RES 2016-0849 - Agmt with EAD Control Systems for OPW 52969, plantwide RTU upgrade project G {.HA fv - t �1 C-
,0 . `. " ,ss� \ - Public Works Department
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June 14, 0�6
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City of Omaha ': " r Robert G. Stubbe,P.E.
Public Works Director
Jean Stothert,Mayor
Honorable President
and Members of the City Council,
Transmitted herewith is a Resolution approving a Professional Services Agreement with EAD
Control Systems, Inc. to perform engineering services for OPW 52969, being Plantwide RTU
Upgrade project.
EAD Control Systems, Inc. has agreed to perform the services detailed in Exhibit "B" of the
attached Professional Services Agreement for a fee not to exceed $56,990.00, which is to be paid
from the Sewer Revenue Improvements Fund 21124, Sewer Separation Organization 116912,
Sewer Revenue Bonds will be used to finance this project.
EAD Control Systems, Inc. has filed the required Contract Compliance Report, Form CC-1, in
the Human Rights and Relations Department.
The Public Works Department requests your consideration and approval of the attached
Resolution and Professional Services Agreement.
Respectfully submitted, Approved:
f ,r C
Ro ert G. Stubbe, P.E. D/z7/
pe cer K. Danner, Jr. Date
Public Works Director Human Rights and Relatio Director
Approved as to Funding: Referred to City Council for Consideration:
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Sir it, :-a-- 'kit: (Di z n L
S eph B. Curtiss ate Mayor's Office Date
Finance Director -'s7
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is hereby made and entered into this Pe-day016 o ay, by and between the
City of Omaha, a municipal corporation located in Douglas County,Ne raska (hereinafter referred to as
the "City"), and EAD Control Systems, Inc. (hereinafter referred to as the "Provider"), on the terms,
conditions and provisions as set forth herein below. All references to"Contractor"shall mean 'Provider".
PROJECT NAME AND DESCRIPTION
OPW 52969 Plantwide RTU Upgrade
Develop a construction bid package for the replacement of (11) PLC 5 RTU's with Control Logix
RTU's including the installation of a new Ethernet network. The project will also include RFI
responses to bidders, review of submitted bids, bid comparisons and recommendations, RFI
responses during construction, and a final inspection of the installed systems.
II. DUTIES OF PROVIDER
A. Provider agrees to perform professional services, as set out and more fully described in the
Proposal attached hereto, for the City, relative to the above-referenced project which is
illustrated in Exhibit "B" attached hereto. Such services shall be completed within a 120
(bidding phase and construction phase is not included) day period after receipt of a purchase
order from the City.
B. Provider designates Adam Melby whose business address and phone number i s
3 6 3 5 S 149th Street,Omaha NE 68144, (402) 884-8650 as its project manager and contact
person for this project.
C. Provider agrees to maintain records and accounts, including personnel, financial and property
records, sufficient to identify and account for all costs pertaining to the project and certain other
records as may be required by the City to assure a proper accounting for all project funds.
These records shall be made available to the City for audit purposes and shall be retained for a
period of five (5)years after the expiration of this Agreement.
D. Provider agrees to prepare a schedule of compensation, detailing hourly rates for all
compensated providers, employees, and subcontractors.
E. Provider agrees to complete, within 120 (bidding phase and construction phases are not
included) calendar days of receipt of a purchase order from the City, the necessary services.
The City recognizes that completion within this deadline is contingent upon timely response
from utilities and City input.
F. Provider agrees to have a current Contract Compliance Form (CC-1) on file with the City's
Human Rights and Relations Department prior to signing the agreement.
III. DUTIES OF CITY
A. City designates Jake Hansen whose business address and phone number are 15705 Harlan Lewis
Road, Omaha NE 68123-5728, (402) 444-3922 ext 2202 as its contact person for this project, who
shall provide a notice to proceed and such other written authorizations as are necessary to
commence for proceed with the project and various aspects of it.
IV. COMPENSATION AND PAYMENT
A. The cost of services as specified in the Scope of Service,shall be performed on an hourly basis,
but in no event shall exceed$56,990.00. Detailed breakdown of costs shall be shown in Exhibit
''C,,
B. Reimbursable expenses shall be billed to the City by the Provider.
C. INCREASE OF FEES
The parties hereto acknowledge that, as of the date of the execution of the Agreement, Section
10-142 of the Omaha Municipal Code provides as follows: Any amendment to contracts or
purchases which taken alone increase the original fee as awarded (a) by ten percent, if the
original fee is one hundred fifty thousand dollars ($150,000) or more, or (b) by seventy-five
thousand dollars ($75,000) or more, shall be approved by the City Council in advance of the
acceptance of any purchase in excess of such limits. However, neither contract nor purchase
amendments will be split to avoid advance approval of the City Council.
The originally approved scope and primary features of a contract or purchase will not be
significantly revised as a result of amendments not approved in advance by the city council.
The provisions of this section will be quoted in all future city contracts. Nothing in this section
is intended to alter the authority of the mayor under section 5.16 of the Charter to approve
immediate purchases.
V. OWNERSHIP OF INSTRUMENTS OF SERVICE
The City acknowledges the Provider's documents,including electronic files, as instruments of
professional service.Nevertheless,upon completion of the services and payment in full of all
monies due to the Provider,the final documents prepared under this Agreement shall become the
property of the City. The City shall not reuse at another site or make any modification to the
documents without 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 subconsultants(collectively,Provider)against any damages, liabilities or costs,
including reasonable attorneys'fees and defense costs,arising from or in any way connected with
the unauthorized reuse or modification of the documents by the City, regardless of whether such
reuse or modification is for use at the Project site or another site.
VI. ADDITIONAL SERVICES
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
Provider shall carry professional liability insurance in the minimum amount of one half million
dollars and shall carry workers' compensation insurance in accordance with the statutory
requirements of the State of Nebraska.
V II I. INDEMNIFICATION
The Provider agrees,to the fullest extent permitted by law,to indemnify, defend and hold harmless
the City, its officers, directors and employees (collectively, City) against all damages, liabilities or
costs, including reasonable 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 subconsultants
or anyone for whom the Provider is legally liable. The City agrees,to the fullest extent permitted
by law,to indemnify and hold harmless the Provider, its officers, directors, employees and
subconsultants(collectively,Provider) against all damages, liabilities or costs,including reasonable
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
This Agreement may be terminated by the City upon written notice to the provider of such termination
and specifying the effective date at least seven(7)days prior to the effective date of such termination.
In the event of termination, the provider shall be entitled to just and equitable payment for services
rendered to the date of termination, and all finished or unfinished documents, data surveys, studies,
drawings,maps,models, reports or photographs shall become, at the City's option, its property.
X. GENERAL CONDITIONS
A. Non-discrimination. Provider shall not,in the performance of this Agreement,discriminate or
permit discrimination in violation of federal or state laws or local ordinances because of race,
color,sex,age,or disability as recognized under 42 USCS 12101 et seq.and Omaha Municipal
Code section 13-89, race, color, creed, religion, sex, marital status, sexual orientation, gender
identity,national origin, age, or disability.
B. Captions. Captions used in this Agreement are for convenience and are not used in the
construction of this Agreement.
C. Applicable Laws. Parties to this Agreement shall conform with all existing and applicable city
ordinances, resolutions, state laws, federal laws, and existing and applicable rules and
regulations. Nebraska law will govern the terms and the performance under this Agreement.
D. Interest of the City. Pursuant to Section 8.05 of the Home Rule Charter, no elected official or
any officer or employee of the City shall have a financial interest,direct or indirect,in any City
Agreement. Any violation of this section with the knowledge of the person or corporation
contracting with the City shall render the Agreement voidable by the Mayor or Council.
E. Interest of the Provider. The Provider covenants that he presently has no interest and shall not
acquire any interest, direct or indirect, which would conflict with the performance of services
required to be performed under this Agreement; he further covenants that in the performance
of this Agreement, no person having any such interest shall be employed.
F. Merger. This Agreement shall not be merged into any other oral or written agreement, lease
or deed of any type. This is the complete and full agreement of the parties.
G. Modification. This Agreement contains the entire Agreement of the parties. No
representations were made or relied upon by either party other than those that are expressly set
forth herein. No agent, employee or other representative of either party is empowered to alter
any of the terms hereof unless done in writing and signed by an authorized officer of the
respective parties.
H. Assignment. The Provider may not assign its rights under this Agreement without the express
prior written consent of the City.
Strict Compliance. All provisions of this Agreement and each and every document that shall
be attached shall be strictly complied with as written, and no substitution or change shall be
made except upon written direction from authorized representative.
J. LB 403 Contract Provisions. -NEW EMPLOYEE WORK ELIGIBILITY STATUS-The
Contractor is required and hereby agrees to use a federal immigration verification system to
determine the work eligibility status of new employees physically performing 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 Reform
and Immigrant Responsibility Act of 1996, 8 U.S.C. 1324a,known as the E-Verify Program,
or an equivalent federal program designated by the United States Department of Homeland
Security or other federal agency authorized to verify the work eligibility status of a newly
hired employee.
If the Contractor is an individual or sole proprietorship,the following applies: 1.The
Contractor must complete the United States Citizenship Attestation Form, available on the
Department of Administrative Services website at www.das.state.ne.us 2. If the Contractor
indicates on such attestation form that he or she is a qualified alien,the Contractor agrees to
provide the US Citizenship and Immigration Services documentation required to verify the
Contractor's lawful presence in the United States using the Systematic Alien Verification for
Entitlements(SAVE)Program. 3. The Contractor understands and agrees that lawful
presence in the United States is required and the Contractor may be disqualified or the
contract terminated if such lawful presence cannot be verified as required by Neb. Rev. Stat.
§4-108.
K. Debarment or suspension by any federal agency. (This section applies if any part of this
Agreement is funded by a federal agency.) Office of Management and Budget (OMB)
guidelines require that any individual or entity that has been placed on the Excluded Parties
List System ("EPLS" - available for review through www.sam.gov) may not be a participant
in a federal agency transaction that is a covered transaction or act as a principal of a person
participating in one of those covered transactions. These guidelines apply to covered
transactions under a grant from any federal agency for which a recipient expects to receive
reimbursement for expenditures incurred or an advance on future expenditures.
The Contractor providing goods and/or services to the City of Omaha certifies,by acceptance
and execution of this Agreement, that neither it nor its principals are presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any federal department or agency. Contractor further agrees,
by accepting and executing this Agreement,that it will include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts, and subcontracts. Where the
Contractor or any lower tier participant is unable to certify this statement, it shall attach an
explanation to this Agreement.
L. Contract Compliance Ordinance No.35344,Section 10-192
Equal Employment Opportunity Clause
During the performance of this contract,the Contractor agrees as follows:
1) The Contractor shall not discriminate against any employee or applicant for employment
because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity,
national origin,age,or disability. The Contractor shall ensure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, sexual orientation, gender identity, national origin, age, or
disability. As used herein, the word "treated" shall mean and include, without limitation, the
following: recruited, whether by advertising or by other means; compensated; selected for
training, including apprenticeship; promoted; upgraded; demoted; downgraded; transferred;
laid off; and terminated. The Contractor agrees to and shall post in conspicuous places,
available to employees and applicants for employment, notices to be provided by the
contracting officers setting forth the provisions of this nondiscrimination clause.
2) The Contractor shall,in all solicitations or advertisements for employees placed by or on behalf
of the Contractor, state that all qualified applicants will receive consideration for employment
without regard to race, color, creed, religion, sex, marital status, sexual orientation, gender
identity,national origin,age,or disability.
3) The Contractor shall send to each labor union or representative of workers with which he has a
collective bargaining agreement or other contract or understanding a notice advising the labor
union or worker's representative of the Contractor's commitments under the Equal Employment
Opportunity Clause of the City and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
4) The Contractor shall furnish to the human rights and relations director all Federal forms
containing the information and reports required by the Federal government for Federal
contracts under Federal rules and regulations, and including the information required by
Sections 10-192 to 10-194, inclusive, and shall permit reasonable access to his records.
Records accessible to the human rights and relations director shall be those which are related
to Paragraphs (1) through (7) of this subsection and only after reasonable notice is given the
Contractor. The purpose for this provision is to provide for investigation to ascertain
compliance with the program provided for herein.
5) The Contractor shall take such actions with respect to any subcontractor as the City may direct
as a means of enforcing the provisions of Paragraphs(1)through(7)herein,including penalties
and sanctions for noncompliance;however,in the event the Contractor becomes involved in or
is threatened with litigation as the result of such directions by the City,the City will enter into
such litigation as necessary to protect the interests of the City and to effectuate the provisions
of this division; and in the case of contracts receiving Federal assistance,the Contractor or the
City may request the United States to enter into such litigation to protect the interests of the
United States.
6) The Contractor shall file and shall cause his subcontractors, if any, to file compliance reports
with the Contractor in the same form and to the same extent as required by the Federal
government for Federal contracts under Federal rules and regulations. Such compliance reports
shall be filed with the human rights and relations director. Compliance reports filed at such
times as directed shall contain information as to the employment practices,policies,programs
and statistics of the Contractor and his subcontractors.
7) The Contractor shall include the provisions of Paragraphs(1)through(7)of this Section,"Equal
Employment Opportunity Clause",and Section 10-193 in every subcontract or purchase order
so that such provisions will be binding upon each subcontractor or vendor.
EXECUTED this 11 day of May , 2016 .
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APPROVED AS TO FORM:
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Deputy City Attorney
Revised: 12/2012
EXHIBIT "B"
SCOPE OF SERVICES
May 6, 2016
Revision 1
Jacob Hansen
Papillion Creek Wastewater Treatment Plant
15705 Harlan Lewis Road
Omaha, NE 68123
RE: EAD Project#: M001249.001
OPW 52969 Plantwide RTU Upgrade
Dear Jacob,
Thank you for giving EAD the opportunity to provide professional automation services to support
the development of a construction specification bid package for the RTU Upgrade project. Based
upon the scope of work we have discussed,we understand the scope and deliverable of this project
to be as described in this scope of work.
Scope of Professional Services:
1. Review front-end specifications provided by the City of Omaha and stamp.
2. Attend a project kickoff meeting with the City of Omaha staff to review the project scope,
schedule and detail design.
3. Develop a project manual that will include,but is not limited to:
a. Project Objectives
b. Control System Specification
c. Demo Scope of Work
d. Installation Scope of Work
e. Checkout and Commissioning Scope of Work
f. Approved Materials Specification
g. Programming Specification
4. Develop drawings and cross-reference lists required for the project manual that will
include,but are not limited to:
a. Network Architecture
b. 1/0 cross-reference with wiring termination designations
5. Attend two (2) project review meetings with the Papillion Creek WWTP team.
6. Attend a Pre-Bid conference prior to bids being submitted.
7. Respond to inquiries from prospective bidders and prepare and issue any addenda
required.
8. Review submitted bids to ensure compliance with the construction bid specification.
9. Compare submitted bids and make recommendations to Papillion Creek Wastewater
Treatment Plant.
10. Attend a Pre-Construction conference prior to construction beginning.
11. Provide services during construction for:
a. Review submittals, operation and maintenance manuals,and related data supplied
by the Contactor
b. Provide interpretation of the plans and specifications when necessary
c. Provide timely and coordinated communication to and from the Contractor for
requests for information and to receive and supply feedback
12. Conduct a final inspection with the Contractor and Owner to ensure all components of the
project have been completed and are acceptable to all parties. Provide a Punch List for the
Contractor to complete prior to entire and final payment being released.
Clarifications and Exclusions:
1. All design work will be performed in accordance with applicable codes and Papillion Creek
Waste Water Treatment Plant standards.
2. EAD will require reasonable plant access for one (1)work week to collect applicable
information needed to develop the construction bid package.
3. EAD has not included time for engineering studies in this proposal. If EAD finds that an
engineering study will be required,it will be processed as a change order.
4. EAD assumes that front-end specifications are available and will be provided to EAD as a
template.
5. We have not included drafting time to revise any existing plant drawings or diagrams.
6. Additional incurred costs due to changes in system design,scope changes,schedule changes
or requirements will be processed as a change order.
7. We have not included any services that are not listed in this scope.
Again,thank you for giving us this opportunity to present this scope of work.We are available to
discuss this proposal at your earliest convenience.
Sincerely,
/2'
, 7 / _:),„,---....
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Ada Melby ''' Denis Hernandez-Granda
Integration Engineering Manager Chief Operating Officer
EXHIBIT"C"
BREAKDOWN OF COSTS
ProposedFee:
We propose to perform the above scope of professional services on a Time&
Material Basis, Not to Exceed: S56.990.00
- Pre-Design Phase: $7,000.00
- Construction Bid Package Development Phase: $34,230.00
- Bidding Phase: $7,400.00
- Construction Phase: $8,360.00
GENERAL TERMS&CONDITIONS
The attached proposal submitted by EAD Controls,Inc.("EAD"),a Nebraska corporation,to the Client named on the preceding page
("Client")is subject to the following terms and conditions,which shall supersede any conflicting terms in any other contract
documents.By accepting any of the scope of Services offered in this proposal Agreement("Agreement"),the Client agrees to be
bound by the following terms and conditions,including any supplements that maybe agreed to,with respect to all work
performed by EAD or its subconsultants:
A. Terms and Conditions of Payment: For Services performed,the Client shall pay EAD according to the attached Exhibit A
"Terms and Conditions of Payment".
B. Additional Services: If requested by Client,or if required because of changes in the Project,including an unexpected and/or
material change in Project conditions from the date of the Agreement,EAD shall furnish services in addition to those set forth in
Agreement("Additional Services").To the extent possible and prior to commencement of Additional Services,EAD and Client
shall agree upon,in writing,whether fees for Additional Services will be Lump Sum or Time and Materials.For Time and
Materials arrangement,Client shall pay EAD for such Additional Services of EAD's employees engaged directly on the Project an
amount equal to the cumulative hours charged to the Project by each class of EAD's employees times the current standard hourly
categorized rates for each applicable billing class;plus reimbursable expenses and subconsultants'charges,if any.
C. Standard of Care and Warranty: EAD will perform the Services in a manner consistent with that level of care and skill
ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale. EXCEPT
FOR THE STANDARD OF CARE PREVIOUSLY STATED OR ANY OTHER WARRANTY EXPRESSLY STATED IN THIS
AGREEMENT,THE CLIENT UNDERSTANDS AND AGREES THAT EAD HAS NOT MADE AND IS NOT MAKING ANY PROMISE,
WARRANTY OR REPRESENTATION,AND EAD EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES IMPOSED OR IMPLIED BY LAW.
[D.Cost Estimates and/or Opinions: EAD cannot and does not guarantee that the proposals,bids or actual costs will not vary
significantly from opinions of probable cost prepared by it.If at any time Client wishes greater assurances as to the amount of
any cost,Client shall separately employ an independent cost estimator to make such determination.Client agrees that any
opinion of cost in an estimate by EAD is not intended for use to develop a firm budget,a financial model or to make investment
decisions.]
E.Client's Obligations and EAD's Right to Rely:
1. Client shall be responsible for all requirements and instructions that it furnishes to EAD,and for the accuracy and
completeness of all programs,reports,data,and other information furnished by Client to EAD,pursuant to this Agreement EAD
may use and rely upon such requirements,programs,instructions,reports,data,and information in performing or furnishing
Services under this Agreement,subject to any express limitations or reservations applicable to the furnished items.
2. Client shall provide prompt written notice to EAD if Client becomes aware of any fault,defect or delay in EAD's Services or
the work of any subconsultant of EAD,including any error,omission or inconsistency in such Services or any alleged breach of
contract by EAD.
F.Limitation of Liability:In recognition of the relative risks,rewards,and benefits to both the Client and EAD,the risks have
been allocated such that the Client agrees to the fullest extent permitted by law,and notwithstanding any other provision of this
Agreement,the total liability,in the aggregate,of EAD and EAD's officers,directors,members,partners,agents,employees, to
Client and anyone claiming by,through,or under Client for any and all injuries,claims,losses,expenses,costs,or damages
whatsoever arising out of,resulting from,or in any way related to the Project,EAD's Services,or this Agreement,from any cause
or causes whatsoever,including but not limited to the negligence,professional errors or omissions,strict liability,breach of
contract,indemnity obligations,or warranty express or implied,of EAD or EAD's officers,directors,members,partners,agents,
employees,shall not exceed the total amount of$50,000.00 or the total compensation received by EAD under this Agreement,
whichever is greater. Higher limits are available for an additional fee. This limitation of liability shall not apply to claims based
on willful misconduct or gross negligence.
G.Mutual Waiver of Consequential Damages:To the fullest extent permitted by law,Client and EAD waive against each other,
and the other's employees,officers,directors,agents,insurers,and subconsultants,any and all claims for or entitlement to special,
incidental,indirect,or consequential damages,including but not limited to loss of profits or revenue,loss of use or opportunity,
loss of good will,cost of substitute facilities,goods,or services,or cost of capital,arising out of,resulting from,or in any way
related to the Project.
H. Right of Entry and Permits: Client warrants that it possesses the authority to provide right of entry permission for the
performance of EAD's Services.Client hereby grants EAD and EAD's subconsultants,the right to enter from time to time onto the
property owned by Client or other(s)in order for EAD to perform the Services.Except where EAD's Services explicitly includes
obtaining permits,licenses,and/or utility clearances for the performance of EAD's Services,Client warrants that it possesses
all necessary permits,licenses and/or utility clearances for the Services to be provided by EAD.
I. Hazardous Environmental Conditions on Site:It is acknowledged by both parties that EAD's Scope of Services does not
include any services related to Hazardous Environmental Conditions (i.e.,the presence of asbestos,PCBs,petroleum,hazardous
substances or waste,and radioactive materials)at the Project site. If EAD or any other party encounters,uncovers,or reveals a
Hazardous Environmental Condition,then Client shall promptly determine whether to retain a qualified expert to evaluate such
condition or take any necessary corrective action. If Client determines that other action is necessary to address the Hazardous
Environmental Condition,EAD 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.
J. Safety: Unless expressly agreed in the scope of Services,EAD shall not be responsible for site safety,or means and methods,and
shall have no obligation to direct or stop the work of Client's contractors,agents,or employees.
K. Instruments of Service: All design documents(drawings,specifications,reports,programs,security and hardware
configurations,and other documents,including those in electronic form)prepared by EAD and EAD's subconsultants are
Instruments of Service for use solely with respect to this Project.EAD and EAD's subconsultants shallbe deemed the authors and
owners of their respective Instruments of Service and shall retain all common law,statutory and other reserved rights,including
copyrights and the right of reuse,unless agreed upon otherwise,whether or not the Project is completed.EAD retains all
intellectual property rights to designs and concepts developed by EAD during the course of the Project. Notwithstanding the
forgoing,Client may make and retain copies of Instruments of Service for information and reference in connection with the use
of the Instruments of Service on the Project. EAD grants Client a limited license to use the Instruments of Service on the Project,
extensions of the Project,and for related uses of the Client,subject to receipt by EAD of full payment due and owing for all
Services relating to preparation of the Instruments of Service,and subject to the following limitations:
1. Client acknowledges that such Instruments of Service are not intended or represented to be suitable for use on the
Project unless completed by EAD,or for use or reuse by Client or others on extensions of the Project,on any other project,or for
any other use or purpose,without written verification or adaptation by EAD;
2. Any such use or reuse,or any modification of the Instruments of Service,without written verification,completion,or
adaptation by EAD,as appropriate for the specific purpose intended,will be at Client's sole risk and without liability or legal
exposure to EAD or to its officers,directors,agents,employees,and subconsultants;
3.Client shall indemnify and hold harmless EAD and its officers,directors,agents,employees,and subconsultants from all
claims,damages,losses,and expenses,including attorneys'fees,arising out of or resulting from any use,reuse,or modification of
the Instruments of Service without written verification,completion,or adaptation by EAD;and
4. Such limited license to Client shall not create any rights in third parties.
L. Insurance: Upon request,EAD shall provide Client written certification of the insurance listed below.If the Client requires
increased insurance coverage,EAD will,if specifically directed by the Client,take out additional insurance,if obtainable,at the
Client's expense.Client and EAD shall waive subrogation against the other party on general liability. Client is an additional
insured with respect to general and auto liability. EAD shall maintain during the performance hereof:
1. Workers'compensation in compliance with all applicable laws or statutes,whether federal or state,in which EAD operates,
including employer's liability insurance with a minimum of$1,000,000 for injury or death of each event,of each employee and
policy limit.
2. Comprehensive general liability including coverage for contractual liability of not less than$1,000,000($2,000,000
aggregate)combined single limit for bodily injury,personal injury and property damage as the result of any one occurrence.
3. Comprehensive automobile liability,including coverage for owned,hired and non-owned automobiles,of not less than
$1,000,000 combined single limit for bodily injury,personal injury and property damage as the result of any one occurrence.
4. Professional liability,including coverage for contractual liability,of not less than$2,000,000($2,000,000 aggregate)
combined single limit for errors and omissions.
5. Excess umbrella for general liability insurance with a minimum of$4,000,000 per occurrence/aggregate.
N.Indemnification:EAD shall,to the fullest extent permitted by law,indemnify and hold harmless Client from any damage,
liability or cost,including but not limited to reasonable attorneys'fees and costs of defense,to the extent caused by EAD's
negligent acts,errors or omissions in the performance of professional Services under this Agreement and those of its employees,
officers,directors,agents,and subconsultants.Client shall,to the fullest extent permitted by law,indemnify and hold harmless
EAD from any damage,liability or cost,including but not limited to reasonable attorneys'fees and costs of defense,to the extent
caused by Client's negligent acts,errors or omissions that arise out of or are related to any breach or failure on Client's part that
results in property damage or personal injury including death of third parties.
O. Termination: Either party may terminate this Agreement without cause upon seven(7)calendar days advance written
notice.If Client terminates without cause or if EAD terminates for cause,Client will pay EAD reimbursable expenses incurred,
non-cancelable commitments,and fees earned to the date of termination and through demobilization,including any cancellation
charges for vendors and subconsultants,and all reasonable demobilization costs.If EAD terminates without cause,EAD will be
promptly paid for all services performed and reimbursable expenses incurred prior to the date of termination.
M. Delays and Force Majeure:Neither Client nor EAD shall hold the other responsible for damages or delay in performance
caused by acts of God,strikes,lockouts,accidents,or other events beyond the control of the other or the other's employees and
agents. In the event of such a delay that impacts the time for performance of EAD's Services,the completion date for EAD's
Services shall be extended for a period equal to the length of the delay,plus any time needed to reallocate necessary personnel.
The affected party shall notify the other party in writing as soon as reasonably practicable after the occurrence of any event that
it believes will result in such a delay.
P. Dispute Resolution: Client and EAD agree that all disputes between them arising out of or relating to this Agreement or
Project shall be submitted to mediation unless parties mutually agree otherwise.Any Agreement reached in mediation shall be
enforceable as a settlement Agreement.In the event the parties to the Agreement are unable to reach a settlement of any dispute
through mediation,then such disputes shall be resolved by arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association. Client agrees that any arbitration hearings shall take place in Omaha,Nebraska.
Client consents to the jurisdiction of any arbitration panel in Douglas County,Nebraska,and waives any claim or assertion of
improper venue or forum non conveniens with regard to any arbitration proceedings in Douglas County,Nebraska. The
prevailing party in any arbitration relating to any dispute shall be entitled to recover from the other party those reasonable
attorney fees,costs and expenses incurred by the prevailing party in connection with the dispute.
Q. No Third-Party Beneficiaries:This Agreement is solely for the benefit of the parties hereto and nothing herein,express or
implied,is intended to confer any right or remedy on any person other than Client and EAD.
R. Controlling Law:This Agreement shall be construed and enforced in accordance with the laws of the State of Nebraska,
excluding only its conflict of laws principles.
S. Severability:If any of the provisions contained in this Agreement are held illegal,invalid or unenforceable,the enforceability of
the remaining provisions shall not be impaired thereby.
T. Assignment: This Agreement is to be binding upon the heirs,successors,and assigns of the parties hereto and is not to be
assigned by either party without first obtaining the written consent of the other.No assignment of this Agreement shall be
effective until the assignee assumes in writing the obligations of the assigning party and delivers such written assumption to the
other original party to this Agreement. Use of subconsultants by EAD or subsidiary or affiliate firms of EAD for technical or
professional services shall not be considered an assignment of a portion of this Agreement,and EAD shall remain fully
responsible for the work performed,whether such performance is by EAD or subconsultants.
U. Survival:All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating
responsibility or liability between the Client and EAD shall survive the completion of the services and the termination of this
Agreement.
V. Entire Agreement: These terms and conditions and the Agreement to which they are attached represent the entire
understanding of Client and EAD as to those matters contained herein. No prior oral or written understanding shall be of any
force or effect with respect to those matters covered herein. The Agreement may not be modified or altered except in writing.
Terms and Conditions of Payment
A. Billing and Payment:EAD will,bi-weekly,submit to Client an invoice for services and charges rendered during that cycle.
Payment shall be made by Client within 30 days after the statement date. A late payment charge of 1.5 percent(1.5%)per month
will be added to all amounts not paid within 30 days of statement date,accruing from the statement date. Any costs,including
reasonable attorneys'fees,incurred by EAD in collecting any delinquent amount shall be reimbursed by Client If a portion of
EAD's statement is disputed,the undisputed portion shall be paid by Client by the due date. Client shall advise EAD in writing of
the basis for any disputed portion of statement. Taxes on services as may be imposed by state and local authorities,other than
federal,state,and local net income taxes,and normal payroll taxes,shall be in addition to the payment stated in the attached
agreement.
B. Amount of Payment:For Services performed,the Client shall pay the EAD the sum of the following:
1. For time expended by personnel,payment at the hourly rates indicated in the attached Exhibit B"Schedule of Hourly
Professional Service Billing Rates". Such rates include overhead and profit. The schedule is effective to December 31,2016,and
may be revised thereafter. No revision will be made that are restricted to EAD's personnel assigned to work under this
agreement. Overtime hours will be any hours over 40 hours per week or more than 8 hours per day and will be charged at the
billable rate for exempt personnel and at 1.5 times the billable rate for nonexempt personnel. Overtime hours will only be
charged if required by this Project. Overtime for nonexempt personnel will only be charged if approved by Client's authorized
representative.
2. For expenses incurred by EAD,such as authorized travel and subsistence including airfare,food,lodging,automobile
rental, commercial services,and incidental expenses, the cost to EAD plus ten percent(10%).
3. For company-owned vehicles,amounts as determined from"Schedule of Rates"in effectat the time the Service is
provided.
4. Use of personal automobile shall be determined from the U.S.General Service Administration in effect at the time the
Service is provided,plus ten percent(10%).
5. For reproduction and printing,amounts as determined from the"Schedule of Rates"in effect at the time Service is
provided.
6. For computer,computer-aided design and drafting Services and facsimile charges,amounts as determined from the
"Schedule of Rates"in effect at the time the Service is provided.
7. For air courier service and for air freight,express,special crating,and insurance on EAD documents such as drawings,
data books,and instruction books,at cost to EAD plus ten percent(10%).
8. For long-distance telephone,telegraph,and teletype tolls,at cost to EAD plus ten percent(10%).
9. For outside research and professional services and expense and for services rendered by others as subcontractor(s)to
EAD such as surveying,real property description,soil borings,subsurface investigations,laboratory testing,field quality control
tests,progress photos,or other activities required or requested by Client,at the cost to EAD plus ten percent(10%).
10. For materials and supplies,at cost to EAD plus ten percent(10%).
11. For outside accounting,insurance counseling,and legal services,at cost to EAD plus ten percent(10%).
12. For additional insurance above EAD's base policy,at cost to EAD plus ten percent(10%).
13. Expenses of claims and litigation including attorneys'and consultants'fees incurred in connection with the job,except
with respect to disputes between EAD and Client,are reimbursable at cost to EAD plus ten percent(10%).
14. Expenses that arise as a direct consequence of the job execution,but are not specified elsewhere in this schedule,are
reimbursable at cost to EAD plus ten percent(10%).
15. Materials and equipment purchased for the job are reimbursable at cost to EAD plus ten percent(10%).
16. Subcontracts for materials and labor are reimbursable at cost to EAD plus ten percent(10%).
C-25A CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, professional services are needed to perform engineering services for
OPW 52969, being Plantwide RTU Upgrade project; and,
WHEREAS, EAD Control Systems, Inc. was selected by the Architects and Engineers
Selection Process and has agreed to provide services including project manual development, bid
phase services, and additional scopes of services for the project as listed in the attached
Professional Services Agreement, which by this reference is made a part hereof; and,
WHEREAS, EAD Control Systems, Inc. has agreed to perform the services for a fee not
to exceed $56,990.00, which is to be paid from the Sewer Revenue Improvements Fund 21124,
Sewer Separation Organization 116912, Sewer Revenue Bonds will be used to finance this
project.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF OMAHA:
THAT, as recommended by the Mayor, the Professional Services Agreement with EAD
Control Systems, Inc. to perform engineering services for OPW 52969, being Plantwide RTU
Upgrade project, is hereby approved.
BE IT FURTHER RESOLVED:
THAT,the Finance Department is authorized to pay a fee for these services not to exceed
$56,990.00, which is to be paid from the Sewer Revenue Improvements Fund 21124, Sewer
Separation Organization 116912, Sewer Revenue Bonds will be used to finance this project.
964bd APPROVED AS TO FORM:
ICI ATTORNEY DATE
By...OVI;4744" gfr"*"..
Councilmember
Adopted
r 14 2 16 4 -
Mayo„stattr
NO. i`
Resolution by
Res. that, as recommended by the Mayor. the
Professional Services Agreement with EAD
Control Systems, Inc. to perform engineering
services for OPW 52969, being Plantwide
RTU Upgrade project, is hereby approved
and that, the Finance Department is
authorized to pay a fee for these services not
to exceed $56,990.00, which is to be paid
from the Sewer Revenue Improvements Fund
21124, Sewer Separation Organization
116912, Sewer Revenue Bonds will be used
to finance this project.
964Abd
Presented to City Council
JUN 14 2016
Adopted -c)
/?u.der grown
City Clerk