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RES 2015-1452 - Agmt with Olsson Associates for residential snow plow contracts EIV 4JF QMAHA,API; .�E Public Works Department U » Omaha/Douglas Civic Center November 17, 2015 20 i 5 Nov _ci f-ti I L# 1819 l�arnam Street,Suite 601 _ !x M" i Omaha,Nebraska 68183-0601 Ao aN (402)444-5220 �+ YY L Fax(402)444-5248 �44'D PEBBt\A4 C 1 f ! CLERK City of Omaha '1,-1 t' H n ,, � A Robert G. Stubbe, P.E. Jean Stothert,Mayor ` Public Works Director Honorable President and Members of the City Council, Transmitted herewith is a Resolution approving a Professional Services Agreement with Olsson Associates to provide on-call contract administration services for the 2015-2016 Residential Snow Plow Contracts in various areas of the City. The scope of services is included in the Agreement, and includes providing up to six on-call field observers, working in teams of three, to conduct observations of contractor progress, inspection of completed work, check and document issues reported by the public during snow events for two 12 hour shifts as needed; and additional scopes made a part hereof with the inclusion of the attached agreement. Olsson Associates has agreed to perform the services detailed in the attached Professional Services Agreement for $83.50 per billable hour with an estimated total fee of$45,000.00; to be paid from the Street and Highway Allocation Fund 12131, Snow and Ice Control Organization 116154, year 2015 expenditures. Olsson Associates 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 Agreement. Respectfully submitted, Referred to City Council for Consideration: - 14-144- )0 Robert G. Stubbe, P.E. Date Mayor's Office Date Public Works Director Approved as to Funding: Approved: /I/WA / 23 /5 /ZOt .1 r [ )1Zit t /C/' 1.j Stephurtiss D to Spencer K. Danner, Jr. ate 39 Finance Director Human Rights and Relations Dire for p _ 915bd PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is hereby made and entered into this 9 day of September, 2015, by and between the City of Omaha, a municipal corporation located in Douglas County, Nebraska (hereinafter referred to as the "City"), and Olsson Associates (hereinafter referred to as the "Provider"), on the terms, conditions and provisions as set forth herein below. All references to "Contractor" shall mean"Provider". I. PROJECT NAME AND DESCRIPTION Snow Event Contractor Observations 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 2015/2016 winter season day period after receipt of a purchase order from the City. B. Provider designates Dave Wesely whose business address and phone number is 2111 S 67th Street, Ste 200, Omaha, NE 68106; Office 402-938-2480; Cell 402-618-1961 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 end of 2015/2016 winter season 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 Kevin Daily - Public Works whose business address and phone number are 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 $83.50/hr/per individual. Detailed breakdown of costs shall be shown in Exhibit"B". 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 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 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 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 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. 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 . Detailed breakdown of costs shall be shown in Exhibit"B". 411git COTO• CrO . - A-P 6j. I-t 3- ($ 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 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 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 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 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. 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. 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, religion, color, sex, age, sexual orientation, gender identity, disability, or national origin. The Contractor shall ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, sex, sexual orientation, gender identity, or national origin. 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 EXECUTED this 9 day of Sepptember , 2015 . Provider ,/ c y( �� By 4Ul,cl.we1 C. P,-emccic.ir % try 6. .42,44.l,,zC... ATTEST GENERAL NOTARY•Shale o1 Nebraska V PfRs t .p,,��- S u"'Vt.,"'Vt., 67roc.� Z. �`t de"' VERONICA if CHAMBERS � � Y _,A` My Comm.Exp.February 19,2017 (Title) EXECUTED this /9'5 day of ' __ /,. ATTEST CITY_QE OMAHA A Municipal Corporation _ - 46 —LeA-4 City lerk Mayor APPROVED AS TO FORM: 7/1(14-- TI.44 le- X'(j. Deputy City Attorney Revised: 12/2012 employment without regard to race, religion, color. sex. sexual orientation, gender identity, or national origin, age, 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. CLSSON ® ASSOCIATES LETTER AGREEMENT FOR PROFESSIONAL SERVICES September 4, 2015 City of Omaha Public Works Attn: Mr. Austin Rowser 1819 Farnam St. Suite 600 Omaha, Nebraska 68183 Re: LETTER AGREEMENT FOR PROFESSIONAL SERVICES Snow Event Contractor Observations (the "Project") City of Omaha Dear Mr. Rowser: It is our understanding that the City of Omaha - Public Works ("Client") requests Olsson Associates, Inc. ("Olsson") to perform the services described herein pursuant to the terms of this Letter Agreement for Professional Services, Olsson's General Provisions and any exhibits attached hereto (all documents constitute and are referred to herein as the "Agreement") for the Project. Olsson has acquainted itself with the information provided by Client relative to the Project and based upon such information offers to provide the services described below for the Project. Client warrants that it is either the legal owner of the property included in this Project or that Client is acting as the duly authorized agent of the legal owner of such property. Client acknowledges that it has reviewed the General Provisions and any exhibits attached hereto, which are expressly made a part of and incorporated into the Agreement by this reference. In the event of any conflict or inconsistency between this Letter Agreement, and the General Provisions regarding the services to be performed by Olsson, the terms of the General Provisions shall take precedence. Olsson shall provide the following services ("Scope of Services") to Client for the Project: When Olsson is contacted by the City of Omaha to respond to a snow event we will provide a maximum of eight responders including vehicles. We understand the scope of service is to monitor the snow removal contractors to verify hours, document completed snow routes, and remaining assigned streets to be cleared and keep City of Omaha abreast of their status. Olsson's fees are based on serving the SW areas of the City which correlates with the field office location. Should Client request work in addition to the Scope of Services, Olsson shall invoice Client for such additional services (Optional Additional Services) at the standard hourly billing labor rate charged for those employees actually performing the work, plus reimbursable 2111 South 67th Street, Suite 200 TEL 402.341.1116 Omaha, NE 68106 FAX 402.341.5895 www.olssonassociates.com expenses if any. Olsson shall not commence work on Optional Additional Services without Client's prior written approval. Olsson agrees to provide all of its services in a timely, competent and professional manner, in accordance with applicable standards of care, quality and scope. SCHEDULE FOR OLSSON'S SERVICES Unless otherwise agreed, Olsson expects to perform its services under the Agreement as follows: Anticipated Start Date: Winter 2015/2016 Season Anticipated Completion Date: Conclusion of Winter 2015/2016 Season COMPENSATION Client shall pay to Olsson for the performance of the Scope of Services a fixed fee of Eighty- Three Dollars and Fifty Cents/hour ($83.50/hr) for each person called into service for contractor observation. This is a loaded fixed fee which includes personnel and vehicles. Olsson's reimbursable expenses for this Project are included in the fixed fee. Olsson shall submit invoices on a monthly basis and payment is due within 30 calendar days of invoice date. TERMS AND CONDITIONS OF SERVICE We have discussed with you the risks, rewards and benefits of the Project, the Scope of Services, and our fees for such services and the Agreement represents the entire understanding between Client and Olsson with respect to the Project. The Agreement may only be modified in writing signed by both parties. Client's designated Project Representative shall be David Wesely CNSV Team Lead. If this Agreement satisfactorily sets forth your understanding of our agreement, please sign in the space provided below. Retain one original for your files and return an executed original to Olsson. OLSSON ASSOCIATES, INC. By 74` By Mic ael C. Piernicky PE. PTOE S e H essey, PE Page 2 of 3 By signing below, you acknowledge that you have full authority to bind Client to the terms of the Agreement. If you accept the terms set forth herein, please sign: CITY OF OMAHA PUBIC WORKS By • �-- 1 - -�- Signature Print Name Auc i t14 Title Dated _2 Z i t G:\Omaha\Admin\LETPROP\CNSV\City of Omaha\15-09-04_CNSV City of Omaha Snow Removal Observation.doc Page 3 of 3 GENERAL PROVISIONS These General Provisions are attached to and made a part of schedules; earnings or expense statements; cash flow or the respective Letter Agreement or Master Agreement, dated economic evaluations or; feasibility studies, appraisals or September 4, 2015 between City of Omaha Public Works valuations. ("Client") and Olsson Associates, Inc. ("Olsson") for professional services in connection with the project or projects 2.2.8 Furnishing the services of independent arising under such Letter Agreement or Master Agreement (the professional associates or consultants for work beyond the "Project(s)"). Scope of Services. As used herein, the term "this Agreement" refers to these 2.2.9 Services necessary due to the Client's award General Provisions, the applicable Letter Agreement or Master of more than one prime contract for the Project(s); services Agreement, and any other exhibits or attachments thereto as if necessary due to the construction contract containing cost plus they were part of one and the same document. or incentive-savings provisions; services necessary in order to arrange for performance by persons other than the prime SECTION 1—OLSSON'S SCOPE OF SERVICES contractor; or those services necessary to administer Client's contract(s). Olsson's scope of services for the Project(s) is set forth in the applicable Letter Agreement or Master Agreement ("Scope of 2.2.10 Services in connection with staking out the Services"). work of contractor(s). SECTION 2—ADDITIONAL SERVICES 2.2.11 Services during out-of-town travel or visits to the site beyond those specifically identified in this Agreement. 2.1 Unless otherwise expressly included, Scope of Services does not include the categories of additional services 2.2.12 Preparation of operating and maintenance set forth in Sections 2.2 and 2.3. manuals. 2.2 If Client and Olsson mutually agree for Olsson to 2.2.13 Services to redesign some or all of the perform any optional additional services as set forth in this Project(s). Section 2.2 ("Optional Additional Services"), Client will provide written approval of the agreed-upon Optional Additional 2.2.14 Preparing to serve or serving as a consultant Services, and Olsson shall perform or obtain from others such or witness or assisting Client with any litigation, arbitration or services and will be entitled to an increase in compensation at other legal or administrative proceeding. rates provided in this Agreement. Olsson may elect not to perform all or any of the Optional Additional Services without 2.2.15 Services relating to Construction Observation, cause or explanation: Certification, Inspection, Construction Cost Estimating, project observation, construction management, construction 2.2.1 Preparation of applications and supporting scheduling, construction phasing or review of Contractor's documents for governmental financial support of the Project(s); performance means or methods. preparation or review of environmental studies and related services; and assistance in obtaining environmental approvals. 2.3 Whenever, in its sole discretion, Olsson determines additional services as set forth in this Section 2.3 are 2.2.2 Services to make measured drawings of or to necessary to avoid a delay in the completion of the Project(s) investigate existing conditions of facilities. ("Necessary Additional Services"), Olsson shall perform or obtain from others such services without waiting for specific 2.2.3 Services resulting from changes in the general instructions from Client, and Olsson will be entitled to an scope,extent or character of the Project(s)or major changes in increase in compensation for such services at the standard documentation previously accepted by Client where changes hourly billing rate charged for those employees performing the are due to causes beyond Olsson's control. services, plus reimbursable expenses, if any: 2.2.4 Services resulting from the discovery of 2.3.1 Services in connection with work directive conditions or circumstances which were not contemplated by changes and/or change orders directed by the Client to any Olsson at the commencement of this Agreement. Olsson shall contractors. notify Client of the newly discovered conditions or circumstances and Client and Olsson shall renegotiate, in good 2.3.2 Services in making revisions to drawings and faith, the compensation for this Agreement, if amended terms specifications occasioned by the acceptance of substitutions cannot be agreed upon, Olsson may terminate this Agreement proposed by contractor(s); services after the award of each and Olsson shall be paid for its services through the date of contract in evaluating and determining the acceptability of an termination. unreasonable or excessive number of substitutions proposed 2.2.5 Providing renderings or models. by contractor(s); or evaluating an unreasonable or extensive number of claims submitted by contractor(s) or others in 2.2.6 Preparing documents for alternate bids connection with the Project(s). requested by Client. 2.3.3 Services resulting from significant delays, 2.2.7 Analysis of operations, maintenance or changes or price increases occurring as a direct or indirect overhead expenses; value engineering; the preparation of rate result of material, equipment or energy shortages. Page 1 of 8 19-3868.01 2.3.4 Additional or extended services during 3.4.2 Guarantee access to and make all provisions construction made necessary by (1) work damaged during for Olsson to enter upon public and private property reasonably construction, (2) a defective, inefficient or neglected work by necessary to perform its services on the Project(s). any contractor, (3) acceleration of the progress schedule involving services beyond normal working hours, or (4) default 3.4.3 Provide such legal, accounting, independent by any contractor. cost estimating or insurance counseling services as may be required for the Project(s); any auditing service required in SECTION 3—CLIENT'S RESPONSIBILITIES respect of contractor(s)' applications for payment; and/or any inspection services to determine if contractor(s) are performing 3.1. Client shall provide all criteria and full information as the work legally. to Client's requirements for the Project(s); designate and identify in writing a person to act with authority on Client's 3.4.4 Provide engineering surveys to establish behalf in respect of all aspects of the Project(s); examine and reference points for construction unless specifically included in respond promptly to Olsson's submissions; and give prompt Olsson's Scope of Services. written notice to Olsson whenever Client observes or otherwise becomes aware of any defect in the Olsson's services. 3.4.5 Furnish approvals and permits from all governmental authorities having jurisdiction over the Project(s). 3.2 Client agrees to pay Olsson the amounts due for services rendered and expenses within thirty (30) days after 3.4.6 If more than one prime contractor is to be Olsson has provided its invoice for such services. In the event awarded the contract for construction, designate a party to Client disputes any invoice item, Client shall give Olsson written have responsibility and authority for coordinating and notice of such disputed item within fifteen (15)days after receipt interfacing the activities of the various prime contractors. of such invoice and shall pay to Olsson the undisputed portion of the invoice according to the provisions hereof. If Client fails to 3.5 Client shall pay all costs incident to obtaining bids or pay any invoiced amounts when due, interest will accrue on proposals from contractor(s). each unpaid amount at the rate of thirteen percent (13%) per annum from the date due until paid according to the provisions 3.6 Client shall pay all permit application review costs for of this Agreement. Interest shall not be charged on any disputed government authorities having jurisdiction over the Project(s). invoice item which is finally resolved in Client's favor. Payment of interest shall not excuse or cure any default or delay in payment 3.7 Contemporaneously with the execution of this of amounts due. Agreement, Client shall designate in writing an individual to act as its duly authorized Project(s) representative. 3.2.1 If Client fails to make any payment due Olsson for services and expenses within thirty (30) days after receipt 3.8 Client shall bear sole responsibility for: of Olsson's statement therefore, Olsson may, after giving seven (7) days written notice to Client, suspend services to 3.8.1 Jobsite safety. Neither the professional Client under this Agreement until Olsson has been paid in full activities of Olsson, nor the presence of Olsson or its all amounts due for services, expenses and charges and Client employees or sub-consultants at the Project shall impose any will not obtain any license to any Work Product or be entitled to duty on Olsson relating to any health or safety laws, retain or use any Work Product pursuant to Section 7.1 unless regulations, rules, programs or procedures. and until Olsson has been paid in full and Client has fully satisfied all of its obligations under this Agreement. 3.8.2 Notifying third parties including any 3.3 Payments to Olsson shall not be withheld, postponed governmental agency or prospective purchaser, of the or made contingent on the construction, completion or success existence of any hazardous or dangerous materials located in of the Project(s) or upon receipt by the Client of offsetting or around the Project(s) site. reimbursements or credit from other parties who may have caused the need for additional services. No withholdings, 3.8.3 Providing and updating Olsson with accurate deductions or offsets shall be made from Olsson's information regarding existing conditions, including the compensation for any reason unless and until Olsson has been existence of hazardous or dangerous materials, proposed found to be legally liable for such amounts. Project(s) site uses, any change in Project(s) plans, and all subsurface installations, such as pipes, tanks, cables and 3.4 Client shall also do the following and pay all costs utilities within the Project(s)site. incident thereto: 3.9 Client releases Olsson from liability for any incorrect 3.4.1 Furnish to Olsson any existing and/or required advice, judgment or decision based on inaccurate information borings, probings or subsurface explorations; hydrographic furnished by Client or others. surveys; laboratory tests or inspections of samples, materials or equipment; appropriate professional interpretations of any of 3.10 If reasonable precautions will be inadequate to the foregoing; environmental assessment and impact prevent foreseeable bodily injury or death to persons resulting statements; property, boundary, easement, right-of-way, from a material or substance, including hazardous materials, topographic or utility surveys; property descriptions; and/or encountered on the site, Olsson may immediately stop work in zoning or deed restrictions; all of which Olsson may rely upon the affected area and report the condition to Client. Client shall in performing services hereunder. be solely responsible for retaining independent consultant(s)to determine the nature of the material and to abate or remove the material. Olsson shall not be required to perform any services or work relating to or in the area of such material until Page 2 of 8 19-3868.01 the material has been removed or rendered harmless and only contractor(s) or any subcontractor(s). Olsson shall sign pre- after approval, if necessary of the government agency with printed form certifications only if(a) Olsson approves the form jurisdiction. of such certification prior to the commencement of its services, (b) such certification is expressly included in the Scope of 3.11 Providing and assuming all responsibility for: Services, (c) the certification is limited to a statement of interpretation of contract documents; Construction professional opinion and does not constitute a warranty or Observations; Certifications; Inspections; Construction Cost guarantee, express or implied. It is understood that any Estimating; project observations; construction management; certification by Olsson shall not relieve the Client or the Client's construction scheduling; construction phasing; and review of contractors of any responsibility or obligation they may have by Contractor's performance, means and methods. Client waives industry custom or under any contract. any claims against Olsson and releases Olsson from liability relating to or arising out of such services and agrees, to the 4.4 "Construction Cost Estimate": An opinion of probable fullest extent permitted by law, to indemnify and hold Olsson construction cost made by Olsson. In providing opinions of harmless from any and all damages, liabilities or costs, probable construction cost, it is recognized that neither the including reasonable attorneys' fees and defense costs, Client nor Olsson has control over the costs of labor, relating to such actions and services. equipment or materials, or over the contractor's methods of determining prices or bidding. The opinion of probable SECTION 4—MEANING OF TERMS construction costs is based on Olsson's reasonable professional judgment and experience and does not constitute 4.1 The "Cost of Construction" of the entire Project(s) a warranty, express or implied, that the contractor's bids or the (herein referred to as "Cost of Construction") means the total negotiated price of the work on the Project(s)will not vary from cost to Client of those portions of the entire Project(s)designed the Client's budget or from any opinion of probable cost and specified by Olsson, but it will not include Olsson's prepared by Olsson. compensation and expenses, the cost of land, rights-of-way, or compensation for or damages to, properties unless this 4.5 "Day": A calendar day of 24 hours. The term "days" Agreement so specifies, nor will it include Client's legal, shall mean consecutive calendar days of 24 hours each, or accounting, insurance counseling or auditing services, or fraction thereof. interest and financing charges incurred in connection with the Project(s) or the cost of other services to be provided by others 4.6 "Construction Observation": If included in the Scope to Client pursuant to Section 3. of Services, such services during construction shall be limited to periodic visual observation and testing of the work to 4.2 The "Salary Costs": Used as a basis for payment determine that the observed work generally conforms to the mean salaries and wages (base and incentive) paid to all contract documents. Olsson shall not be responsible for Olsson's personnel engaged directly on the Project(s), constant or exhaustive observation of the work. Client including, but not limited to, engineers, architects, surveyors, understands and agrees that such visual observations are designers, draftsmen, specification writers, estimators, other discrete sampling procedures and that such procedures technical and business personnel; plus the cost of customary indicate conditions that exist only at the locations and times the and statutory benefits, including, but not limited to, social observations were performed. Performance of Construction security contributions, unemployment, excise and payroll Observation services does not constitute a warranty or taxes, workers' compensation, health and retirement benefits, guarantee of any type, since even with diligent observation, sick leave,vacation and holiday pay and other group benefits. some construction defects, deficiencies or omissions in the work may occur. Olsson shall have no responsibility for the 4.3 "Certify" or "a Certification": If included in the Scope means, methods, techniques, sequences or procedures of Services, such services shall be limited to a statement of selected by the contractor or for the contractor's safety Olsson's opinion, to the best of Olsson's professional precautions and programs nor for failure by the contractor to knowledge, information and belief, based upon its periodic comply with any laws or regulations relating to the performance observations and reasonable review of reports and tests or furnishing of any work by the contractor. Client shall hold its created by Olsson or provided to Olsson. Olsson shall not be contractor(s) solely responsible for the quality and completion responsible for constant or exhaustive observation of the work. of the Project(s), including construction in accordance with the Client understands and agrees that any certifications based construction documents. Any duty under this Agreement is for upon discrete sampling observations and that such the sole benefit of the Client and not for any third party, observations indicate conditions that exist only at the locations including the contractor or any subcontractor. Client, or its and times the observations were performed. Performance of designees shall notify Olsson at least twenty-four(24) hours in such observation services and certification does not constitute • advance of any field tests and observations required by the a warranty or guarantee of any type, since even with diligent construction documents. observation, some construction defects, deficiencies or omissions in the work may occur. Olsson shall have no 4.7 "Inspect" or "Inspection": If included in the Scope of responsibility for the means, methods, techniques, sequences Services, such services shall be limited to the periodic visual or procedures selected by the contractor(s) or for the observation of the contractor's completed work to permit contractor's safety precautions and programs nor for failure by Olsson, as an experienced and qualified professional, to the contractor(s)to comply with any laws or regulations relating determine that the observed work, generally conforms to the to the performance or furnishing of any work by the contract documents. Olsson shall not be responsible for contractor(s). Client shall hold its contractor(s) solely constant or exhaustive observation of the work. Client responsible for the quality and completion of the Project(s), understands and agrees that such visual observations are including construction in accordance with the construction discrete sampling procedures and that such procedures documents. Any duty under this Agreement is for the sole indicate conditions that exist only at the locations and times the benefit of the Client and not for any third party, including the observations were performed. Performance of such Page 3 of 8 19-3868.01 observation services does not constitute a warranty or incurred by Olsson in connection with the orderly termination of guarantee of any type, since even with diligent observation, this Agreement, including but not limited to demobilization, some construction defects, deficiencies or omissions in the reassignment of personnel, associated overhead costs, any work may occur. Olsson shall have no responsibility for the fees, costs or expenses incurred by Olsson in preparing or means, methods, techniques, sequences or procedures negotiating any proposals submitted to Client for Olsson's selected by the contractor(s) or for the contractor's safety Scope of Services or Optional Additional Services under this precautions and programs nor for failure by the contractor(s)to Agreement and all other expenses directly resulting from the comply with any laws or regulations relating to the performance termination and a reasonable profit of ten percent (10%) of or furnishing of any work by the contractor(s). Client shall hold Olsson's actual costs (including overhead) incurred. its contractor(s) solely responsible for the quality and completion of the Project(s), including construction in SECTION 6—DISPUTE RESOLUTION accordance with the construction documents. Any duty under this Agreement is for the sole benefit of the Client and not for 6.1. Mediation any third party, including the contractor(s) or any subcontractor(s). Client, or its designees, shall notify Olsson at 6.1.1 All questions in dispute under this Agreement least twenty-four (24) hours in advance of any inspections shall be submitted to mediation. On the written notice of either required by the construction documents. party to the other of the election to submit any dispute under this Agreement to mediation, each party shall designate their 4.8 "Record Documents": Drawings prepared by Olsson representatives and shall meet within ten (10) days after the upon the completion of construction based upon the drawings service of the notice. The parties themselves shall then attempt and other data furnished to Olsson by the Contractor and to resolve the dispute within ten(10)days of meeting. others showing significant changes in the work on the Project(s) made during construction. Because Record 6.1.2 Should the parties themselves be unable to Documents are prepared based on unverified information agree on a resolution of the dispute, and then the parties shall provided by others, Olsson makes no warranty of the accuracy appoint a third party who shall be a competent and impartial or completeness of the Record Documents. party and who shall be acceptable to each party, to mediate the dispute. Any third party mediator shall be qualified to SECTION 5—TERMINATION evaluate the performance of both of the parties, and shall be familiar with the design and construction progress. The third 5.1 Either party may terminate this Agreement, for cause party shall meet to hear the dispute within ten(10)days of their upon giving the other party not less than seven (7) calendar selection and shall attempt to resolve the dispute within fifteen days written notice of default for any of the following reasons; (15)days of first meeting. provided, however, that the notified party shall have the same seven (7)calendar day period in which to cure the default: 6.1.3 Each party shall pay the fees and expenses of the third party mediator and such costs shall be borne equally 5.1.1 Substantial failure by the other party to perform by both parties. in accordance with the terms of this Agreement and through no fault of the terminating party; 6.2 Arbitration or Litigation 5.1.2 Assignment of this Agreement or transfer of the 6.2.1 Olsson and Client agree that from time to time, Project(s) by either party to any other entity without the prior there may be conflicts, disputes and/or disagreements written consent of the other party; between them, arising out of or relating to the services of Olsson, the Project(s), or this Agreement (hereinafter 5.1.3 Suspension of the Project(s) or Olsson's collectively referred to as "Disputes") which may not be services by the Client for more than ninety(90) calendar days, resolved through mediation. Therefore, Olsson and Client. consecutive or in the aggregate. agree that all Disputes shall be resolved by binding arbitration or litigation at the sole discretion and choice of Olsson. If 5.2 In the event of a "for cause" termination of this Olsson chooses arbitration, the arbitration proceeding shall Agreement by either party, the Client shall, within fifteen (15) proceed in accordance with the Construction Industry calendar days after receiving Olsson's final invoice, pay Olsson Arbitration Rules of the AAA. for all services rendered and all reimbursable costs incurred by Olsson up to the date of termination, in accordance with the 6.2.2 Client hereby agrees that Olsson shall have payment provisions of this Agreement. the right to include Client, by consolidation, joinder or other manner, in any arbitration or litigation involving Olsson and a 5.2.1 In the event of a "for cause" termination of this subconsultant or subcontractor of Olsson or Olsson and any Agreement by Client and (a) a final determination of default is other person or entity, regardless of who originally initiated entered against Olsson under Section 6.2 and (b) Client has such proceedings. fully satisfied all of its obligations under this Agreement, Olsson shall grant Client a limited license to use the Work Product 6.2.3 If Olsson chooses arbitration or litigation, either pursuant to Section 7.1. may be commenced at any time prior to or after completion of the Project(s), provided that if arbitration or litigation is 5.3 The Client may terminate this Agreement for the commenced prior to the completion of the Project(s), the Client's convenience and without cause upon giving Olsson not obligations of the parties under the terms of this Agreement less than seven (7) calendar days written notice. In the event shall not be altered by reason of the arbitration or litigation of any termination that is not the fault of Olsson, the Client being conducted. Any arbitration hearings or litigation shall shall pay Olsson, in addition to payment for services rendered take place in Lincoln, Nebraska, the location of Olsson's home and reimbursable costs incurred, for all expenses reasonably office. Page 4 of 8 19-3868.01 6:2.4 The prevailing party in any arbitration or by Client or others on extensions of the Project(s) or on any litigation relating to any Dispute shall be entitled to recover other Project(s). Client will not distribute or convey such Work from the other party those reasonable attorney fees, costs and Product to any other persons or entities without Olsson's prior expenses incurred by the prevailing party in connection with written consent which shall include a release of Olsson from the Dispute. liability and indemnification by the third party. Any reuse of Work Product without written verification or adaptation by 6.3 Certification of Merit Olsson for the specific purpose intended will be at Client's sole risk and without liability or legal exposure to Olsson, or to Client agrees that it will not assert any claim, including but not Olsson's independent professional associates or consultants, limited to, professional negligence, negligence, breach of and Client shall indemnify and hold harmless Olsson and contract, misconduct, error, omission, fraud, or Olsson's independent professional associates and consultants misrepresentation ("Claim") against Olsson, or any Olsson from all claims, damages, losses and expenses including subconsultant, unless Client has first provided Olsson with a attorneys' fees arising out of or resulting therefrom. Any such sworn certificate of merit affidavit setting forth the factual and verification or adaptation of Work Product will entitle Olsson to legal basis for such Claim (the "Certificate"). The Certificate further compensation at rates to be agreed upon by Client and shall be executed by an independent engineer ("Certifying Olsson. Engineer") currently licensed and practicing in the jurisdiction of the Project site. The Certificate must contain: (a) the name 7.2 Electronic Files and license number of the Certifying Engineer; (b the qualifications of the Certifying Engineer, including a list of all By accepting and utilizing any electronic file of any Work publications authored in the previous 10 years and a list of all Product or other data transmitted by Olsson, the Client agrees cases in which the Certifying Engineer testified within the for itself, its successors, assigns, insurers and all those previous 4 years ; (c) a statement by the Certifying Engineer claiming under or through it, that by using any of the setting forth the factual basis for the Claim; (d) a statement by information contained in the attached electronic file, all users the Certifying Engineer of each and every act, error, or agree to be bound by the following terms. All of the information omission that the Certifying Engineer contends supports the contained in any electronic file is the work product and Claim or any alleged violation of any applicable standard of instrument of service of Olsson, who shall be deemed the care; (e) a statement by the Certifying Engineer of all opinions author, and shall retain all common law, statutory law and the Certifying Engineer holds regarding the Claim or any other rights, including copyrights, unless the same have alleged violation of any applicable standard of care; (f) a list of previously been transferred in writing to the Client. The every document related to the Project reviewed by the information contained in any electronic file is provided for the Certifying Engineer; and (g) a list of every individual who convenience to the Client and is provided in "as is" condition. provided Certifying Engineer with any information regarding the The Client is aware that differences may exist between the Project. The Certificate shall be provided to Olsson not less electronic files transferred and the printed hard-copy original than thirty (30) days prior to any arbitration or litigation signed and stamped drawings or reports. In the event of a commenced by Client or not less than ten (10)days prior to the conflict between the signed original documents prepared by initial response submitted by Client in any arbitration or Olsson and the electronic files, which may be transferred, the litigation commenced by someone other than Client. The signed and sealed original documents shall govern. Olsson Certificate is a condition precedent to the right of Client to specifically disclaims all warranties, expressed or implied, assert any Claim in any litigation or arbitration and Client's including without limitation, and any warranty of merchantability failure to timely provide a Certificate to Olsson will be grounds or fitness for a particular purpose with respect to any electronic for automatic dismissal of the Claim with prejudice. files. It shall be Client's responsibility to confirm the accuracy of the information contained in the electronic file and that it SECTION 7—MISCELLANEOUS accurately reflects the information needed by the Client. Client shall not retransmit any electronic files, or any portion thereof, 7.1 Reuse of Documents without including this disclaimer as part of any such transmissions. In addition, Client agrees, to the fullest extent All documents, including drawings, specifications, reports, permitte d by law, to indemnify and hold harmless Olsson, its boring logs, maps, field data, data, test results, information, officers, directors, employees and sub consultants against any recommendations, or opinions prepared or furnished by Olsson and all damages, liabilities, claims or costs, including (and Olsson's independent professional associates and reasonable attorney's and expert witness fees and defense consultants) pursuant to this Agreement ("Work Product"), are costs, arising from any changes made by anyone other than all Olsson's instruments of service, do not constitute goods or Olsson or from any reuse of the electronic files without the products, and are copyrighted works of Olsson. Olsson shall prior written consent of Olsson. retain an ownership and property interest in such Work Product whether or not the Project(s) is completed. If Client has fully 7.3 Construction Cost Estimate satisfied all of its obligations under this Agreement, Olsson shall grant Client a limited license to use the Work Product and Since Olsson has no control over the cost of labor, materials, Client may make and retain copies of Work Product for use in equipment or services furnished by others, or over the connection with the Project(s); however, such Work Product is contractor(s)' methods of determining prices, or over for the exclusive use and benefit of Client or its agents in competitive bidding or market conditions, Olsson's connection with the Project(s), are not intended to inform, Construction Cost Estimate provided for herein is made on the guide or otherwise influence any other entities or persons with basis of Olsson's experience and qualifications and represent respect to any particular business transactions, and should not Olsson's best judgment as an experienced and qualified be relied upon by any entities or persons other than Client or professional engineer, familiar with the construction industry. its agents for any purpose other than the Project(s). Such Work Client acknowledges and agrees that Olsson cannot and does Product is not intended or represented to be suitable for reuse not guarantee proposals or bids and that actual total Project(s) Page 5 of 8 19-3868.01 or construction costs may reasonably vary from Olsson's take promptly whatever reasonable steps are necessary to Construction Cost Estimate. If prior to the bidding or relieve the effect of such cause. negotiating phase Client wishes greater assurance as to total Froject(s) or construction costs, Client shall employ an 7.8 Confidentiality independent cost estimator as provided in paragraph 3.4.3. If Olsson's Construction Cost Estimate was performed in In performing this Agreement, the parties may disclose to each accordance with its standard of care and was reasonable other written or oral non-public, confidential or proprietary under the total circumstances, any services performed by information, including but not limited to, information of a Olsson to modify the contract documents to bring the business, planning, marketing or technical nature and models, construction cost within any limitation established by Client will tools, hardware and software, and any documents, reports, be considered Optional Additional Services and paid for as memoranda, notes, files or analyses that contain, summarize such by Client. If, however, Olsson's Construction Cost or are based upon any proprietary or confidential information Estimate was not performed in accordance with its standard of (hereafter referred to as the"Information"). care and was unreasonable under the total circumstances and the lowest negotiated bid for construction of the Project(s) 7.8.1 Therefore, Olsson and Client agree that the unreasonably exceeds Olsson's Construction Cost Estimate, party receiving Information from the other party to this Olsson shall modify its work as necessary to adjust the Agreement (the "Receiving Party") shall keep Information Project(s)' size, and/or quality to reasonably comply with the confidential and not use the Information in any manner other Client's budget at no additional cost to Client. Under such than in the performance of this Agreement without prior written circumstances, Olsson's modification of its work at no cost approval of the party disclosing Information (the "Disclosing shall be the limit of Olsson's responsibility with regard to any Party") unless Client is a public entity and the release of unreasonable Construction Cost Estimate. Information is required by law or legal process. 7.4 Prevailing Wages 7.8.2 The existence of discussions between the parties, the purpose of this Agreement, and this Agreement It is Client's responsibility to determine whether the Project(s) shall be considered Information subject to the confidentiality is covered under any prevailing wage regulations. Unless provisions of this Agreement. Client specifically informs Olsson in writing that the Project(s) is a prevailing wage project and is identified as such in the 7.8.3 Notwithstanding anything to the contrary Scope of Services, Client agrees to reimburse Olsson and to herein, the Receiving Party shall have no obligation to defend, indemnify and hold harmless Olsson from and against preserve the confidentiality of any Information which: any liability, including costs, fines and attorneys'fees, resulting from a subsequent determination that the Project(s) was 7.8.3.1 was previously known to the Receiving covered under any prevailing wage regulations. Party free of any obligation to keep it confidential; or 7'.5 Samples 7.8.3.2 is or becomes publicly available by other than unauthorized disclosures; or All material testing samples shall remain the property of the Client. If appropriate, Olsson shall preserve samples obtained 7.8.3.3 is independently developed by the no longer than forty-five (45) days after the issuance of any Receiving Party without a breach of this Agreement; or document that includes the data obtained from those samples. After that date, Olsson may dispose of the samples or return 7.8.3.4 is disclosed to third parties by the them to Client at Client's cost. Disclosing Party without restrictions; or 7.6 Standard of Care 7.8.3.5 is received from a third party not subject to any confidentiality obligations. Olsson will strive to perform its services in a manner consistent with that level of care and skill ordinarily exercised by members 7.8.4 In the event that the Receiving Party is of Olsson's profession providing similar services in the same required by law or legal process to disclose any of Information locality under similar circumstances at the time Olsson's of the Disclosing Party, the Receiving Party required to services are performed. This Agreement creates no other disclose such Information shall provide the Disclosing Party representation,warranty or guarantee,express or implied. with prompt oral and written notice, unless notice is prohibited by law(in which case such notice shall be provided as early as 7.7 Force Majeure may be legally permissible), of any such requirement so that the Disclosing Party may seek a protective order or other Any delay in the performance of any of the duties or obligations appropriate remedy. of either party hereto (except the payment of money) shall not be considered a breach of this Agreement and the time 7.8.5 Nothing contained in this Agreement shall be required for performance shall be extended for a period equal construed as altering any rights that the Disclosing Party has in to the period of such delay, provided that such delay has been the Information exchanged with or disclosed to the Receiving caused by or is the result of any acts of God, acts of the public Party, and upon request, the Receiving Party will return all enemy, insurrections, riots, embargoes, labor disputes, Information received in tangible form to the Disclosing Party, or including strikes, lockouts, job actions, boycotts, fires, at the Receiving Party's option, destroy all such Information. If explosions, floods, shortages of material or energy, or other the Receiving Party exercises its option to destroy the unforeseeable causes beyond the control and without the fault Information, the Receiving,Party shall certify such destruction or negligence of the party so affected. The affected party shall to the Disclosing Party. give prompt notice to the other party of such cause, and shall Page 6 of 8 19-3868.01 7.8.6 The parties acknowledge that disclosure or use claims, liability and expense resulting from operations under of Information in violation of this Agreement could cause this Agreement on account of injury to, destruction of, or loss irreparable harm for which monetary damages may be difficult or impairment of any property right in or to oil, gas, or other to ascertain or constitute an inadequate remedy. Each party mineral substance or water, if at the time of the act or omission therefore agrees that the Disclosing Party shall be entitled in causing such injury, destruction, loss or impairment, said addition to its other rights to seek injunctive relief for any substance had not been reduced to physical possession above violation of this Agreement. the surface of the earth, and for any loss or damage to any formation, strata, reservoir beneath the surface of the earth. 7.8.7 The obligations of confidentiality set forth herein shall survive termination of this Agreement, but shall 7.9.5 Notwithstanding anything to the contrary only remain in effect for a period of one (1) year from the date contained herein, it is understood and agreed by and between the Information is first disclosed. Olsson and Client that the responsibility for pollution and contamination shall be as follows: 7.9 Damage or Injury to Subterranean Structures or Utilities, Hazardous Materials, Pollution and 7.9.5.1 Unless otherwise provided herein, Client Contamination shall assume all responsibility for, including control and removal of, and protect, defend and save harmless Olsson 7.9.1 To the extent that work pursuant to this from and against all claims, demands and causes of action of Agreement requires any sampling, boring, excavation, ditching every kind and character arising from pollution or or other disruption of the soil or subsurface at the Site, Olsson contamination (including naturally occurring radioactive shall confer with Client prior to such activity and Client will be material) which originates above the surface of the land or responsible for identifying, locating and marking, as necessary, water from spills of fuels, lubricants, motor oils, pipe dope, any private subterranean structures or utilities and Olsson paints, solvents, ballast, bilge and garbage, except shall be responsible for arranging investigation of public unavoidable pollution from reserve pits, wholly in Olsson's subterranean structures or utilities through an appropriate possession and control and directly associated with Olsson's utility one-call provider. Thereafter, Olsson shall take all equipment. reasonable precautions to avoid damage or injury to subtrerranean structures or utilities which were identified by 7.9.5.2 In the event a third party commits an act or Client or the one-call provider. Olsson shall not be responsible omission which results in pollution or contamination for which for any damage, liability or costs, for any property damage, either Olsson or Client, for whom such party is performing injury or economic loss arising or allegedly arising from work, is held to be legally liable, the responsibility therefore damages to subterranean structures or utilities caused by shall be considered as between Olsson and Client, to be the subsurface penetrations in locations approved by Client and/or same as if the party for whom the work was performed had the one call provider or not correctly shown on any plans, performed the same and all of the obligations regarding drawings or utility clearance provided to Olsson, except for defense, indemnity, holding harmless and limitation of damages caused by the negligence of Olsson in the use of responsibility and liability, as set forth herein, shall be such information. specifically applied. 7.9.2 It is understood and agreed that any 7.10 Controlling Law and Venue assistance Olsson may provide Client in the disposal of waste materials shall not result in Olsson being deemed as a The parties agree that this Agreement and any legal actions generator, arranger, transporter or disposer of hazardous concerning its validity, interpretation or performance shall be materials or hazardous waste as defined under any law or governed by the laws of the State of Nebraska. It is further regulation. Title to all samples and waste materials remains agreed that any legal action between the parties arising out of with Client, and at no time shall Olsson take title to the above this Agreement or the performance of services shall be brought material. Client may authorize Olsson to execute Hazardous in a court of competent jurisdiction in Nebraska. Waste Manifest, Bill of Lading or other forms as agent of Client. If Client requests Olsson to execute such documents 7.11 Subconsultants as its agent, the Hazardous Waste Manifest, Bill of Lading or other similar documents shall be completed in the name of the Olsson may utilize as necessary in its discretion Client. Client agrees to indemnify and hold Olsson harmless subconsultants and other subcontractors. Olsson will be paid from any and all claims that Olsson is a generator, arranger, for all services rendered by its subconsultants and other transporter, or disposer of hazardous waste as a result of any subconsultants as set forth in this Agreement. actions of Olsson, including, but not limited to, Olsson signing a Hazardous Waste Manifest, Bill of Lading or other form on 7.12 Assignment behalf of Client. 7.12.1 Client and Olsson each are hereby bound and 7.9.3 At any time, Olsson can request in writing that the partners, successors, executors, administrators and legal Client remove samples, cuttings and hazardous substances representatives of Client and Olsson (and to the extent generated by the Project(s) from the project site or other permitted by paragraph 7.12.2 the assigns of Client and location. Client shall promptly comply with such request, and Olsson) are hereby bound to the other party to this Agreement pay and be responsible for the removal and lawful disposal of and to the partners, successors, executors, administrators and samples, cuttings and hazardous substances, unless other legal representatives (and said assigns) of such other party, in arrangements are mutually agreed upon in writing. respect of all covenants, agreements and obligations of this Agreement. 7.9.4 Client shall release Olsson of any liability for, and shall defend and indemnify Olsson against any and all Page 7 of 8 19-3868.01 7.12.2 Neither Client nor Olsson shall assign, sublet by law, Olsson's total liability to the Client for any and all or transfer any rights under or interest in (including, but without injuries, claims, losses, expenses, damages, or claims limitation, moneys that may become due or moneys that are expenses of any kind arising from any services provided by or due) this Agreement without the written consent of the other, through Olsson under this Agreement, shall not exceed the except to the extent that any assignment, subletting or transfer amount of Olsson's fee earned under this Agreement. Client is mandated by law or the effect of this limitation may be acknowledges that such causes include, but are not limited to, restricted by law. Unless specifically stated to the contrary in negligence, statutory violations, misrepresentation, fraud, any written consent to an assignment, no assignment will deceptive trade practices, breach of fiduciary duties, strict release or discharge the assignor from any duty or liability, breach of contract and/or breach of strict or implied responsibility under this Agreement. Nothing contained in this warranty. This limitation of liability shall apply to all phases of paragraph shall prevent Olsson from employing such Olsson's services performed in connection with the Project(s), subconsultants and other subcontractors as Olsson may deem whether subsequent to or prior to the execution of this appropriate to assist in the performance of services under this Agreement. Agreement. 7.15 Entire Agreement 7.12.3 Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to This Agreement supersedes all prior communications, anyone other than Client and Olsson, and all duties and understandings and agreements, whether oral or written. responsibilities undertaken pursuant to this Agreement will be Amendments to this Agreement must be in writing and signed for the sole and exclusive benefit of Client and Olsson and not by the Client and Olsson. for the benefit of any other party. There are no third-party beneficiaries of this Agreement. 7.13 Indemnity Olsson and Client mutually agree, to the fullest extent permitted by law, to indemnify and hold each other harmless from any and all damages, liabilities or costs, including reasonable attorneys' fees and defense costs, relating to third party personal injury or third party property damage and arising from their own negligent acts, errors or omissions in the performance of their services under this Agreement, but only to the extent that each party is responsible for such damages, liabilities or costs on a comparative basis of fault. 7.14 Limitation on Damages 7.14.1 Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither party's individual employees, principals, officers or directors shall be subject to personal liability or damages arising out of or connected in any way to the Project(s) or to this Agreement. 7.14.2 Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither Client nor Olsson, their respective officers, directors, partners, employees, contractors or subconsultants shall be liable to the other or shall make any claim for any delay damages, any punitive damages or any incidental, indirect or consequential damages arising out of or connected in any way to the Project(s) or to this Agreement. This mutual waiver of delay damages and consequential damages shall include, but is not limited to, disruptions, accelerations, inefficiencies, increased construction costs, increased home office overhead, loss of use, loss of profit, loss of business, loss of income, loss of reputation or any other delay or consequential damages that either party may have incurred from any cause of action including, but not limited to, negligence, statutory violations, misrepresentation, fraud, deceptive trade practices, breach of fiduciary duties, strict liability, breach of contract and/or breach of strict or implied warranty. Both the Client and Olsson shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in the Project(s). 7.14.3 Notwithstanding any other provision of this Agreement, Client agrees that, to the fullest extent permitted Page 8 of 8 19-3868.01 c Zsa CITY OF OMAHA LEGISLATIVE CHAMBER Omaha,Nebraska RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: WHEREAS, a Professional Services Agreement with Olsson Associates to provide on- call contract administration services for the 2015-2016 Residential Snow Plow Contracts in various areas of the City; and, WHEREAS, Olsson Associates was selected by the Architects and Engineers Selection Process and has agreed to provide on-call field observation and investigation services during snow events, and additional services as listed in the attached Professional Services Agreement, which by this reference is made a part hereof; and, WHEREAS, Olsson Associates has agreed to perform these services for a fee of$83.50 per billable hour with an estimated total billable cost of$45,000.00, which will be paid from the Street and Highway Allocation Fund 12131, Snow and Ice Control Organization 116154, year 2015 expenditures. 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 Olsson Associates to provide on-call field investigation and contract administration services for the 2015-2016 Residential Snow Plow Contracts in various areas of the City, is hereby approved. 5 BE IT FURTHER RESOLVED: THAT, the Finance Department is authorized to pay an estimated fee of$45,000.00 to be paid from the Street and Highway Allocation Fund 12131, Snow and Ice Control Organization 116154, year 2015 expenditures. 916bd APPROVED AS TO FORM: 7 ITY ATTORNEY DATE B j y �� Counci lmember NO11,, Adopted 7 201 7,67 City Clerk ////7/� Approve .... 14,a Mayor NO. 1� .......... Resolution by Res. that, as recommended by the Mayor, the Professional Services Agreement with Olsson Associates to provide on-call field investigation and contract administration services for the 2015-2016 Residential Snow Plow Contracts in various areas of the City, is hereby approved; and that, the Finance Department is authorized to pay an estimated fee of $45,000.00 to be paid from the Street and Highway Allocation Fund 12131, Snow and Ice Control Organization 116154, year 2015 expenditures. 915Abd Presented to City Council Nov 1 7 2015 Adopted 7- gutter grown, City Clerk