatives identified in Task 4 will be evaluated with downstream boundary
conditions on the Missouri River of USACE Construction Reference Plan (CRP) (typical
navigation season river level), the elevation when the Missouri Avenue bulkhead gate is normally
closed (29 feet at the I-480 bridge), and the 100-yr flood (34 ft at the Interstate-480 bridge) flood
stage. Simulations for each alternative will be based on modeling of local design storms to the
Missouri Avenue storm sewer in combination with the Missouri River downstream boundary
conditions noted above. The provider will show the HGLs of the Missouri Ave stormwater
system with Missouri River levels correlated to ground elevations near the Project area. City staff
have indicated that at the minor flood stage, the City closes the Missouri Ave storm sewer
bulkhead gate. The moderate flood stage is assumed to be 32 feet at the I-480 bridge.
Results of the model update and analysis will be presented at the periodic progress meetings
described in Task 1.1
Task 4 – Conceptual Design
4.1 Conceptual Design Report
Provider will prepare a Conceptual Design Report that describes and summarizes the existing
data used to develop the conceptual design. The conceptual design report will provide the results
from the H&H alternatives analysis including figures showing the HGL at each flood stage for
the identified alternatives. The condition of the Missouri Ave storm sewer will be summarized
along with findings from the CCTV inspection to be performed by others under separate contract
with the City. Provider will assess whether the pipe is structurally able to accommodate
pressurized flow based on the condition of the RCP.
Provider will identify up to four alternatives to mitigate stormwater surcharge. Feasibility and
fatal flaw analyses of each alternative will be performed. Alternatives are expected to include, at
least, provisions for surcharging the Missouri Avenue storm sewer and temporary by-pass
pumping connections for the City to use during high river conditions. For the alternatives
analysis it is assumed CSO 117 diversion to the Missouri Avenue lift station is closed and the 60-
inch x 60-inch Missouri Avenue storm sewer is separated. Provider will coordinate with the City’s
Construction Manager for status of completion for OPW 51997b Spring Lake Phase 2 Project
including the closure of CSO 117 diversion and the repairs to the flap gate at the outfall.
As part of the alternatives analysis a conceptual cost estimate will be provided for each
alternative. Provider will, with the City’s input, recommend an alternative. Conceptual plans and
figures for the recommended alternative will be developed and included in the conceptual design
report.
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Project Assumptions
The following assumptions are included in this scope of work.
•In addition to the limited additional survey described above, it is assumed that the
Provider will primarily utilize the City’s www.dogis.org website to obtain one foot
topographic and City utility information.
•This Scope of Services does not include subcontractor agreements, developing
construction documents and specifications, requests for proposal (RFP), or services
during construction (SDC).
•In the event there is a reasonable assessment as to the safety or health of personnel
because of the COVID-19 or related virus, Provider reserves the right to revise pricing,
resourcing or schedule accordingly. Additionally, in the event travel is required the
pricing and schedule set out in the scope assumes there are no travel
restrictions. Provider would directly coordinate with the City to mitigate and minimize
any delays, costs and other impacts.
Project Deliverables
The following deliverables will be provided as part of this Scope of Services.
•Final meeting minutes for listed coordination and progress meetings.
•Draft and final versions of Conceptual Design report in PDF format.
ARTICLE 2 - Schedule
The estimated Project schedule is based upon a Notice to Proceed from the City of (September
30, 2020). The project will be completed within 250 calendar days after the Notice to Proceed.
ARTICLE 3 - Compensation
Compensation by City to Provider for the proposed services described above will be as
described in attached Exhibit C.
EXHIBIT “C”
BREAKDOWN OF COSTS
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Exhibit “C”
COMPENSATION
Missouri Avenue Storm Sewer Outfall (OPW 53943)
Compensation by City of Omaha (City) to Jacobs Engineering Group Inc. (Provider for the proposed services
described in Exhibit B, Scope of Services will be as follows:
A. COST REIMBURSABLE-MULTIPLIER (TIME AND EXPENSE)
For services enumerated in the Scope of Services above, Provider’s Salary Costs multiplied by a factor of 2.13
Salary Cost Multiplier, plus Direct Expenses, plus a service charge of 10 percent on Direct Expenses and 10
percent of subcontracts and outside services, plus applicable sales, use, value added, business transfer, gross
receipts, or other similar taxes.
B. BUDGET
The maximum cost for this Project, as defined by services described in the Scope of Services outlined in Exhibit
B is Ninety-Nine Thousand, Seven Hundred and Thirty-Six Dollars and Fifty-Six Cents ($99,736.56), which will be
billed on a time and materials basis. Provider may utilize the compensation between individual tasks requested
by the City but shall not exceed the maximum amount of $99,736.56 unless approved in writing by the City
through a contract amendment to this agreement.
Provider is not obligated to incur costs beyond the indicated budgets, as may be adjusted, nor is City obligated
to pay Provider beyond these limits. When budget has been increased, Provider’s excess costs expended prior
to such increase will be allowable to the same extent as if such costs had been incurred after the approved
increase.
C. DIRECT EXPENSES
Direct Expenses are those necessary costs and charges incurred for the Project including, but not limited to: (1)
the direct costs of transportation and equipment and supplies; (2) Provider’s current standard rate charges for
direct use of Provider’s vehicles, laboratory test and analysis, and certain field equipment; and (3) Provider’s
standard project charges for computing systems, and special health and safety requirements of OSHA.
Compensation by City to Provider will be for professional services provided on a “time and materials” basis on
hourly rates for all labor with other direct costs, such as printing, reimbursed at a rate of 1.1 times actual cost. A
summary of labor hours per task and Provider’s standard hourly billing rates is included in Table C-1 below.
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TABLE C-1
Schedule of Hourly Rates, 2020*
Missouri Avenue Storm Sewer
Staff Name Role Hours Hourly
Rate Price
Task 1 Project Mgt and
Data Review
Emily Holtzclaw Senior Project Manager 30 $ 259.25 $ 7,777.57
Aaron Smith Task Lead 40 $ 172.81 $ 6,912.27
Nick Sutko Project Engineer 42 $ 193.42 $ 8,123.74
Tim Petty Lead Structural Engineer 8 $ 222.15 $ 1,777.17
Alex Sutherland Structural Engineer 4 $ 126.01 $ 504.05
Carla Arsenault Administrative/Accounting 4 $ 92.70 $ 370.78
Task 1 Total Labor 128 $ 25,465.58
Task 2 Field Work
Emily Holtzclaw Senior Project Manager 8 $ 259.25 $ 2,074.02
Aaron Smith Task Lead 32 $ 172.81 $ 5,529.81
Nick Sutko Project Engineer 32 $ 193.42 $ 6,189.52
John Bergin Condition Assessment Engineer 4 $ 222.23 $ 888.91
Ron Root Condition Assessment Engineer 20 $ 148.64 $ 2,972.84
Tim Petty Lead Structural Engineer 8 $ 222.15 $ 1,777.17
Alex Sutherland Structural Engineer 20 $ 126.01 $ 2,520.27
Task 2 Total Labor 124 $ 21,952.53
Task 3 H&H Evaluation
Emily Holtzclaw Senior Project Manager 1 $ 259.25 $ 259.25
Robert Magallon H&H Model Team 20 $ 103.19 $ 2,063.77
Task 3 Total Labor 21 $ 2,323.02
Task 4 Conceptual Design
Emily Holtzclaw Senior Project Manager 20 $ 259.25 $ 5,185.04
Dan Hegwald Quality Manager 6 $ 256.46 $ 1,538.77
Aaron Smith Task Lead 48 $ 172.81 $ 8,294.72
Robert Magallon H&H Model Team 24 $ 103.19 $ 2,476.53
Nick Sutko Project Engineer 54 $ 193.42 $ 10,444.81
John Bergin Condition Assessment Engineer 4 $ 222.23 $ 888.91
Ron Root Condition Assessment Engineer 6 $ 148.64 $ 891.85
3
Staff Name Role Hours Hourly
Rate Price
Tim Petty Lead Structural Engineer 6 $ 222.15 $ 1,332.87
Alex Sutherland Structural Engineer 24 $ 126.01 $ 3,024.32
Stephanie Miller Technician 56 $ 96.38 $ 5,397.26
Ed Meyer Constructability/Estimating 17 $ 273.50 $ 4,649.54
Carla Arsenault Administrative/Accounting 4 $ 92.70 $ 370.78
Task 4 Total Labor 269 $ 44,495.43
Total Labor 542 $ 94,236.56
Expenses $ 5,500.00
Total Project Cost $ 99,736.56
*Note: Hourly billing rates apply to all “Time and Materials” contracts, effective January 1, 2020. Labor rates
are based on a 2.13 Salary Cost Multiplier and may deviate from the values listed in the table based on
individuals actually performing the work and their actual raw labor rate at the time the services are
performed.
Non-Labor Rate Items
Mileage Rate Current IRS audit rate at time of service
Actual + 10 percent
Actual + 10 percent
Actual + 10 percent
Actual + 10 percent
Actual + 10 percent
Other related consumable supplies (field equipment
and supplies, etc.)
Postage, freight
Travel costs (airfare, hotel, care rental, meals, etc.)
Subcontractors and Outside Services
EXHIBIT "D" SUPPLEMENTAL PROVISIONS
EXHIBIT “D”
SUPPLEMENTAL PROVISIONS
Missouri Avenue Storm Sewer Outfall
ARTICLE 1. SCOPE OF SERVICES
Provider will perform the Scope of Services set forth in
Exhibit “B”.
ARTICLE 2. COMPENSATION
City will compensate Provider as set forth in Exhibit C.
Work performed under this AGREEMENT may be
performed using labor from affiliated companies of
Provider. Such labor will be billed to City under the
same billing terms applicable to Provider’s employees.
ARTICLE 3. TERMS OF PAYMENT
City will pay Provider as follows:
3.1 Invoices and Time of Payment
Provider will issue monthly invoices pursuant to Exhibit
“C”. Invoices are due and payable within 30 days of
receipt.
3.2 Interest
3.2.1 City will be charged interest at the rate of 1-
1/2% per month, or that permitted by law if lesser, on
all past-due amounts starting 30 days after receipt of
invoice. Payments will first be credited to interest and
then to principal.
3.2.2 In the event of a disputed billing, only the
disputed portion will be withheld from payment, and
City shall pay the undisputed portion. City will exercise
reasonableness in disputing any bill or portion thereof.
No interest will accrue on any disputed portion of the
billing until mutually resolved.
3.2.3 If City fails to make payment in full within 30
days of the date due for any undisputed billing, Provider
may, after giving 7 days' written notice to City, suspend
services under this AGREEMENT until paid in full,
including interest. In the event of suspension of
services, Provider will have no liability to City for delays
or damages caused by City because of such
suspension.
ARTICLE 4. OBLIGATIONS OF Provider
4.1 Standard of Care
The standard of care applicable to Provider's Services
will be the degree of skill and diligence normally
employed by professional engineers or consultants
performing the same or similar Services at the time
said services are performed. Provider will reperform
any services not meeting this standard without
additional compensation.
4.2 Subsurface Investigations
In soils, foundation, groundwater, and other subsurface
investigations, the actual characteristics may vary
significantly between successive test points and sample
intervals and at locations other than where observations,
exploration, and investigations have been made.
Because of the inherent uncertainties in subsurface
evaluations, changed or unanticipated underground
conditions may occur that could affect total PROJECT
cost and/or execution. These conditions and
cost/execution effects are not the responsibility of
Provider.
4.3 Provider's Personnel at Construction Site
4.3.1 The presence or duties of Provider's personnel
at a construction site, whether as onsite representatives
or otherwise, do not make Provider or Provider's
personnel in any way responsible for those duties that
belong to City and/or the construction contractors or
other entities, and do not relieve the construction
contractors or any other entity of their obligations, duties,
and responsibilities, including, but not limited to, all
construction methods, means, techniques, sequences,
and procedures necessary for coordinating and
completing all portions of the construction work in
accordance with the construction Contract Documents
and any health or safety precautions required by such
construction work.
4.3.2 Provider and Provider's personnel have no
authority to exercise any control over any construction
contractor or other entity or their employees in
connection with their work or any health or safety
precautions and have no duty for inspecting, noting,
observing, correcting, or reporting on health or safety
deficiencies of the construction contractor(s) or other
entity or any other persons at the site except Provider's
own personnel.
4.3.3 The presence of Provider's personnel at a
construction site is for the purpose of providing to City a
greater degree of confidence that the completed
construction work will conform generally to the
construction documents and that the integrity of the
design concept as reflected in the construction
documents has been implemented and preserved by the
construction contractor(s). Provider neither guarantees
the performance of the construction contractor(s) nor
assumes responsibility for construction contractor's
failure to perform work in accordance with the
construction documents.
For this AGREEMENT only, construction sites include
places of manufacture for materials incorporated into
the construction work, and construction contractors
include manufacturers of materials incorporated into the
construction work.
4.4 Opinions of Cost, Financial Considerations, and
Schedules
In providing opinions of cost, financial analyses,
economic feasibility projections, and schedules for the
PROJECT, Provider has no control over cost or price of
labor and materials; unknown or latent conditions of
existing equipment or structures that may affect
operation or maintenance costs; competitive bidding
procedures and market conditions; time or quality of
performance by operating personnel or third parties; and
other economic and operational factors that may
materially affect the ultimate PROJECT cost or
schedule. Therefore, Provider makes no warranty that
City's actual PROJECT costs, financial aspects,
economic feasibility, or schedules will not vary from
Provider's opinions, analyses, projections, or estimates.
If City wishes greater assurance as to any element of
PROJECT cost, feasibility, or schedule, City will employ
an independent cost estimator, contractor, or other
appropriate advisor.
4.5 Construction Progress Payments
Recommendations by Provider to City for periodic
construction progress payments to the construction
contractor(s) will be based on Provider's knowledge,
information, and belief from selective sampling that the
work has progressed to the point indicated. Such
recommendations do not represent that continuous or
detailed examinations have been made by Provider to
ascertain that the construction contractor(s) have
completed the work in exact accordance with the
construction documents; that the final work will be
acceptable in all respects; that Provider has made an
examination to ascertain how or for what purpose the
construction contractor(s) have used the moneys paid;
that title to any of the work, materials, or equipment has
passed to City free and clear of liens, claims, security
interests, or encumbrances; or that there are not other
matters at issue between City and the construction
contractors that affect the amount that should be paid.
4.6 Record Drawings
Record drawings, if required, will be prepared, in part,
on the basis of information compiled and furnished by
others, and may not always represent the exact
location, type of various components, or exact manner
in which the PROJECT was finally constructed.
Provider is not responsible for any errors or
omissions in the information from others that is
incorporated into the record drawings.
4.7 Access to Provider's Accounting
RecordsReserved Provider will maintain accounting
records, in accordance with generally accepted
accounting principles. These records will be available to
City during Provider's normal business hours for a
period of 1 year after Provider's final invoice for
examination to the extent required to verify the direct
costs (excluding established or standard allowances
and rates) incurred hereunder. City may only audit
accounting records applicable to a cost-reimbursable
type compensation.
4.8 Provider's Insurance
Provider will maintain throughout this AGREEMENT
the following insurance:
(a) Worker's compensation and employer's liability
insurance as required by the state where the work is
performed.
(b) Comprehensive automobile and vehicle liability
insurance covering claims for injuries to members of the
public and/or damages to property of others arising from
use of motor vehicles, including onsite and offsite
operations, and owned, nonowned, or hired vehicles,
with $1,000,000 combined single limits.
(c) Commercial general liability insurance covering
claims for injuries to members of the public or damage
to property of others arising out of any covered
negligent act or omission of Provider or of any of its
employees, agents, or subcontractors, with $1,000,000
per occurrence and in the aggregate.
(d) Professional liability insurance of $1,000,000
per occurrence and in the aggregate.
(e) City will be named as an additional insured
with respect to Provider's liabilities hereunder in
insurance coverages identified in items (b) and (c) and
Provider waives subrogation against City as to said
policies.
ARTICLE 5. OBLIGATIONS OF City
5.1 City-Furnished Data
City will provide to Provider all data in City's possession
relating to Provider's services on the PROJECT.
Provider will reasonably rely upon the accuracy,
timeliness, and completeness of the information
provided by City.
5.2 Access to Facilities and Property
City will make its facilities accessible to Provider as
required for Provider's performance of its services and
will provide labor and safety equipment as required by
Provider for such access. City will perform, at no cost to
Provider, such tests of equipment, machinery, pipelines,
and other components of City's facilities as may be
required in connection with Provider's services.
5.3 Advertisements, Permits, and Access
Unless otherwise agreed to in the Scope of Services,
City will obtain, arrange, and pay for all
advertisements for bids; permits and licenses required
by local, state, or federal authorities; and land,
easements, rights-of-way, and access necessary for
Provider's services or PROJECT construction.
5.4 Timely Review
City will examine Provider's studies, reports, sketches,
drawings, specifications, proposals, and other
documents; obtain advice of an attorney, insurance
counselor, accountant, auditor, bond and financial
advisors, and other consultants as City deems
appropriate; and render in writing decisions required by
City in a timely manner.
5.5 Prompt Notice
City will give prompt written notice to Provider
whenever City observes or becomes aware of any
development that affects the scope or timing of
Provider's Services, or of any defect in the work of
Provider or construction contractors.
5.6 Asbestos or Hazardous Substances
5.6.1 If asbestos or hazardous substances in any
form are encountered or suspected, Provider will
stop its own work in the affected portions of the
PROJECT to permit testing and evaluation.
5.6.2 If asbestos is suspected, Provider will, if
requested, manage the asbestos remediation activities
using a qualified subcontractor at an additional fee and
contract terms to be negotiated.
5.6.3 If hazardous substances other than asbestos
are suspected, Provider will, if requested, conduct
tests to determine the extent of the problem and will
perform the necessary studies and recommend the
necessary remedial measures at an additional fee and
contract terms to be negotiated.
5.6.4 Client recognizes that Provider assumes no
risk and/or liability for a waste or hazardous waste site
originated by other than Provider.
5.7 Contractor Indemnification and ClaimsReserved
5.7.1 City agrees to include in all construction
contracts the provisions of Article 4.3, Provider's
Personnel at Construction Site, and provisions providing
contractor indemnification of City and Provider for
contractor's negligence.
5.7.2 City shall require construction contractor(s)
to name City and Provider as additional insureds on
the contractor’s general liability insurance policy.
5.7.3 City agrees to include the following clause in
all contracts with construction contractors, and
equipment or materials suppliers:
“Contractors, subcontractors, and equipment and
material suppliers on the PROJECT, or their sureties,
shall maintain no direct action against Provider,
Provider's officers, employees, affiliated corporations,
and subcontractors for any claim arising out of, in
connection with, or resulting from the engineering
services performed. City will be the only beneficiary of
any undertaking by Provider."
5.8 City's InsuranceReserved
5.8.1 City will maintain property insurance on all pre-
existing physical facilities associated in any way with
the PROJECT.
5.8.2 City will provide for a waiver of subrogation as
to all City-carried property damage insurance, during
construction and thereafter, in favor of Provider,
Provider's officers, employees, affiliates, and
subcontractors.
5.8.3 City will provide (or have the construction
contractor(s) provide) a Builders Risk All Risk insurance
policy for the full replacement value of all PROJECT
work including the value of all onsite City-furnished
equipment and/or materials associated with Provider's
services. Such policy will include coverage for loss due
to defects in materials and workmanship and errors in
design, and will provide a waiver of subrogation as to
Provider and the construction contractor(s) (or City),
and their respective officers, employees, agents,
affiliates, and subcontractors. City will provide Provider
a copy of such policy.
5.9 Litigation Assistance
The Scope of Services does not include costs of
Provider for required or requested assistance to
support, prepare, document, bring, defend, or assist in
litigation undertaken or defended by City. All such
Services required or requested of Provider by City,
except for suits or claims between the parties to this
AGREEMENT, will be reimbursed as mutually agreed.
5.10 Changes
City may make or approve changes within the general
Scope of Services in this AGREEMENT. If such
changes affect Provider's cost of or time required for
performance of the services, an equitable adjustment
will be made through an amendment to this
AGREEMENT.
ARTICLE 6. GENERAL LEGAL PROVISIONS
6.1 Authorization to Proceed
Execution of this AGREEMENT by City will be
authorization for Provider to proceed with the work,
unless otherwise provided for in this AGREEMENT.
6.2 Reuse of PROJECT Documents
All reports, drawings, specifications, documents, and
other deliverables of Provider, whether in hard copy or
in electronic form, are instruments of service for this
PROJECT, whether the PROJECT is completed or not.
City agrees to indemnify Provider and Provider's
officers, employees, subcontractors, and affiliated
corporations from all claims, damages, losses, and
costs, including, but not limited to, litigation expenses
and attorney's fees arising out of or related to the
unauthorized reuse, change or alteration of these
PROJECT documents.
6.3 Force Majeure
Provider is not responsible for damages or delay in
performance caused by acts of God, strikes, lockouts,
accidents, or other events beyond the control of
Provider. In any such event, Provider’s contract price
and schedule shall be equitably adjusted.
6.4 Limitation of Liability
6.4.1 To the maximum extent permitted by law,
Provider's liability for City's damages will not, in the
aggregate, exceed $100,000.
6.4.2 This article takes precedence over any
conflicting article of this AGREEMENT or any
document incorporated into it or referenced by it.
6.4.36.4.2 This limitation of liability will apply
whether Provider’s liability arises under breach of
contract or warranty; tort; including negligence; strict
liability; statutory liability; or any other cause of action,
and shall include Provider’s officers, affiliated
corporations, employees, and subcontractors.
6.5 Termination
6.5.1 This AGREEMENT may be terminated for
convenience on 30 days' written notice, or for cause if
either party fails substantially to perform through no fault
of the other and does not commence correction of such
nonperformance within 5 days of written notice and
diligently complete the correction thereafter.
6.5.2 On termination, Provider will be paid for all
authorized services performed up to the termination
date plus termination expenses, such as, but not limited
to, reassignment of personnel, subcontract termination
costs, and related closeout costs.
6.6 Suspension, Delay, or Interruption of Work City
may suspend, delay, or interrupt the Services of
Provider for the convenience of City. In such event,
Provider's contract price and schedule shall be
equitably adjusted.
6.7 No Third-Party Beneficiaries
This AGREEMENT gives no rights or benefits to anyone
other than City and Provider and has no third- party
beneficiaries.
6.8 IndemnificationReserved
6.8.1 Provider agrees to indemnify City for any
claims, damages, losses, and costs, including, but not
limited to, attorney's fees and litigation costs, arising out
of claims by third parties for property damage or bodily
injury, including death, to the proportionate extent
caused by the negligence or willful misconduct of
Provider, Provider's employees, affiliated corporations,
and subcontractors in connection with the PROJECT.
6.8.2 City agrees to indemnify Provider from any
claims, damages, losses, and costs, including, but not
limited to, attorney's fees and litigation costs, arising
out of claims by third parties for property damage or
bodily injury, including death, to the proportionate
extent caused by the negligence or willful misconduct
of City, or its employees or contractors in connection
with the PROJECT.
6.9 Assignment
This is a bilateral personal Services AGREEMENT.
Neither party shall have the power to or will assign any
of the duties or rights or any claim arising out of or
related to this AGREEMENT, whether arising in tort,
contract or otherwise, without the written consent of
the other party. Any unauthorized assignment is void
and unenforceable. The parties further agree that
Provider may novate this AGREEMENT to an affiliate
in the case of normal corporate restructuring, provided
any such novation does not adversely affect its ability
to perform this AGREEMENT. These conditions and
the entire AGREEMENT are binding on the heirs,
successors, and assigns of the parties hereto.
6.10 Consequential DamagesReserved
To the maximum extent permitted by law, Provider
and Provider's affiliated corporations, officers,
employees, and any of their subcontractors, shall not
be liable to forthe other City’s for any special, indirect,
or consequential damages, whether such damages
arise out of breach of contract or warranty, tort
including negligence, strict or statutory liability, or any
other cause of action. In order to protect Provider
against indirect liability or third-party proceedings, City
will indemnify Provider for any such damages.
6.11 WaiverReserved
City waives all claims against Provider, including
those for latent defects, that are not brought within 2
years of substantial completion of the facility designed
or final payment to Provider, whichever is earlier.
6.12 Jurisdiction
The substantive law of the state of the PROJECT site
shall govern the validity of this AGREEMENT, its
interpretation and performance, and any other claims
related to it.
6.13 Severability and Survival
6.13.1 If any of the Provisions contained in this
AGREEMENT are held for any reason to be
invalid, illegal, or unenforceable, the
enforceability of the remaining provisions shall
not be impaired thereby.
6.13.2 Limitations of liability, indemnities, and other
express representations shall survive termination of
this AGREEMENT for any cause.
6.14 Materials and Samples
Any items, substances, materials, or samples
removed from the PROJECT site for testing, analysis,
or other evaluation will be returned to the PROJECT
site within 60 days of PROJECT close-out unless
agreed to otherwise. City recognizes and agrees that
Provider is acting as a bailee and at no time assumes
title to said items, substances, materials, or samples.
6.15 Engineer’s Deliverables
Engineer’s deliverables, including record drawings,
are limited to the sealed and signed hard copies.
Computer- generated drawing files furnished by
Provider are for City or others' convenience. Any
conclusions or information derived or obtained from
these files will be at user's sole risk.
6.16 Dispute Resolution
The parties will use their best efforts to resolve
amicably any dispute, including use of alternative
dispute resolution options.
6.17 Ownership of Work Product and
InventionsReserved
All of the work product of the Provider in executing
this PROJECT shall remain the property of
Provider. City shall receive a perpetual, royalty-
free, non- transferable, non-exclusive license to
use the deliverables for the purpose for which
they were intended. Any inventions, patents,
copyrights, computer software, or other intellectual
property developed during the course of, or as a
result of, the PROJECT shall remain the property
of the Provider.
6.18 Intellectual Property
City acknowledges and agrees that in the
performance of the development service, Provider
may utilize its proprietary data, concepts, methods,
techniques, processes, protocols, ideas, inventions,
know-how, trade secrets, algorithm, software,
works of authorship, software and hardware
architecture, databases, tools, other background
technologies and standards of judgment that
Provider developed or licensed from third parties
prior to the Effective Date (the “Pre-Existing
Technology”).
Subject to the terms and conditions of this
AGREEMENT, Provider hereby grants to City a
non-exclusive, non-transferable, royalty-free license
under Provider’s Intellectual Property Rights to
utilize the Pre-Existing Technology for the purpose
of the City Project.
City shall not, and shall not allow any third party to:
(i) modify or otherwise create derivative works of
the Pre-Existing Technology; (ii) use the Pre-
Existing Technology for any other purpose, other
than the City Project; (iii) make, have made, use,
reproduce, license, display, perform, distribute, sell,
offer for sale, service, support, or import any
product that incorporates, embodies and/or is
based upon the Pre-Existing Technology; (iv)
sublicense, distribute or otherwise transfer to a third
party any of the Pre-Existing Technology by itself or
as incorporated into software or hardware; or (v)
reverse engineer, disassemble, decompile or
attempt to derive the source code or underlying
ideas or algorithms of the Pre-Existing
Technology. Any additional use of the Pre-Existing
Technology shall require a separate written license
agreement.