HomeMy WebLinkAboutHDR_Engineering_-_PSA_-_Waterloo-RidgewayHammond_Roundabout_-_6.1.26Docusign Envelope ID: FC03E4DE-304E-838E-81B4-75755378BEB1
SHORT FORM AGREEMENT BETWEEN OWNER AND
HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made as of this 1st day of June , 2026 ,
between the City of Waterloo, Iowa ("OWNER") and HDR ENGINEERING, INC.,
("ENGINEER" or "CONSULTANT") for services in connection with the project known as
(Ridgeway Ave and Hammond Ave Roundabout) ("Project");
WHEREAS, OWNER desires to engage ENGINEER to provide professional
engineering, consulting and related services ("Services") in connection with the Project; and
WHEREAS, ENGINEER desires to render these Services as described in SECTION I,
Scope of Services.
NOW, THEREFORE, OWNER and ENGINEER in consideration of the mutual
covenants contained herein, agree as follows:
SECTION I. SCOPE OF SERVICES
ENGINEER will provide Services for the Project, which consist of the Scope of Services as
outlined on the attached Exhibit A.
The ENGINEER'S representative ("Project Manager") is Aaron Granquist, while the OWNER's
representative ("Project Manager") is Safiah Elahi.
SECTION II. TERMS AND CONDITIONS OF ENGINEERING SERVICES
The HDR Engineering, Inc. Terms and Conditions, which are attached hereto in Exhibit B, are
incorporated into this Agreement by this reference as if fully set forth herein.
SECTION III. RESPONSIBILITIES OF OWNER
The OWNER shall provide the information set forth in paragraph 6 of the attached Exhibit B
"HDR Engineering, Inc. Terms and Conditions for Professional Services."
SECTION IV. COMPENSATION
Compensation for ENGINEER'S services under this Agreement shall be on the basis of lump
sum. The amount of the lump sum is Twelve Thousand Two Hundred Ninety -Five Dollars
($12,295.00) plus a 10% contingency of One Thousand Two Hundred Thirty Dollars ($1,230.00)
for a total of Thirteen Thousand Five Hundred Twenty -Five Dollars ($13,525.00).
The contingency shall only be authorized upon written approval of the OWNER's Project
Manager. No additional funding will be available as part of this Agreement. Additional costs are
subject to approval by the OWNER's City Council.
Agreement for Professional Services 1 3/2025
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SECTION V. PERIOD OF SERVICE
Upon receipt of written authorization to proceed, ENGINEER shall perform the services within
the time period(s) described in Exhibit A. Any extension of the completion date shall be only
with written approval of the OWNER's Project Manager.
Unless otherwise stated in this Agreement, the rates of compensation for ENGINEER'S services
have been agreed to in anticipation of the orderly and continuous progress of the project through
completion. If any specified dates for the completion of ENGINEER'S services are exceeded
through no fault of the ENGINEER, the time for performance of those services shall be
automatically extended for a period which may be reasonably required for their completion and
all rates, measures and amounts of ENGINEER'S compensation shall be equitably adjusted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first written above.
CITY OF WATERLOO, IOWA
"OWNER"
BY: 5Signed by:
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393E8397B3D3421...
NAME: Dave Boesen
TITLE: Mayor
ADDRESS: 715 Mulberry Street
Waterloo, IA 50703
HDR ENGINEERING, INC.
"ENGINEER"
.APLPP Ct u t
BY:
NAME: Ann Williams, PE
TITLE: Sr. Vice President
ADDRESS: 1917 S 67th Street
Omaha, NE 68106
Agreement for Professional Services 2 3/2025
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EXHIBIT A
SCOPE OF SERVICES
Project Understanding and Objective
This proposal has been prepared by HDR Engineering, Inc. (Consultant) to provide partial
and limited Project Development Services (Services) for the Ridgeway Avenue &
Hammond Avenue Roundabout and Hammond Avenue Sidewalk project.
The project consists of the following two features:
1. Roundabout: Reconstruction of the existing Ridgeway Ave and Hammond Ave
intersection from stop controlled to a modern roundabout.
2. Sidewalk: Construction of approximately 4,000 feet of sidewalk from the
aforementioned roundabout, along Hammond Ave, south to the San Marnan
Drive frontage road.
City of Waterloo (Owner) has already developed a conceptual design and traffic study to
support the grant applications that have been awarded for this project.
The Scope of Services to be performed by the Consultant shall include the following
Tasks:
TASK 1 CONTRACT MANAGEMENT
1.1. PROJECT MANAGEMENT
The Consultant shall manage and perform the tasks to produce project
deliverables in a timely manner, acceptable by Iowa DOT, and shall include
progress reports as needed.
1.2. QUALITY CONTROL AND MANAGEMENT
The Consultant shall designate responsibility for implementation and quality
control oversight for project deliverables. Designated quality control management
shall oversee the individual quality reviews are completed in adherence to the
project's Quality Management Plan (QMP).
1.3. COORDINATION MEETINGS
The Consultant shall meet with the Owner or its designated representative to
review progress and to discuss specific elements of the project deliverables.
The following meetings are included with this scope of services:
1) Kickoff Meeting (virtual)
2) Deliverable Review Meeting (virtual)
Deliverables for Task 1:
1) Meeting agendas and minutes
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2) Monthly progress reports and invoicing.
Key Understandings and Assumptions for Task 1:
1) All deliverables for this task will be submitted to the Owner electronically in Microsoft
Office or Adobe PDF file format.
TASK 2 ESTABLISH DESIGN CRITERIA
The Consultant shall prepare design criteria to be used in developing preliminary plans
and used for the completion of Iowa DOT Form 517001 (Concept Statement). With the
project limits being within the sole jurisdiction of the City of Waterloo and to meet the Iowa
DOT design criteria for a Federal -aid project, the following documents will be referenced:
1) Iowa DOT Federal -aid Project Development Guide for Local Public Agencies
2) Iowa DOT Instructional Memorandum (I.M.) 3.020 Concept Statement Instructions
3) Iowa DOT Design Manual, Chapter 6 for Geometric Design and Chapter 12 for
Pedestrian and Bicycle Facilities
4) 2010 ADA Standards for Accessible Design (ADAAG) with 2014 supplement and
correction; 2023 Accessibility Guidelines for Pedestrian Facilities in the Public Right -
of -Way (PROWAG)
A summary of design criteria will be established using the manuals and reference
documents listed above. Criteria will be used to develop the Concept Statement form in
collaboration with desktop environmental reviews under Task 4.
Deliverables for Task 2:
1) Prepare and submit the Concept Statement to Iowa DOT through TPMS. This includes
the checklist of required submittal items as indicated on the last page of the Concept
Statement.
TASK 3 OPINION OF PROBABLE CONSTRUCTION COST
Review and update the conceptual opinion of probable construction cost (OPCC) as
prepared by the Owner. The conceptual OPCC will be based on representative major
project elements based on recent bid information and will include appropriate
contingencies and escalation factors. General quantity takeoffs will be used for the
conceptual OPCC which will be incorporated into the Concept Statement prepared in
Task 2.
Deliverables for Task 3:
1) Conceptual OPCC in PDF format
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TASK 4 DESKTOP ENVIRONMENTAL REVIEW
4.1. ENVIRONMENTAL CONSTRAINTS MAPPING
Environmental constraints will be identified and considered within the developed
project concept. Consultant will identify and review databases for potential
environmental constraints such as the following:
1) Wetlands and other waters of the U.S.
2) Floodplains
3) Threatened and Endangered Species
4) Properties or sites listed in the National Register of Historic Places (NRHP)
5) Section 4(f) resources (Parks, Wildlife Refuges, etc)
6) Airports
7) Leaking underground storage tank sites and other contaminated sites.
Consultant will prepare an environmental constraints map based on aerial and
desktop data analysis (no environmental field review is planned) for consideration
of preliminary constraints associated with the design concept.
4.2. IOWA DOT FORM COMPLETION
Per Iowa DOT's Federal -aid Project Development Guide, Consultant
environmental staff will complete blocks 9 through 21 of Iowa DOT Form 517001
(Concept Statement), with Consultant engineering staff completing the remaining
blocks (See Task 2).
Deliverables for Task 4:
1) Environmental Constraints Map
2) Iowa DOT Form 517001 (blocks 9-21)
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SCHEDULE
The Scope of Services shall be completed in accordance with the following schedule
unless modified by mutual agreement or by factors beyond the control of the Consultant.
Contract Approval — Notice to Proceed
TARGET DATES
June 1, 2026
Kickoff Meeting (within 2 weeks from NTP)
Early June, 2026
Deliver Concept Statement
Contract End
FEE SUMMARY
Base Contract (Tasks 1 through 4)
Total Hours = 78
Fee = $12,295.00 (Lump Sum)
Contingency = $1,230.00
Total = $13,525.00
July 3, 2026
July 17, 2026
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EXHIBIT B
TERMS AND CONDITIONS
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HDR Engineering, Inc. Terms and Conditions
for Professional Services
1. STANDARD OF PERFORMANCE
The standard of care for all professional engineering, consulting and
related services performed or furnished by ENGINEER and its
employees under this Agreement will be the care and skill ordinarily
used by members of ENGINEER's profession practicing under the
same or similar circumstances at the same time and in the same
locality. ENGINEER makes no warranties, express or implied, under
this Agreement or otherwise, in connection with ENGINEER's
services.
2. INSURANCE/INDEMNITY
ENGINEER agrees to procure and maintain, at its expense, Workers'
Compensation insurance as required by statute; Employer's Liability
of $250,000; Automobile Liability insurance of $1,000,000 combined
single limit for bodily injury and property damage covering all
vehicles, including hired vehicles, owned and non -owned vehicles;
Commercial General Liability insurance of $1,000,000 combined
single limit for personal injury and property damage; and Professional
Liability insurance of $1,000,000 per claim for protection against
claims arising out of the performance of services under this
Agreement caused by negligent acts, errors, or omissions for which
ENGINEER is legally liable. If flying an Unmanned Aerial System
(UAS or drone), ENGINEER will procure and maintain aircraft
unmanned aerial systems insurance of $1,000,000 per occurrence.
OWNER shall be made an additional insured on Commercial
General and Automobile Liability insurance policies and certificates
of insurance will be furnished to the OWNER. ENGINEER agrees to
indemnify OWNER for third party personal injury and property
damage claims to the extent caused by ENGINEER's negligent acts,
errors or omissions. However, neither Party to this Agreement shall
be liable to the other Party for any special, incidental, indirect, or
consequential damages (including but not limited to loss of use or
opportunity; loss of good will; cost of substitute facilities, goods, or
services; cost of capital; and/or fines or penalties), loss of profits or
revenue arising out of, resulting from, or in any way related to the
Project or the Agreement from any cause or causes, including but
not limited to any such damages caused by the negligence, errors
or omissions, strict liability or breach of contract. The employees of
both parties are intended third party beneficiaries of this waiver of
consequential damages.
3. OPINIONS OF PROBABLE COST
Any opinions of probable project cost or probable construction cost
provided by ENGINEER are made on the basis of information
available to ENGINEER and on the basis of ENGINEER's
experience and qualifications, and represents its judgment as an
experienced and qualified professional engineer. However, since
ENGINEER has no control over the cost of labor, materials,
equipment or services furnished by others, or over the contractor(s')
methods of determining prices, or over competitive bidding or market
conditions, ENGINEER does not guarantee that proposals, bids or
actual project or construction cost will not vary from opinions of
probable cost ENGINEER prepares.
4. CONSTRUCTION PROCEDURES
ENGINEER's observation or monitoring portions of the work
performed under construction contracts shall not relieve the
contractor from its responsibility for performing work in accordance
with applicable contract documents. ENGINEER shall not control or
have charge of, and shall not be responsible for, construction means,
methods, techniques, sequences, procedures of construction, health
or safety programs or precautions connected with the work and shall
not manage, supervise, control or have charge of construction.
ENGINEER shall not be responsible for the acts or omissions of the
contractor or other parties on the project. ENGINEER shall be
entitled to review all construction contract documents and to require
that no provisions extend the duties or liabilities of ENGINEER
beyond those set forth in this Agreement. OWNER agrees to include
ENGINEER as an indemnified party in OWNER's construction
contracts for the work, which shall protect ENGINEER to the same
degree as OWNER. Further, OWNER agrees that ENGINEER shall
be listed as an additional insured under the construction contractor's
liability insurance policies.
5. CONTROLLING LAW
This Agreement is to be governed by the law of the state where
ENGINEER's services are performed.
6. SERVICES AND INFORMATION
OWNER will provide all criteria and information pertaining to
OWNER's requirements for the project, including design objectives
and constraints, space, capacity and performance requirements,
flexibility and expandability, and any budgetary limitations. OWNER
will also provide copies of any OWNER -furnished Standard Details,
Standard Specifications, or Standard Bidding Documents which are
to be incorporated into the project.
OWNER will furnish the services of soils/geotechnical engineers or
other consultants that include reports and appropriate professional
recommendations when such services are deemed necessary by
ENGINEER. The OWNER agrees to bear full responsibility for the
technical accuracy and content of OWNER -furnished documents and
services.
In performing professional engineering and related services
hereunder, it is understood by OWNER that ENGINEER is not
engaged in rendering any type of legal, insurance or accounting
services, opinions or advice. Further, it is the OWNER's sole
responsibility to obtain the advice of an attorney, insurance counselor
or accountant to protect the OWNER's legal and financial interests.
To that end, the OWNER agrees that OWNER or the OWNER's
representative will examine all studies, reports, sketches, drawings,
specifications, proposals and other documents, opinions or advice
prepared or provided by ENGINEER, and will obtain the advice of an
attorney, insurance counselor or other consultant as the OWNER
deems necessary to protect the OWNER's interests before OWNER
takes action or forebears to take action based upon or relying upon
the services provided by ENGINEER.
7. SUCCESSORS, ASSIGNS AND BENEFICIARIES
OWNER and ENGINEER, respectively, bind themselves, their
partners, successors, assigns, and legal representatives to the
covenants of this Agreement. Neither OWNER nor ENGINEER will
assign, sublet, or transfer any interest in this Agreement or claims
arising therefrom without the written consent of the other. No third
party beneficiaries are intended under this Agreement.
8. RE -USE OF DOCUMENTS
All documents, including all reports, drawings, specifications,
computer software or other items prepared or furnished by
ENGINEER pursuant to this Agreement, will be owned by the
OWNER. The Engineer will retain intellectual property rights to any
innovative work performed as part of the Agreement, None of the
documents are intended or represented to be suitable for reuse by
OWNER or others on extensions of the project or on any other
project. Any reuse without written verification or adaptation by
ENGINEER for the specific purpose intended will be at OWNER's
sole risk and without liability or legal exposure to ENGINEER, and
OWNER will defend, indemnify and hold harmless ENGINEER from
all claims, damages, losses and expenses, including attomey's fees,
arising or resulting therefrom. Any such verification or adaptation will
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entitle ENGINEER to further compensation at rates to be agreed
upon by OWNER and ENGINEER.
9. TERMINATION OF AGREEMENT
OWNER or ENGINEER may terminate the Agreement, in whole or in
part, by giving seven (7) days written notice to the other party.
Where the method of payment is "lump sum," or cost reimbursement,
the final invoice will include all services and expenses associated
with the project up to the effective date of termination. An equitable
adjustment shall also be made to provide for termination settlement
costs ENGINEER incurs as a result of commitments that had
become firm before termination, and for a reasonable profit for
services performed.
10. SEVERABILITY
If any provision of this agreement is held invalid or unenforceable,
the remaining provisions shall be valid and binding upon the parties.
One or more waivers by either party of any provision, term or
condition shall not be construed by the other party as a waiver of
any subsequent breach of the same provision, term or condition.
11. INVOICES
ENGINEER will submit monthly invoices for services rendered and
OWNER will make payments to ENGINEER within thirty (30) days
of OWNER's receipt of ENGINEER's invoice.
ENGINEER will retain receipts for reimbursable expenses in general
accordance with Internal Revenue Service rules pertaining to the
support of expenditures for income tax purposes. Receipts will be
available for inspection by OWNER's auditors upon request.
If OWNER disputes any items in ENGINEER's invoice for any
reason, including the lack of supporting documentation, OWNER
may temporarily delete the disputed item and pay the remaining
amount of the invoice. OWNER will promptly notify ENGINEER of
the dispute and request clarification and/or correction. After any
dispute has been settled, ENGINEER will include the disputed item
on a subsequent, regularly scheduled invoice, or on a special
invoice for the disputed item only.
OWNER recognizes that late payment of invoices results in extra
expenses for ENGINEER. ENGINEER retains the right to assess
OWNER interest at the rate of one percent (1 %) per month, but not
to exceed the maximum rate allowed by law, on invoices which are
not paid within thirty (30) days from the date OWNER receives
ENGINEER's invoice. In the event undisputed portions of
ENGINEER's invoices are not paid when due, ENGINEER also
reserves the right, after seven (7) days prior written notice, to
suspend the performance of its services under this Agreement until
all past due amounts have been paid in full.
12. CHANGES
The parties agree that no change or modification to this Agreement,
or any attachments hereto, shall have any force or effect unless the
change is reduced to writing, dated, and made part of this
Agreement. The execution of the change shall be authorized and
signed in the same manner as this Agreement. Adjustments in the
period of services and in compensation shall be in accordance with
applicable paragraphs and sections of this Agreement. Any
proposed fees by ENGINEER are estimates to perform the services
required to complete the project as ENGINEER understands it to be
defined. For those projects involving conceptual or process
development services, activities often are not fully definable in the
initial planning. In any event, as the project progresses, the facts
developed may dictate a change in the services to be performed,
which may alter the scope. ENGINEER will inform OWNER of such
situations so that changes in scope and adjustments to the time of
performance and compensation can be made as required. If such
change, additional services, or suspension of services results in an
increase or decrease in the cost of or time required for performance
of the services, an equitable adjustment shall be made, and the
Agreement modified accordingly.
13. CONTROLLING AGREEMENT
These Terms and Conditions shall take precedence over any
inconsistent or contradictory provisions contained in any proposal,
contract, purchase order, requisition, notice -to -proceed, or like
document.
14. EQUAL EMPLOYMENT AND NONDISCRIMINATION
In connection with the services under this Agreement, ENGINEER
agrees to comply with the applicable provisions of federal and state
Equal Employment Opportunity for individuals based on color,
religion, sex, or national origin, or disabled veteran, recently
separated veteran, other protected veteran and armed forces
service medal veteran status, disabilities under provisions of
executive order 11246, and other employment, statutes and
regulations, as stated in Title 41 Part 60 of the Code of Federal
Regulations § 60-1.4 (a-f), § 60-300.5 (a-e), § 60-741 (a-e).
15. HAZARDOUS MATERIALS
OWNER represents to ENGINEER that, to the best of its
knowledge, no hazardous materials are present at the project site.
However, in the event hazardous materials are known to be
present, OWNER represents that to the best of its knowledge it
has disclosed to ENGINEER the existence of all such hazardous
materials, including but not limited to asbestos, PCB's, petroleum,
hazardous waste, or radioactive material located at or near the
project site, including type, quantity and location of such
hazardous materials. It is acknowledged by both parties that
ENGINEER's scope of services do not include services related in
any way to hazardous materials. In the event ENGINEER or any
other party encounters undisclosed hazardous materials,
ENGINEER shall have the obligation to notify OWNER and, to the
extent required by law or regulation, the appropriate governmental
officials, and ENGINEER may, at its option and without liability for
delay, consequential or any other damages to OWNER, suspend
performance of services on that portion of the project affected by
hazardous materials until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the hazardous materials;
and (ii) warrants that the project site is in full compliance with all
applicable laws and regulations. OWNER acknowledges that
ENGINEER is performing professional services for OWNER and
that ENGINEER is not and shall not be required to become an
"arranger," "operator," "generator," or "transporter" of hazardous
materials, as defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1990 (CERCLA),
which are or may be encountered at or near the project site in
connection with ENGINEER's services under this Agreement. If
ENGINEER's services hereunder cannot be performed because of
the existence of hazardous materials, ENGINEER shall be entitled
to terminate this Agreement for cause on 30 days written notice.
To the fullest extent permitted by law, OWNER shall indemnify
and hold harmless ENGINEER, its officers, directors, partners,
employees, and subconsultants from and against all costs, losses,
and damages (including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals, and all
court or arbitration or other dispute resolution costs) caused by,
arising out of or resulting from hazardous materials, provided that
(i) any such cost, loss, or damage is attributable to bodily injury,
sickness, disease, or death, or injury to or destruction of tangible
property (other than completed Work), including the loss of use
resulting therefrom, and (ii) nothing in this paragraph shall obligate
OWNER to indemnify any individual or entity from and against the
consequences of that individual's or entity's sole negligence or
willful misconduct.
16. EXECUTION
This Agreement, including the exhibits and schedules made part
hereof, constitute the entire Agreement between ENGINEER and
OWNER, supersedes and controls over all prior written or oral
understandings. This Agreement may be amended, supplemented
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or modified only by a written instrument duly executed by the
parties.
17. ALLOCATION OF RISK
OWNER AND ENGINEER HAVE EVALUATED THE RISKS AND
REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING
ENGINEER'S FEE RELATIVE TO THE RISKS ASSUMED, AND
AGREE TO ALLOCATE CERTAIN OF THE RISKS, SO, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE TOTAL
AGGREGATE LIABILITY OF ENGINEER (AND ITS RELATED
CORPORATIONS, SUBCONSULTANTS AND EMPLOYEES) TO
OWNER AND THIRD PARTIES GRANTED RELIANCE IS
LIMITED TO THE LESSER OF $1,000,000 OR ITS FEE, FOR ANY
AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR
EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES)
ARISING OUT OF ENGINEER'S SERVICES OR THIS
AGREEMENT REGARDLESS OF CAUSE(S) OR THE THEORY
OF LIABILITY, INCLUDING NEGLIGENCE, INDEMNITY, OR
OTHER RECOVERY. ENGINEER'S AND SUBCONSULTANTS'
EMPLOYEES ARE INTENDED THIRD PARTY BENEFICIARIES
OF THIS ALLOCATION OF RISK.
18. LITIGATION SUPPORT
In the event ENGINEER is required to respond to a subpoena,
government inquiry or other legal process related to the services in
connection with a legal or dispute resolution proceeding to which
ENGINEER is not a party, OWNER shall reimburse ENGINEER for
reasonable costs in responding and compensate ENGINEER at its
then standard rates for reasonable time incurred in gathering
information and documents and attending depositions, hearings,
and trial.
19. NO THIRD PARTY BENEFICIARIES
Except as otherwise provided in this Agreement, no third party
beneficiaries are intended under this Agreement. In the event a
reliance letter or certification is required under the scope of services,
the parties agree to use a form that is mutually acceptable to both
parties.
20. UTILITY LOCATION
If underground sampling/testing is to be performed, a local utility
locating service shall be contacted to make arrangements for all
utilities to determine the location of underground utilities. In addition,
OWNER shall notify ENGINEER of the presence and location of any
underground utilities located on the OWNER's property which are not
the responsibility of private/public utilities. ENGINEER shall take
reasonable precautions to avoid damaging underground utilities that
are properly marked. The OWNER agrees to waive any claim against
ENGINEER and will indemnify and hold ENGINEER harmless from
any claim of liability, injury or loss caused by or allegedly caused by
ENGINEER's damaging of underground utilities that are not properly
marked or are not called to ENGINEER's attention prior to beginning
the underground sampling/testing.
21. UNMANNED AERIAL SYSTEMS
If operating UAS, ENGINEER will obtain all permits or exemptions
required by law to operate any UAS included in the services.
ENGINEER's operators have completed the training, certifications
and licensure as required by the applicable jurisdiction in which the
UAS will be operated. OWNER will obtain any necessary permissions
for ENGINEER to operate over private property, and assist, as
necessary, with all other necessary permissions for operations.
22. OPERATIONAL TECHNOLOGY SYSTEMS
OWNER agrees that the effectiveness of operational technology
systems and features designed, recommended or assessed by
ENGINEER (collectively "OT Systems") are dependent upon
OWNER's continued operation and maintenance of the OT Systems
in accordance with all standards, best practices, laws, and regulations
that govern the operation and maintenance of the OT Systems.
OWNER shall be solely responsible for operating and maintaining the
OT Systems in accordance with applicable laws, regulations, and
industry standards (e.g. ISA, NIST, etc.) and best practices, which
generally include but are not limited to, cyber security policies and
procedures, documentation and training requirements, continuous
monitoring of assets for tampering and intrusion, periodic evaluation
for asset vulnerabilities, implementation and update of appropriate
technical, physical, and operational standards, and offline testing of all
software/firmware patches/updates prior to placing updates into
production. Additionally, OWNER recognizes and agrees that OT
Systems are subject to internal and external breach, compromise, and
similar incidents. Security features designed, recommended or
assessed by ENGINEER are intended to reduce the likelihood that OT
Systems will be compromised by such incidents. However,
ENGINEER does not guarantee that OWNER's OT Systems are
impenetrable and OWNER agrees to waive any claims against
ENGINEER resulting from any such incidents that relate to or affect
OWNER's OT Systems.
23. FORCE MAJEURE
ENGINEER shall not be responsible for delays caused by factors
beyond ENGINEER's reasonable control, including but not limited to
delays because of strikes, lockouts, work slowdowns or stoppages,
government ordered industry shutdowns, power or server outages,
acts of nature, widespread infectious disease outbreaks (including,
but not limited to epidemics and pandemics), failure of any
governmental or other regulatory authority to act in a timely manner,
failure of the OWNER to furnish timely information or approve or
disapprove of ENGINEER's services or work product, or delays
caused by faulty performance by the OWNER's or by contractors of
any level or any other events or circumstances not within the
reasonable control of the party affected, whether similar or dissimilar
to any of the foregoing. When such delays beyond ENGINEER's
reasonable control occur, the OWNER agrees that ENGINEER shall
not be responsible for damages, nor shall ENGINEER be deemed in
default of this Agreement, and the parties will negotiate an equitable
adjustment to ENGINEER's schedule and/or compensation if
impacted by the force majeure event or condition.
24. EMPLOYEE IMMUNITY
The parties to this Agreement acknowledge that an individual
employee or agent may not be held individually liable for negligence
with regard to services provided under this Agreement. To the
maximum extent permitted by law, the parties intend i) that this
limitation on the liability of employees and agents shall include
directors, officers, employees, agents and representatives of each
party and of any entity for whom a party is legally responsible, and ii)
that any such employee or agent identified by name in this Agreement
shall not be deemed a party.
Terms & Conditions for Professional Services 3 (5/2023)