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RES 2022-1180 - PSA with Foleyshald Engineering for J. Creighton Blvd Trail Redesign - ARPA Funding City Clerk Office Use Only: � igTh Publication Date (if applic.ble): RESOLUTION NO. Agenda Date: Department: r ,. Submitter: � , CITY OF OMAHA LEGISLATIVE CHAMBER Omaha, Nebraska WHEREAS, Foleyshald Engineering was awarded a Professional Services Agreement for the Paxton/John Creighton Boulevard Trail with FoleyShald Engineering, to provide topo plans and civil engineering plans to redesign the trail to work within the parameters of the given public property, creating a 10'-0" wide concrete trail, located at 4407 Fontanelle Boulevard to 34th Avenue and Maple Street, Omaha, Nebraska, in the amount of$95,100.00, for the Parks, Recreation, and Public Property Department; and, WHEREAS, in accordance with Omaha Municipal Code, Section 10-187, FoleyShald Engineering was selected and has agreed to provide professional services for the project as delineated in the attached Professional Services Agreement, which by this reference is made a part hereof; and, WHEREAS, FoleyShald Engineering has complied with the City's Contract Compliance Ordinance No. 28885 in relation to Civil Rights - Human Relations; and, WHEREAS, the Mayor has recommended acceptance of this Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: THAT, as recommended by the Mayor, the Resolution in the total amount of $95,100.00 for FoleyShald Engineering to perform professional services for the Paxton/John Creighton Boulevard Trail, located at 4407 Fontanelle Boulevard to 34th Avenue and Maple Street, Omaha, Nebraska, for Parks, Recreation, and Public Property Department, is hereby approved. The Finance Department is authorized to pay the total amount of $95,100.00 from The Covid Relief Fund 17115, Organization No. 115012, Park Planning, the City of Omaha will be reimbursed by American Rescue Plan Act (ARPA). p:2990mtc APP DASTOFO 1717) r� DEPUTY CITY ATTORNEY DATE Adopted: 1 �V Attest: City Clerk c. Approved: Mayor PROFESSIONAL SERVICES AGREEMENT of ryce rn " THIS AGREEMENT is herebymade and entered into this day , 2022, by and between the City of Omaha, a municipal corporation located in Douglas County, Nebraska (hereinafter referred to as the "City"), and FoleyShald Engineering, 14503 Grover Street, Suite 102, Omaha, NE. 681444 (hereinafter referred to as the "Provider"),on the terms,conditions and provisions as set forth herein below. I. PROJECT NAME AND DESCRIPTION A. ARPA Project: Paxton I J.Creighton Blvd.Trail 4407 Fontenelle Blvd to/34th Ave.and Maple Omaha, NE 68104 II. DUTIES OF PROVIDER A. Provider agrees to perform professional services, as set out and more fully described in the ARPA Project:Paxton/John Creighton Blvd Trail,dated October 1,2022, attached hereto,for the City, relative to the above referenced project. Such services shall be completed within a reasonable period after receipt of a purchase order from the City. B. Provider designates, Joseph Foley of FoleyShald Engineering as its project managers and contact persons 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 sub-consultants, a copy of which is provided in the attached Agreement For The Provision Of Limited Professional Services. E. Provider agrees to complete within NUMBER (26) CALENDAR WEEKS not including Bidding and Negotiation after receipt of a signed agreement and a formal notice to proceed from the City,all items discussed in the Scope of Services. The City recognizes that completion within this deadline is contingent upon timely meeting schedules and City input. Provider shall furnish the City with one(1)complete hard copy set of the final documents, including plans, specifications and meeting notes and one (1) complete Digital copy of all documents,including plans,specifications and meeting notes if applicable. Word documents and spread sheets shall be provided in the latest format of MS Word and Excel. Drawings, if applicable shall be provided in CAD format compatible with AutoCAD 2018. F. Provider shall be responsible for reviewing all project plans and specifications with appropriate departments and agencies for compliance with City ordinances, state and federal law, building, plumbing, electric and fire codes and other pertinent laws and regulations. Professional Services Agreement—Paxton-John Creighton Boulevard Trail ARPA Project 6663.605 FoleyShald Engineering III. DUTIES OF CITY A. City designates Hal Blevins PPII 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. IV. COMPENSATION AND PAYMENT A. The cost of services as specified in the Scope of Services,shall be performed on an hourly basis,but in no event shall exceed Ninety-Five Thousand One Hundred DOLLARS($95,100.00). The hourly basis shall be as set out in Exhibit.The express written consent of the City shall be required in order to exceed said amount. B. Reimbursable expenses for Paxton-John Creighton Boulevard Trail shall be billed to the City by the Provider at actual cost. Detailed itemization of such expenses shall be made available to the City upon request. In no event shall such expenses exceed Ninety-Five Thousand One Hundred DOLLARS ($95,100.00). without the prior written approval of the City of Omaha. C. Provider shall complete and return to the City a W-9 form,copy attached,as required by the City prior to any payments being made to the Provider. D. Provider shall submit periodic invoices to the City contact person, detailing services performed and the cost thereof. City shall pay such invoices within thirty(30)calendar days after the date of the invoice. E. INCREASE OF FEES 1. The parties hereto acknowledge that, as of the date of the execution of the Agreement, §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 (10%), 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 or the authorization of any additional work in excess of such limits. However, neither contract nor purchase amendments will be split to avoid advance approval of the City Council. 2. 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§5.16 of the Charter to approve immediate purchases. V. OWNERSHIP A. The City acknowledges the Provider's construction 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 construction documents prepared under this Agreement shall become the property of the City. The City shall not reuse at another site or make any modification to the construction documents without Professional Services Agreement—Paxton-John Creighton Boulevard Trail ARPA Project 6663.605 FoleyShald Engineering the 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 sub-consultants (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 construction documents by the City, regardless of whether such reuse or modification is for use at the Project site or another site. VI. ADDITIONAL SERVICES A. In the event additional services for the aforementioned project not covered under this agreement are required, Provider agrees to provide such services at a mutually agreed upon cost. VII. INSURANCE REQUIREMENTS A. Provider shall carry professional liability insurance in the minimum amount of five hundred thousand dollars ($500,000) and shall carry workers' compensation insurance in accordance with the statutory requirements of the State of Nebraska. VI II. INDEMNIFICATION A. The Provider agrees, to the fullest extent permitted by law,to indemnify and hold harmless the City, its officers,directors and employees(collectively,City)against all damages,liabilities or costs,including reasonable attorneys'fees and defense costs,to the extent caused by the Provider's negligent performance of professional services under this Agreement and that of its sub-consultants 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 insurance.The City agrees,to the fullest extent permitted by law, to indemnify and hold harmless the Provider, its officers, directors, employees and sub-consultants (collectively,Provider)against all damages,liabilities or costs,including reasonable attorneys'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 manner whatsoever for the other party's own negligence. IX. TERMINATION OF AGREEMENT A. 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)calendar 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, sex, age, political or religious opinions, affiliations or national origin or disability/handicap in the selection of sub-consultants, Professional Services Agreement—Paxton-John Creighton Boulevard Trail ARPA Project 6663.605 FoleyShald Engineering including procurements of materials and leases of equipment as recognized under 42 USCS 12101 et seq.and Omaha Municipal Code§13-89. B. Captions. Captions used in this agreement are for convenience and are not used in the construction of this agreement. C. Applicable law. Parties to this agreement shall conform with all existing and applicable city ordinances, resolutions, state laws, federal laws, and all 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 §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. Mercier. 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. Contract compliance Ordinance No. 35344, 410-192—Equal Employment Opportunity Clause. During the performance of this contract,the Consultant agrees as follows: 1) The Consultant shall not discriminate against any employee applicant for employment because of race, religion, color,sex,age,sexual orientation, gender identity,disability,or national origin as defined by the Americans With Disabilities Act of 1990 and Omaha Municipal Code 13-89. The Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, sex, age, sexual orientation, gender identity, disability,or national origin. The Consultant shall take all actions necessary to comply with the Americans With Disabilities Act of 1990 and Omaha Municipal Code (Chapter 13) including, but not limited to reasonable accommodation. As used herein, the word "treated" shall mean and include, without limitation, the following: Recruited, whether advertising or by other means; compensated; selected for training; laid off; and terminated. The Consultant 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. Professional Services Agreement—Paxton-John Creighton Boulevard Trail ARPA Project 6663-605 FoleyShald Engineering 2) The Consultant shall,in all solicitations or advertisements for employees placed by or on behalf of the Consultant,state that all qualified applicants will receive consideration for employment without regard to race, religion,color,sex,age,sexual orientation,gender identity,disability,or national origin. 3) The Consultant 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 Consultant'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 applicants for employment. 4) The Consultant shall furnish to the contract compliance officer 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 §§10-192 to 10-194, inclusive, and shall permit reasonable access to his records. Records accessible to the contract compliance officer shall be those which are related to paragraphs (1) through (7) of this subsection and only after reasonable notice is given the Consultant. The purpose of this provision is to provide for investigation to ascertain compliance with the program provided for herein. 5) The Consultant shall take such actions with respect to any sub-consultant as the city may direct as a means of enforcing the provisions of paragraphs (1) through (7) herein, including penalties and sanctions for noncompliance;however,in the event the Consultant becomes involved in or is threatened with litigation as the result of such direction by the City, the City will enter into such litigation as is necessary to protect the interests of the City and to effectuate these provisions (of this division);and in the case of contracts receiving federal assistance, the Consultant or the City may request the United States to enter into such litigation to protect the interests of the United States. 6) The Consultant shall file and shall cause his sub-consultants,if any to file compliance reports with the Consultant 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 contract compliance officer. Compliance reports filed at such times as directed shall contain information as to the employment practices, policies, programs,and statistics of the Consultant and his sub-consultants. 7) The Consultant shall include the provisions of paragraphs (1) through (7) of this section, "Equal Employment Opportunity Clause," and §10-193 in every subcontract of purchase order so that such provisions will be binding upon each sub-consultants or vendor. K. New Employee Work Eligibility Status(Neb. Rev. Stat. 44-108-114)-Contract Provisions. 1) The Consultant is required and hereby agrees to use a federal immigration verification system to determine the work eligibility status of new employees physically performing services within the State of Nebraska. A federal immigration verification system means the electronic verification of the work authorization program authorized by the Illegal Immigration Reformation 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. 2) If the Consultant is an individual or sole proprietorship,the following applies: Professional Services Agreement—Paxton-John Creighton Boulevard Trail ARPA Project 6663-605 FoleyShald Engineering a. The Consultant must complete the United States Citizenship Attestation Form,available on the Department of Administrative Services website at www.das.state.ne.us. b. If the Consultant indicates on such attestation form that he or she is a qualified alien, the Consultant agrees to provide the US Citizenship and Immigration Services documentation required to verify the Consultant's lawful presence in the United States using the Systematic Alien Verification for Entitlements(SAVE)Program. c. The Consultant understands and agrees that lawful presence in the United States is required and the Consultant may be disqualified or the contract terminated if such lawful presence cannot be verified as required by Neb. Rev. Stat.§4-108. L. Independent Contractor. It is understood and agreed by and between the parties that any and all acts that the Provider or its employees, agents, contractors, or servants perform pursuant to the terms of the Agreement shall be undertaken as independent contractors and not as employees of the City. Neither Provider nor any of its employees or agents shall be construed to be the employee or agent of the City for any purpose whatsoever. Provider shall not be entitled to any benefits of the City. The City shall not provide any insurance coverage to the Provider or its respective employees including, but not limited to workers' compensation insurance. Provider and the City shall be responsible for all reports, obligations, and payments pertaining to social security taxation, income tax withholding, workers' compensation, unemployment compensation, group insurance coverage, collective bargaining agreements,or any other such similar matters. Provider shall have no authority to bind the City by or with any contract or agreement, nor to impose any liability upon the City. All acts and contracts of the Provider shall be in its own name and not in the name of the City, unless otherwise provided herein. Professional Services Agreement—Paxton-John Creighton Boulevard Trail ARPA Project 6663.605 FoleyShald Engineering EXECUTED this /i " day of 4 ✓en the/- , 20 22 by WITNESS ?-4- / / /"E e (t TITLE EXECUTED this a f , 20 22 by Deputy City omey EXECUTED this I C --WN. day of VT 'e*r' ,20 22 C9_0Omaha,a unicipal Corp. Iizabeth Butler, City Cie' Jean Stothert, Mayor City of Omaha City of Omaha Professional Services Agreement—Paxton-John Creighton Boulevard Trail ARPA Project 6663-605 FoleyShald Engineering EXHIBIT"A" Revised: 6/2011 Utilization of Small and Emerging Small Businesses It is the policy of the City of Omaha that Small and Emerging Small Businesses shall have the maximum practicable opportunity to participate in City of Omaha projects. With regard to this project, the following Certified Professional Service Provider(s)have been identified and contracted with to perform the identified project tasks: Scope of work or Projected project tasks to commenceme Name of small or be performed nt and Agreed price emerging small Address completion with SBIESB Percentage(%) business date of work <<-lA(cf fy 14(0+c/y7" 3 G.2',P-stagy " A// tif,4//,o -' En d A 62,-1—rC-1--4/�I.io .,/UL> /&C)X Totals ;2.C/5 /U/ ) 2 CERTIFICATION The undersigned certifies that he/she is legally authorized by the Provider to make the statements and representations regarding small and/or emerging small business participation and that said statements and representations are true and correct to the best of his/her knowledge and belief. The undersigned will enter into formal agreement(s)with the identified small and/or emerging small business(es)(which are otherwise deemed by the City of Omaha to be technically responsible to perform the work)at the price(s)set forth in this Exhibit conditioned upon execution of this Agreement by the Provider with the City of Omaha. The undersigned/Provider agrees that if any of the representations made regarding utilization of small and/or emerging small business by the Provider knowing them to be false,or if there is a failure by the Provider to implement the stated agreements, intentions,objectives,goals,and comments set forth herein without prior approval of the Public Works Director,such action shall constitute a material breach of the agreement,entitling the City of Omaha to terminate the Agreement for default. The right to so terminate shall be in addition to, and not in lieu of,any other rights or remedies the City of Omaha may have for other defaults under the Agreement, under City of Omaha's Contract Compliance Ordinance or otherwise. Additionally,the undersigned/Provider will be subje�j s-tJ a rms of any future professional service awards. Signature Title !'TS gfr-7-1--- Date of Signing ////F/),-9 Firm or Corporate Name .�//plcG i/G �/� l./ c 'E� t 4-4 L <<< Address /G/ C Shi-i4;4%- eg Telephone Number 1--/0 — �i 1/- 367I} 6.�'10 /c, /7/: End of Exhibit A Professional Services Agreement-Paxton-John Creighton Boulevard Trail ARPA Project 6663.605 FoleyShald Engineering SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by EJCDC,t= ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE Issued and Published Jointly by ACEC AMERICAN COUNCIL OF ENGINEERING COMPANIES AscE. AMERICAN SOCIETY OF CIVIL ENGINEERS 0 National Society of Professional Engineers® EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. a r Copyright©2015: National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703)684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W., Washington,DC 20005 (202)347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive,Reston,VA 20191-4400 (800) 548-2723 www.asce.org The copyright for this EJCDC document is owned jointly by the three sponsoring organizations listed above. The National Society of Professional Engineers is the Copyright Administrator for the EJCDC documents; please direct all inquiries regarding EJCDC copyrights to NSPE. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of ,2022("Effective Date")between the City of Omaha ("Owner")and FoleyShald Engineering("Engineer"). Owner's Project,of which Engineer's services under this Agreement are a part, is generally identified as follows: Paxton-John Creighton Blvd Trail Improvement Project Engineer's services under this Agreement are generally identified as follows: The City of Omaha Parks,Recreation and Public Property Department has identified the Paxton—John Creighton Boulevard Trail,running from the parking lot of Fontenelle Park,to the Maple Street on the south edge of Adams Park, with the exception of an approximate 600 if segment at the northeast corner of Adams Park, for a total project length of approximately 10,800 if of existing trail. The project will include the survey of the proposed corridor, evaluation of the existing trail system, and the design of improvements for a 10-ft wide pcc trail. Our anticipated services include the following: Task 1: Boundary and Topographic Survey • Complete boundary and topographic survey of the project corridor, generally from the street curb and gutter to the adjacent property lines. For the segment of existing trail which currently is within the green space between Paxton and Sprague, the survey will include the green space and trail out the curbs of each street. • The survey will meet the following requirements: o Contours will be at 1 ft maximum intervals o Datum will be USGS. o A minimum three(3)benchmarks will be established. o Spot elevations at grade changes including steps,retaining walls,trees, ramps curbs, pavement edges etc. o Include sizes, locations,materials,top of frame and inverts of know below ground utilities. o Show all above ground utilities and utility identification. o Denote all site features. o Survey data will be provided in Autocad format with a written list of layout names used. o All property lines and easements within the survey corridor will be shown. Task 2: Preliminary Design • Prepare a 30% Plan Set for Review. o Field review of survey and identification of potential conflicts. o Development of the proposed alignment,profile and construction impacts concept plans. • Prepare 30%Engineers Opinion of Probable Costs • Meeting with Owner to discuss results of preliminary design. Task 3: Final Design • Prepare Final Construction Documents with 60%and 90%review sets for interim reviews. • Prepare a Final Engineers Opinion of Probable Costs. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 1 Not included: • Application fees,permit fees and review fees • FoleyShald can coordinate with Geotechnical Engineer who would contract directly with Owner. • Wetland Delineation,mitigation design and construction administration. Assumptions: Basic assumptions include: • We have assumed a Geotechnical Investigation will not be necessary for the design of the trail improvements. If during preliminary design Client will provide Title Commitment with Attachments for the property. • FOLEYSHALD ENGINEERING can provide additional services including bidding assistance and construction phase services if requested. • Project phasing is to be determined. Owner and Engineer further agree as follows: 1.01 Basic Agreement and Period of Service A. Engineer shall provide or furnish the Services set forth in this Agreement. If authorized by Owner, or if required because of changes in the Project,Engineer shall furnish services in addition to those set forth above ("Additional Services"). B. Engineer shall complete its Services within the following specific time period: Project schedule to be determined. Our understanding it construction will be commencing in the Spring of 2023. C. 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. 2.01 Payment Procedures A. Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to Owner on a monthly basis.Invoices are due and payable within 30 days of receipt.If Owner fails to make any payment due Engineer for Services, Additional Services, and expenses within 30 days after receipt of Engineer's invoice, then (1) the amounts due Engineer will be increased at the rate of 1.0% per month(or the maximum rate of interest permitted by law, if less)from said thirtieth day, and(2) in addition Engineer may,after giving seven days written notice to Owner, suspend Services under this Agreement until Engineer has been paid in full all amounts due for Services,Additional Services,expenses,and other related charges.Owner waives any and all claims against Engineer for any such suspension. B. Payment: As compensation for Engineer providing or furnishing Services and Additional Services, Owner shall pay Engineer as set forth in Paragraphs 2.01,2.02(Services),and 2.03 (Additional Services). If Owner disputes an invoice,either as to amount or entitlement,then Owner shall promptly advise Engineer in writing of the specific basis for doing so,may withhold only that portion so disputed, and must pay the undisputed portion. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 2 2.02 Basis of Payment—Lump Sum A. Owner shall pay Engineer for Services as follows: A Lump Sum amount of: Task 1 Boundary and Topographic Survey $26,400 Task 2 Preliminary Design $32,500 Task 3 Final Design $36.100 $95,100 B. The portion of the compensation amount billed monthly for Engineer's Services will be based upon Engineer's estimate of the percentage of the total Services actually completed during the billing period. 2.03 Additional Services: For Additional Services, Owner shall pay Engineer an amount equal to the cumulative hours charged in providing the Additional Services by each class of Engineer's employees, times standard hourly rates for each applicable billing class; plus reimbursement of expenses incurred in connection with providing the Additional Services and Engineer's consultants' charges, if any. Engineer's standard hourly rates are attached as Appendix 1. 3.01 Termination A. The obligation to continue performance 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 Agreement's terms through no fault of the terminating party.Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. 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 are delayed for more than 90 days for reasons beyond Engineer's control, or as the result of the presence at the Site of undisclosed Constituents of Concern,as set forth in Paragraph 5.01.I. c. Engineer shall have no liability to Owner on account of a termination for cause by Engineer. d. Notwithstanding the foregoing,this Agreement will not terminate as a result of a substantial failure under Paragraph 3.01.A.1.a 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 of notice; 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,by Owner effective upon Engineer's receipt of written notice from Owner. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 3 B. In the event of any termination under Paragraph 3.01,Engineer will be entitled to invoice Owner and to receive full payment for all Services and Additional Services performed or furnished in accordance with this Agreement,plus reimbursement of expenses incurred through the effective date of termination in connection with providing the Services and Additional Services,and Engineer's consultants' charges, if any. 4.01 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 4.01.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,money that is due or may become due) in this Agreement without the written consent of the other party,except to the extent that any assignment,subletting,or transfer is mandated 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,nothing in this Agreement shall be construed to create, impose,or give rise to any duty owed by Owner or Engineer to any Constructor, other third-party individual or entity, or to any surety for or employee of any of them. 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. 5.01 General Considerations A. 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 any services performed or furnished by Engineer. Subject to the foregoing standard of care,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. B. Engineer shall not at any time supervise, direct, control, or have authority over any Constructor's 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 Constructor, or the safety precautions and programs incident thereto, for security or safety at the Project site,nor for any failure of a Constructor to comply with laws and regulations applicable to such Constructor's furnishing and performing of its work. Engineer shall not be responsible for the acts or omissions of any Constructor. C. Engineer neither guarantees the performance of any Constructor nor assumes responsibility for any Constructor's failure to furnish and perform its work. D. Engineer's opinions (if any) of probable construction cost are to be made on the basis of Engineer's experience,qualifications,and general familiarity 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 EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 4 construction cost prepared by Engineer.If Owner requires greater assurance as to probable construction cost, then Owner agrees to obtain an independent cost estimate. E. Engineer shall not be responsible for any decision made regarding the construction contract requirements, or any application,interpretation,clarification,or modification of the construction contract documents other than those made by Engineer or its consultants. F. All documents prepared or furnished by Engineer are instruments of service, and Engineer retains an ownership and property interest(including the copyright and the right of reuse)in such documents, whether or not the Project is completed. Owner shall have 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 due and owing for all Services and Additional 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. G. Owner and Engineer may transmit, and shall accept, Project-related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website,in accordance with a mutually agreeable protocol. H. To the fullest extent permitted by law, Owner and Engineer (1)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 this Agreement or the Project,and(2)agree that Engineer's total liability to Owner under this Agreement shall be limited to$100,000 or the total amount of compensation received by Engineer,whichever is greater. I. The parties acknowledge that Engineer's Services do not include any services related to unknown or undisclosed Constituents of Concern. If Engineer or any other party encounters, uncovers, or reveals an unknown or undisclosed Constituent 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 such portion of the Project is no longer affected, or terminate this Agreement for cause if it is not practical to continue providing Services. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 5 J. Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute.If negotiations are unsuccessful in resolving the dispute,then the dispute shall be mediated. If mediation is unsuccessful,then the parties may exercise their rights at law. K. This Agreement is to be governed by the law of the state in which the Project is located. L. Engineer's Services and Additional Services do not include:(1)serving as a"municipal advisor"for purposes of the registration requirements of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) or the municipal advisor registration rules issued by the Securities and Exchange Commission; (2) advising Owner, or any municipal entity or other person or entity, regarding municipal financial products or the issuance of municipal securities, including advice with respect to the structure, timing,terms,or other similar matters concerning such products or issuances;(3)providing surety bonding or insurance-related advice,recommendations,counseling,or research,or enforcement of construction insurance or surety bonding requirements;or(4)providing legal advice or representation. 6.01 Total Agreement A. This Agreement(including any expressly incorporated attachments),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. Definitions B. Constructor—Any person or entity (not including the Engineer, its employees, agents, representatives, and consultants),performing or supporting construction activities relating to the Project,including but not limited to contractors, subcontractors, suppliers, Owner's work forces, utility companies, construction managers, testing firms,shippers,and truckers,and the employees,agents,and representatives of any or all of them. C. Constituent of Concern Asbestos, petroleum, radioactive material, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that 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. §§5101 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.;or(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. Attachments: Appendix 1,Engineer's Standard Hourly Rates Exhibit 1 —Site Layout EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 6 IN WITNESS WHEREOF,the parties hereto have executed this Agreement,the Effective Date of which is indicated on page 1. Owner: Engineer: By: By: I/ • ,/ Yip Print name: Print name: Joseph D.Foley,PE Title: Title: President Date Signed: Date: September 1,2022 Signed: Engineer License or Firm's Certificate No: CA4197 State of: Nebraska Address for Owner's receipt of notices: Address for Engineer's receipt of notices: 14503 Grover Street, Suite 102 Omaha,NE 68144 EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 7 This is Appendix 1, Engineer's Standard Hourly Rates, referred to in and part of the Short Form of Agreement between Owner and Engineer for Professional Services dated September 1, 2022. Engineer's Standard Hourly Rates A. Standard Hourly Rates: 1. Standard Hourly Rates are set forth in this Appendix 1 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 Paragraphs 2.01,2.02,and 2.03,and are subject to annual review and adjustment. B. Schedule of Hourly Rates: Billing Class Rate Senior Project Manager $205/hour Project Manager II $ 170/hour • Project Manager I $ 145/hour Project Engineer II $ 125/hour Senior Construction $ 145/hour Manager Project Engineer I $ 110/hour Project Designer II $ 100/hour Project Designer I $90/hour CE Intern $65/hour Technician II $87/hour Technician I $81/hour CA/RPR $90/hour Accounting/Admin $93/hour Senior Water Resources $ 158/hour Engineer Appendix 1,Standard Hourly Rates Schedule. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 1 :47,i. —, t t �r a a el o O I I , - F 5 1 w 1 �t�a ` 4a # .Y. 99 ' a. . S l W y l i-1t; '/ t _..tom ' rr Y° i j } j ?ei • H An o ? _ s at,,,,,' F, ....- F ,. Vt ,� }its :.,•. 1 o t, 1'. �'. QA J. I 4' >r Y C i _ 1 -_j , $ r,. X}j I.f.ti. r l y, i +-,. I �., - i" j : a +ild 1 a 04 J5 ) • ,T3 1 i iiiit,' E i , .• '4 , . . , 7 I = ' --... i` - 'tt ..,t ..'tts',„...1 /41:1 ., , iv Nt o Pr j fit. t- d ! i ',fi i I ` y� y# ig IDS "1`':. a r --1r, • = ; t 4, , .• 1.. : .,,-. .1 i i ita:1 ,','•itt, I t 1,as s g ktl► �(i � ' b 7 i �,w -@ p..F • F ; y' s� 3 at p F .. .-r etf wF�# Md }r+{r'y{ts • • 3 0� )t y , • • a •h..:�� ,s r y� o Gap.a In..,, t {' o _ _... . . b FMy�i'l -i I • 3 ) ..1 ti c- ". aES�r �' h ,`. W a `s� 1 x �aewz , aH - •\ i r 1 _ '^iwM`Gti : { - IILLII •:tr, R� 1 III! $ Mlle —�T y-{ i.; r , N m ❑� N n m 7 b a m D h f Title 123 —Nebraska Department of Environmental Quality For NDEQ USE ONLY Appendix A Permit Number Reviewed By Date Approved A Nebraska Department P of Environmental Quality CONSTRUCTION PERMIT APPLICATION FORM WASTEWATER WORKS A. Owner's Name and Mailing Address: For Municipalities/SIDs: Board Chairperson,Mayor,Utility Superintendent,or City Administrator For Commercial or Industrial Facilities: Owner,Designated Company Officer For Private Developments: Owner,Developer,or Association President Dan Graves, SID 362 Board Chairperson 402.614.9100 Name and Title Phone Fax 3803 N 153rd Street, Suite 201 Omaha NE 68116 Mailing Address City State Zip B. Project Engineer Information: Josh Siel FoleyShald Engineering 402.804.3993 jsiel@foleyshald.com Name of Project Engineer Firm Phone Fax Email 14503 Grover Street, Suite 102 Omaha NE 68144 Mailing Address City State Zip C. Project Information:Oak Leaf Sanitary Sewer-Phase I 001.003 Project Name Project Number Legal Description: 12 13 12 Sarpy 41.1107 -96.0140 1/4 1/4 Sect. Town. Range County Latitude Longitude D. Project Types: (Check all that apply) Y(Gravity Sewer System ❑ New WWTF ❑ Lift Station and Force Main ❑ Modification to WWTF ❑ Other Collection System ❑ Industrial Pretreatment Facility E. For Sanitary Sewer Extensions: Name of Receiving WWTF Papio VWVfF F. Engineering Statement for Sanitary Sewers: Check box if not applicable ❑ I have reviewed the available design data, flow records, and compliance history of the receiving WWTF. In my professional judgment, the WWTF has the hydraulic and treatment capacity to receive the additional wastewater from this sewer addition and remain in compliance with applicable Department regulations. (If unable to sign statement, attach explanation). 11/18/2022 Project Engineer's Signature Date SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by EJCDCR- ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE Issued and Published Jointly by ACEC AMERICAN COUNCIL OF ENGINEERING COMPANIES AscE AMERICAN SOCIETY OF CIVIL ENGINEERS -; National Society of Professional Engineers® EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. ° I Copyright©2015: National Society of Professional Engineers 1420 King Street, Alexandria,VA 22314-2794 (703)684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202)347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston,VA 20191-4400 (800)548-2723 www.asce.org The copyright for this EJCDC document is owned jointly by the three sponsoring organizations listed above. The National Society of Professional Engineers is the Copyright Administrator for the EJCDC documents;please direct all inquiries regarding EJCDC copyrights to NSPE. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of ,2022("Effective Date")between the City of Omaha ("Owner")and FoleyShald Engineering("Engineer"). Owner's Project,of which Engineer's services under this Agreement are a part, is generally identified as follows: Paxton-John Creighton Blvd Trail Improvement Project Engineer's services under this Agreement are generally identified as follows: The City of Omaha Parks,Recreation and Public Property Department has identified the Paxton—John Creighton Boulevard Trail,running from the parking lot of Fontenelle Park,to the Maple Street on the south edge of Adams Park, with the exception of an approximate 600 lf segment at the northeast corner of Adams Park, for a total project length of approximately 10,800 lf of existing trail. The project will include the survey of the proposed corridor, evaluation of the existing trail system, and the design of improvements for a 10-ft wide pcc trail. Our anticipated services include the following: Task 1: Boundary and Topographic Survey • Complete boundary and topographic survey of the project corridor, generally from the street curb and gutter to the adjacent property lines. For the segment of existing trail which currently is within the green space between Paxton and Sprague,the survey will include the green space and trail out the curbs of each street. • The survey will meet the following requirements: o Contours will be at 1 ft maximum intervals o Datum will be USGS. o A minimum three(3)benchmarks will be established. o Spot elevations at grade changes including steps,retaining walls,trees, ramps curbs, pavement edges etc. o Include sizes, locations,materials,top of frame and inverts of know below ground utilities. o Show all above ground utilities and utility identification. o Denote all site features. o Survey data will be provided in Autocad format with a written list of layout names used. o All property lines and easements within the survey corridor will be shown. Task 2: Preliminary Design • Prepare a 30%Plan Set for Review. o Field review of survey and identification of potential conflicts. o Development of the proposed alignment,profile and construction impacts concept plans. • Prepare 30%Engineers Opinion of Probable Costs • Meeting with Owner to discuss results of preliminary design. Task 3: Final Design • Prepare Final Construction Documents with 60%and 90%review sets for interim reviews. • Prepare a Final Engineers Opinion of Probable Costs. EICDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 1 Not included: • Application fees, permit fees and review fees • FoleyShald can coordinate with Geotechnical Engineer who would contract directly with Owner. • Wetland Delineation,mitigation design and construction administration. Assumptions: Basic assumptions include: • We have assumed a Geotechnical Investigation will not be necessary for the design of the trail improvements. If during preliminary design Client will provide Title Commitment with Attachments for the property. • FOLEYSHALD ENGINEERING can provide additional services including bidding assistance and construction phase services if requested. • Project phasing is to be determined. Owner and Engineer further agree as follows: 1.01 Basic Agreement and Period of Service A. Engineer shall provide or furnish the Services set forth in this Agreement. If authorized by Owner, or if required because of changes in the Project,Engineer shall furnish services in addition to those set forth above ("Additional Services"). B. Engineer shall complete its Services within the following specific time period: Project schedule to be determined. Our understanding it construction will be commencing in the Spring of 2023. C. 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. 2.01 Payment Procedures A. Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to Owner on a monthly basis.Invoices are due and payable within 30 days of receipt.If Owner fails to make any payment due Engineer for Services, Additional Services, and expenses within 30 days after receipt of Engineer's invoice, then (1) the amounts due Engineer will be increased at the rate of 1.0% per month(or the maximum rate of interest permitted by law, if less)from said thirtieth day, and(2)in addition Engineer may,after giving seven days written notice to Owner,suspend Services under this Agreement until Engineer has been paid in full all amounts due for Services,Additional Services, expenses,and other related charges.Owner waives any and all claims against Engineer for any such suspension. B. Payment: As compensation for Engineer providing or furnishing Services and Additional Services, Owner shall pay Engineer as set forth in Paragraphs 2.01, 2.02(Services),and 2.03 (Additional Services). If Owner disputes an invoice,either as to amount or entitlement,then Owner shall promptly advise Engineer in writing of the specific basis for doing so, may withhold only that portion so disputed, and must pay the undisputed portion. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 2 2.02 Basis of Payment—Lump Sum A. Owner shall pay Engineer for Services as follows: A Lump Sum amount of: Task 1 Boundary and Topographic Survey $26,400 Task 2 Preliminary Design $32,500 Task 3 Final Design $36,100 $95,100 B. The portion of the compensation amount billed monthly for Engineer's Services will be based upon Engineer's estimate of the percentage of the total Services actually completed during the billing period. 2.03 Additional Services: For Additional Services, Owner shall pay Engineer an amount equal to the cumulative hours charged in providing the Additional Services by each class of Engineer's employees, times standard hourly rates for each applicable billing class; plus reimbursement of expenses incurred in connection with providing the Additional Services and Engineer's consultants' charges, if any. Engineer's standard hourly rates are attached as Appendix 1. 3.01 Termination A. The obligation to continue performance 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 Agreement's terms through no fault of the terminating party.Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. 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 are delayed for more than 90 days for reasons beyond Engineer's control, or as the result of the presence at the Site of undisclosed Constituents of Concern,as set forth in Paragraph 5.01.I. c. Engineer shall have no liability to Owner on account of a termination for cause by Engineer. d. Notwithstanding the foregoing,this Agreement will not terminate as a result of a substantial failure under Paragraph 3.01.A.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 of notice; 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,by Owner effective upon Engineer's receipt of written notice from Owner. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 3 B. In the event of any termination under Paragraph 3.01,Engineer will be entitled to invoice Owner and to receive full payment for all Services and Additional Services performed or furnished in accordance with this Agreement,plus reimbursement of expenses incurred through the effective date of termination in connection with providing the Services and Additional Services,and Engineer's consultants' charges, if any. 4.01 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 4.01.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,money that is due or may become due)in this Agreement without the written consent of the other party,except to the extent that any assignment,subletting,or transfer is mandated 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,nothing in this Agreement shall be construed to create,impose,or give rise to any duty owed by Owner or Engineer to any Constructor, other third-party individual or entity, or to any surety for or employee of any of them. 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. 5.01 General Considerations A. 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 any services performed or furnished by Engineer. Subject to the foregoing standard of care,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. B. Engineer shall not at any time supervise, direct, control, or have authority over any Constructor's 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 Constructor, or the safety precautions and programs incident thereto, for security or safety at the Project site,nor for any failure of a Constructor to comply with laws and regulations applicable to such Constructor's furnishing and performing of its work. Engineer shall not be responsible for the acts or omissions of any Constructor. C. Engineer neither guarantees the performance of any Constructor nor assumes responsibility for any Constructor's failure to furnish and perform its work. D. Engineer's opinions (if any) of probable construction cost are to be made on the basis of Engineer's experience,qualifications,and general familiarity 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 EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 4 construction cost prepared by Engineer.If Owner requires greater assurance as to probable construction cost, then Owner agrees to obtain an independent cost estimate. E. Engineer shall not be responsible for any decision made regarding the construction contract requirements, or any application,interpretation,clarification,or modification of the construction contract documents other than those made by Engineer or its consultants. F. All documents prepared or furnished by Engineer are instruments of service, and Engineer retains an ownership and property interest(including the copyright and the right of reuse)in such documents,whether or not the Project is completed. Owner shall have 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 due and owing for all Services and Additional 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. G. Owner and Engineer may transmit, and shall accept, Project-related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website,in accordance with a mutually agreeable protocol. H. To the fullest extent permitted by law, Owner and Engineer (1)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 this Agreement or the Project, and(2)agree that Engineer's total liability to Owner under this Agreement shall be limited to$100,000 or the total amount of compensation received by Engineer,whichever is greater. I. The parties acknowledge that Engineer's Services do not include any services related to unknown or undisclosed Constituents of Concern. If Engineer or any other party encounters, uncovers, or reveals an unknown or undisclosed Constituent 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 such portion of the Project is no longer affected, or terminate this Agreement for cause if it is not practical to continue providing Services. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 5 J. Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute.If negotiations are unsuccessful in resolving the dispute,then the dispute shall be mediated. If mediation is unsuccessful,then the parties may exercise their rights at law. K. This Agreement is to be governed by the law of the state in which the Project is located. L. Engineer's Services and Additional Services do not include:(1)serving as a"municipal advisor"for purposes of the registration requirements of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) or the municipal advisor registration rules issued by the Securities and Exchange Commission; (2) advising Owner, or any municipal entity or other person or entity, regarding municipal financial products or the issuance of municipal securities, including advice with respect to the structure, timing,terms,or other similar matters concerning such products or issuances;(3)providing surety bonding or insurance-related advice,recommendations,counseling,or research,or enforcement of construction insurance or surety bonding requirements;or(4)providing legal advice or representation. 6.01 Total Agreement A. This Agreement(including any expressly incorporated attachments),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. Definitions B. Constructor—Any person or entity (not including the Engineer, its employees, agents, representatives, and consultants),performing or supporting construction activities relating to the Project,including but not limited to contractors, subcontractors, suppliers, Owner's work forces, utility companies, construction managers, testing firms,shippers,and truckers,and the employees,agents,and representatives of any or all of them. C. Constituent of Concern Asbestos, petroleum, radioactive material, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that 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. §§5101 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.;or(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. Attachments: Appendix 1,Engineer's Standard Hourly Rates Exhibit 1 —Site Layout EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 6 IN WITNESS WHEREOF,the parties hereto have executed this Agreement,the Effective Date of which is indicated on page 1. Owner: Engineer: By: By: dy' / // !Jlp dip 4 Print name: Print name: Joseph D. Foley,PE Title: Title: President Date Signed: Date: September 1,2022 Signed: Engineer License or Firm's Certificate No: CA4197 State of: Nebraska Address for Owner's receipt of notices: Address for Engineer's receipt of notices: 14503 Grover Street, Suite 102 Omaha,NE 68144 EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 7 This is Appendix 1, Engineer's Standard Hourly Rates, referred to in and part of the Short Form of Agreement between Owner and Engineer for Professional Services dated September 1, 2022. Engineer's Standard Hourly Rates A. Standard Hourly Rates: 1. Standard Hourly Rates are set forth in this Appendix 1 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 Paragraphs 2.01,2.02,and 2.03,and are subject to annual review and adjustment. B. Schedule of Hourly Rates: Billing Class Rate Senior Project Manager $205/hour Project Manager II $ 170/hour Project Manager I $ 145/hour Project Engineer II $ 125/hour Senior Construction $ 145/hour Manager Project Engineer I $ 110/hour Project Designer II $ 100/hour Project Designer I $90/hour CE Intern $65/hour Technician II $87/hour Technician I $81/hour CA/RPR $90/hour Accounting/Admin $93/hour Senior Water Resources $ 158/hour Engineer Appendix 1,Standard Hourly Rates Schedule. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 1 - - r..r. „. ,,,D, tom•. I .. v, r ( . t: Z. yr �Er $1 f_ '^ • h.- wat- . • 1. • Prnf2 alfaualu'• i... •r r; P kd1 Y•. "' 74. 1. 1 -,!' a .r.^I j 14- i O 11 ._� o ti s nQ�e tip :FL .1 w- f. t , �., r .� + a . o: - a a o .^ rr I I j . 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AMERICAN SOCIETY Of CIVIL ENGINEERS 0 National Society of Professional Engineers® EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Copyright©2015: National Society of Professional Engineers 1420 King Street,Alexandria, VA 22314-2794 (703)684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202)347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive,Reston,VA 20191-4400 (800) 548-2723 www.asce.org The copyright for this EJCDC document is owned jointly by the three sponsoring organizations listed above. The National Society of Professional Engineers is the Copyright Administrator for the EJCDC documents; please direct all inquiries regarding EJCDC copyrights to NSPE. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of ,2022("Effective Date")between the City of Omaha ("Owner")and FoleyShald Engineering("Engineer"). Owner's Project,of which Engineer's services under this Agreement are a part,is generally identified as follows: Paxton-John Creighton Blvd Trail Improvement Project Engineer's services under this Agreement are generally identified as follows: The City of Omaha Parks,Recreation and Public Property Department has identified the Paxton—John Creighton Boulevard Trail,running from the parking lot of Fontenelle Park,to the Maple Street on the south edge of Adams Park, with the exception of an approximate 600 if segment at the northeast corner of Adams Park, for a total project length of approximately 10,800 if of existing trail. The project will include the survey of the proposed corridor, evaluation of the existing trail system, and the design of improvements for a 10-ft wide pcc trail. Our anticipated services include the following: Task 1: Boundary and Topographic Survey • Complete boundary and topographic survey of the project corridor,generally from the street curb and gutter to the adjacent property lines. For the segment of existing trail which currently is within the green space between Paxton and Sprague,the survey will include the green space and trail out the curbs of each street. • The survey will meet the following requirements: o Contours will be at 1 ft maximum intervals o Datum will be USGS. o A minimum three(3)benchmarks will be established. o Spot elevations at grade changes including steps,retaining walls,trees, ramps curbs, pavement edges etc. o Include sizes, locations,materials,top of frame and inverts of know below ground utilities. o Show all above ground utilities and utility identification. o Denote all site features. o Survey data will be provided in Autocad format with a written list of layout names used. o All property lines and easements within the survey corridor will be shown. Task 2: Preliminary Design • Prepare a 30%Plan Set for Review. o Field review of survey and identification of potential conflicts. o Development of the proposed alignment, profile and construction impacts concept plans. • Prepare 30%Engineers Opinion of Probable Costs • Meeting with Owner to discuss results of preliminary design. Task 3: Final Design • Prepare Final Construction Documents with 60%and 90%review sets for interim reviews. • Prepare a Final Engineers Opinion of Probable Costs. EJCDC•E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 1 Not included: • Application fees,permit fees and review fees • FoleyShald can coordinate with Geotechnical Engineer who would contract directly with Owner. • Wetland Delineation,mitigation design and construction administration. Assumptions: Basic assumptions include: • We have assumed a Geotechnical Investigation will not be necessary for the design of the trail improvements. If during preliminary design Client will provide Title Commitment with Attachments for the property. • FOLEYSHALD ENGINEERING can provide additional services including bidding assistance and construction phase services if requested. • Project phasing is to be determined. Owner and Engineer further agree as follows: 1.01 Basic Agreement and Period of Service A. Engineer shall provide or furnish the Services set forth in this Agreement. If authorized by Owner, or if required because of changes in the Project,Engineer shall furnish services in addition to those set forth above ("Additional Services"). B. Engineer shall complete its Services within the following specific time period: Project schedule to be determined. Our understanding it construction will be commencing in the Spring of 2023. C. 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. 2.01 Payment Procedures A. Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to Owner on a monthly basis.Invoices are due and payable within 30 days of receipt.If Owner fails to make any payment due Engineer for Services, Additional Services, and expenses within 30 days after receipt of Engineer's invoice, then (1) the amounts due Engineer will be increased at the rate of 1.0% per month(or the maximum rate of interest permitted by law, if less)from said thirtieth day, and(2) in addition Engineer may, after giving seven days written notice to Owner,suspend Services under this Agreement until Engineer has been paid in full all amounts due for Services,Additional Services, expenses,and other related charges.Owner waives any and all claims against Engineer for any such suspension. B. Payment: As compensation for Engineer providing or furnishing Services and Additional Services, Owner shall pay Engineer as set forth in Paragraphs 2.01,2.02(Services), and 2.03 (Additional Services). If Owner disputes an invoice,either as to amount or entitlement,then Owner shall promptly advise Engineer in writing of the specific basis for doing so, may withhold only that portion so disputed, and must pay the undisputed portion. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 2 2.02 Basis of Payment—Lump Sum A. Owner shall pay Engineer for Services as follows: A Lump Sum amount of: Task 1 Boundary and Topographic Survey $26,400 Task 2 Preliminary Design $32,500 Task 3 Final Design $36,100 $95,100 B. The portion of the compensation amount billed monthly for Engineer's Services will be based upon Engineer's estimate of the percentage of the total Services actually completed during the billing period. 2.03 Additional Services: For Additional Services, Owner shall pay Engineer an amount equal to the cumulative hours charged in providing the Additional Services by each class of Engineer's employees, times standard hourly rates for each applicable billing class; plus reimbursement of expenses incurred in connection with providing the Additional Services and Engineer's consultants' charges, if any. Engineer's standard hourly rates are attached as Appendix 1. 3.01 Termination A. The obligation to continue performance 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 Agreement's terms through no fault of the terminating party.Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. 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 are delayed for more than 90 days for reasons beyond Engineer's control, or as the result of the presence at the Site of undisclosed Constituents of Concern,as set forth in Paragraph 5.01.I. c. Engineer shall have no liability to Owner on account of a termination for cause by Engineer. d. Notwithstanding the foregoing,this Agreement will not terminate as a result of a substantial failure under Paragraph 3.01.A.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 of notice; 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,by Owner effective upon Engineer's receipt of written notice from Owner. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 3 B. In the event of any termination under Paragraph 3.01,Engineer will be entitled to invoice Owner and to receive full payment for all Services and Additional Services performed or furnished in accordance with this Agreement,plus reimbursement of expenses incurred through the effective date of termination in connection with providing the Services and Additional Services, and Engineer's consultants' charges, if any. 4.01 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 4.01.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,money that is due or may become due)in this Agreement without the written consent of the other party,except to the extent that any assignment,subletting,or transfer is mandated 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,nothing in this Agreement shall be construed to create, impose,or give rise to any duty owed by Owner or Engineer to any Constructor, other third-party individual or entity, or to any surety for or employee of any of them. 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. 5.01 General Considerations A. 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 any services performed or furnished by Engineer. Subject to the foregoing standard of care,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. B. Engineer shall not at any time supervise, direct, control, or have authority over any Constructor's 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 Constructor, or the safety precautions and programs incident thereto, for security or safety at the Project site,nor for any failure of a Constructor to comply with laws and regulations applicable to such Constructor's furnishing and performing of its work. Engineer shall not be responsible for the acts or omissions of any Constructor. C. Engineer neither guarantees the performance of any Constructor nor assumes responsibility for any Constructor's failure to furnish and perform its work. D. Engineer's opinions (if any) of probable construction cost are to be made on the basis of Engineer's experience,qualifications,and general familiarity 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 EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 4 construction cost prepared by Engineer.If Owner requires greater assurance as to probable construction cost, then Owner agrees to obtain an independent cost estimate. E. Engineer shall not be responsible for any decision made regarding the construction contract requirements,or any application,interpretation,clarification,or modification of the construction contract documents other than those made by Engineer or its consultants. F. All documents prepared or furnished by Engineer are instruments of service, and Engineer retains an ownership and property interest(including the copyright and the right of reuse)in such documents,whether or not the Project is completed. Owner shall have 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 due and owing for all Services and Additional 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. G. Owner and Engineer may transmit, and shall accept, Project-related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website,in accordance with a mutually agreeable protocol. H. To the fullest extent permitted by law, Owner and Engineer (1)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 this Agreement or the Project, and(2)agree that Engineer's total liability to Owner under this Agreement shall be limited to$100,000 or the total amount of compensation received by Engineer,whichever is greater. I. The parties acknowledge that Engineer's Services do not include any services related to unknown or undisclosed Constituents of Concern. If Engineer or any other party encounters, uncovers, or reveals an unknown or undisclosed Constituent 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 such portion of the Project is no longer affected, or terminate this Agreement for cause if it is not practical to continue providing Services. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 5 J. Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute.If negotiations are unsuccessful in resolving the dispute,then the dispute shall be mediated. If mediation is unsuccessful,then the parties may exercise their rights at law. K. This Agreement is to be governed by the law of the state in which the Project is located. L. Engineer's Services and Additional Services do not include:(1)serving as a"municipal advisor"for purposes of the registration requirements of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) or the municipal advisor registration rules issued by the Securities and Exchange Commission; (2) advising Owner, or any municipal entity or other person or entity, regarding municipal financial products or the issuance of municipal securities, including advice with respect to the structure, timing,terms,or other similar matters concerning such products or issuances;(3)providing surety bonding or insurance-related advice,recommendations,counseling,or research,or enforcement of construction insurance or surety bonding requirements; or(4)providing legal advice or representation. 6.01 Total Agreement A. This Agreement(including any expressly incorporated attachments),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. Definitions B. Constructor—Any person or entity (not including the Engineer, its employees, agents, representatives, and consultants),performing or supporting construction activities relating to the Project,including but not limited to contractors, subcontractors, suppliers, Owner's work forces, utility companies, construction managers, testing firms, shippers,and truckers, and the employees,agents,and representatives of any or all of them. C. Constituent of Concern Asbestos, petroleum, radioactive material, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that 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. §§5101 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.;or(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. Attachments: Appendix 1,Engineer's Standard Hourly Rates Exhibit 1—Site Layout EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 6 IN WITNESS WHEREOF,the parties hereto have executed this Agreement,the Effective Date of which is indicated on page 1. Owner: Engineer: dir` By: By: I / f/ G� Print name: Print name: Joseph D.Foley,PE Title: Title: President Date Signed: Date: September 1,2022 Signed: Engineer License or Firm's Certificate No: CA4197 State of: Nebraska Address for Owner's receipt of notices: Address for Engineer's receipt of notices: 14503 Grover Street, Suite 102 Omaha,NE 68144 EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 7 This is Appendix 1, Engineer's Standard Hourly Rates, referred to in and part of the Short Form of Agreement between Owner and Engineer for Professional Services dated September 1, 2022. Engineer's Standard Hourly Rates A. Standard Hourly Rates: 1. Standard Hourly Rates are set forth in this Appendix 1 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 Paragraphs 2.01,2.02,and 2.03,and are subject to annual review and adjustment. B. Schedule of Hourly Rates: Billing Class Rate Senior Project Manager $205/hour Project Manager II $ 170/hour Project Manager I $ 145/hour Project Engineer II $ 125/hour Senior Construction $ 145/hour Manager Project Engineer I $ 110/hour Project Designer II $ 100/hour Project Designer I $90/hour CE Intern $65/hour Technician II $87/hour Technician I $81/hour CA/RPR $90/hour Accounting/Admin $93/hour Senior Water Resources $ 158/hour Engineer Appendix 1,Standard Hourly Rates Schedule. EJCDC®E-520,Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright©2015 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers.All rights reserved. Page 1 ,' j � o eMg 2 �. . . . , !C a �F ewy • o l : > Ca v, r • •ir:, . P`nin 'ailaualuoj t7'.._ X j.'i, ",n t, 1 , • e.r t I 1 i e. , i } I. `-�.l I H. 0 it- . 7t -- - _ m ``. �. ; (� 88 3 4 r..r " j F >orvn 0 • • .,... ...,.. i!! f r + _ `�1 II c N f -4 -ii• rl'.. fil • omy4 " i. }. dp �ir 1 !" � rfl 7'• -;\ ' ' •-ri''''Pft.. ; • t• '4 i idia,, l',". .) € f...... 11**' ' F � 1: tin- 3 �• 3 • 2 0 22 0 0 0 -I ! is u 1Pr/A-a4 i,a g 2 k I) - •••'- gr.,'II liiiiiii.,1/4- so 4 - / 411 i ; ire L1LLi 'ki•- ". .t °r 7" y GVS..r 1-4 j - l .r:,- {- .r4 1- , , � .. , o� T 1 r ` y �.. I at G: 3 j. y � K F o ra 1111P1141,- ,) ' i • J. y - ^1` • • _ a o u 1 El o la G S n z a a -u 'f."-..v7-1 ; ( • Request for Taxpayer Form Give Form to the (Rev.October2018) Identification Number and Certification requester.Do not Department of the Treasury send to the IRS. Internal Revenue Service ►Go to www.irs.gov/FormW9 for instructions and the latest information. Name(as shown on your income tax return).Name is required on this line;do not leave this line blank. FoleyShald Engineering, LLC 2 Business name/disregarded entity name,if different from above 3 Check appropriate box for federal tax classification of the person whose name is entered on line 1.Check only one of the 4 Exemptions(codes apply only to as following seven boxes. certain entities,not individuals;see a ❑ C Corporationinstructions on page 3): p ❑ Individual/sole proprietor or ❑S Corporation ❑ Partnership ❑Trust/estate a c single-member LLC Exempt payee code(if any) O.4 ❑✓ Limited liability company.Enter the tax classification(C=C corporation,S=S corporation,P=Partnership)► S `o 2 Note:Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check Exemption from FATCA reporting t LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is code(if any) another LLC that is not disregarded from the owner for U.S.federal tax purposes.Otherwise,a single-member LLC that is disregarded from the owner should check the appropriate box for the tax classification of its owner. ❑ Other(see instructions)► O. (Applies to accounts maintained outside the U.S.) co 5 Address(number,street,and apt.or suite no.)See instructions. Requester's name and address(optional) i 14503 Grover Street,Suite 102 6 City,state,and ZIP code Omaha,NE 68144 7 List account number(s)here(optional) Part I Taxpayer Identification Number(TIN) Enter your TIN in the appropriate box.The TIN provided must match the name given on line 1 to avoid (Social security number backup withholding.For individuals,this is generally your social security number(SSN).However,for a resident alien,sole proprietor,or disregarded entity,see the instructions for Part I,later.For other - - entities, it is your employer identification number(EIN).If you do not have a number,see How to get a TIN, later. or Note:If the account is in more than one name,see the instructions for line 1.Also see What Name and Employer identification number Number To Give the Requester for guidelines on whose number to enter. 8 4 - 2 0 2 0 8 6 8 Part II Certification Under penalties of perjury,I certify that: 1.The number shown on this form is my correct taxpayer identification number(or I am waiting for a number to be issued to me);and 2.I am not subject to backup withholding because:(a)I am exempt from backup withholding,or(b)I have not been notified by the Internal Revenue Service(IRS)that I am subject to backup withholding as a result of a failure to report all interest or dividends,or(c)the IRS has notified me that I am no longer subject to backup withholding;and 3.I am a U.S.citizen or other U.S.person(defined below);and 4.The FATCA code(s)entered on this form(if any)indicating that I am exempt from FATCA reporting is correct. Certification instructions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return.For real estate transactions,item 2 does not apply.For mortgage interest paid, acquisition or abandonment of secured property,cancellation of debt,contributions to an individual retirement arrangement(IRA),and generally,payments other than interest and dividends,you are not required to sign the certification,but you must provide your correct TIN.See the instructions for Part II,later. Sign Signature of omit4 IL cepHere U.S.person► L%� Date►July 12, 2021 General Instructions •Form 1099-DIV(dividends,including those from stocks or mutual funds) Section references are to the Internal Revenue Code unless otherwise •Form 1099-MISC(various types of income,prizes,awards,or gross noted. proceeds) Future developments.For the latest information about developments •Form 1099-B(stock or mutual fund sales and certain other related to Form W-9 and its instructions,such as legislation enacted transactions by brokers) after they were published,go to www.irs.gov/FormW9. •Form 1099-S(proceeds from real estate transactions) Purpose of Form •Form 1099-K(merchant card and third party network transactions) An individual or entity(Form W-9 requester)who is required to file an •Form 1098(home mortgage interest),1098-E(student loan interest), information return with the IRS must obtain your correct taxpayer 1098-T(tuition) identification number(TIN)which may be your social security number •Form 1099-C(canceled debt) (SSN),individual taxpayer identification number(ITIN),adoption •Form 1099-A(acquisition or abandonment of secured property) taxpayer identification number(ATIN),or employer identification number (EIN),to report on an information return the amount paid to you,or other Use Form W-9 only if you are a U.S.person(including a resident amount reportable on an information return.Examples of information alien),to provide your correct TIN. returns include,but are not limited to,the following. If you do not return Form W-9 to the requester with a TIN,you might •Form 1099-INT(interest earned or paid) be subject to backup withholding.See What is backup withholding, later. Cat.No.10231X Form W-9(Rev.10-2018)