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Item 8CAGENDA ITEM k 8C NOVEMBER 13, 2007 CITY OF ATLANTIC BEACH CITY COMMISSION MEETING STAFF REPORT AGENDA ITEM: Wastewater and TMDL Compliance Program RFP No. 07-04 Contract for Phase I Engineering SUBMITTED BY: Donna Kaluzniak, Utility Directo DATE: November 5, 2007 BACKGROUND: The Department of Environmental Protection will be creating more stringent requirements for the City's wastewater treatment plants due to the Total Maximum Daily Load (TMDL) nitrogen limits. In September, the City Commission designated HDR as the City's Wastewater and TMDL Compliance Program Engineer and authorized staff to conduct price negotiations. This engineer will work with the City through the entire TMDL process in order to provide continuity and avoid engineering inconsistencies. Projects may include: ^ Amore detailed analysis of the most cost effective way to meet the TMDL limits ^ Design of a reclaimed water system ^ Detailed design for upgrades to Wastewater Plant #1 ^ Possible upgrades and/or rerouting of flows from Wastewater Plant #2 Staff conducted detailed and extensive negotiation with HDR to obtain the best price for Phase I of the project. This phase includes: ^ Preliminary engineering to determine the most cost effective way to meet the TMDL and ^ Design, permitting and construction services for a Reclaimed Water System for Selva Marina Country Club. After negotiation, the costs for the proposed projects are: ^ Preliminary engineering, to include a reuse optimization study, analysis of upgrades at Wastewater Plant Nos. 1 and 2, hydraulic model of force mains, analysis of re-piping all or part of the flow from Wastewater Plant No. 2 to Wastewater Plant No. 1, comparison of costs to send flow from WW2 to JEA, and investigation of funding alternatives. $177,790 ^ Design of Reclaimed Plant, Reuse Main, Permitting, Bidding and Construction Services. $150,276 Total contract cost - $328,066 AGENDA ITEM # 8C NOVEMBER I3, 2007 Note that work on the Reclaimed Plant Design will not be started until the City has an agreement with the Selva Marina Country Club. Once the agreement with Selva Marina is approved, the City will begin work on the project quickly. BUDGET: A total of $2.33 million is budgeted in the Sewer Fund for TMDL engineering, Reclaimed design/construction and force main modeling under account numbers 410-5508-535-6300 and 410-5506-535-3100. RECOMMENDATION: Award a contract for Phase I of the Wastewater and TMDL Compliance Program in the amount of $328,066 and authorize the City Manager to sign the contract. ATTACHMENTS: 1. Scope of Services for Phase I of the TMDL Compliance Program 2. Multiple Projects Agreement REVIEWED BY CITY MANAGER: ~/ f AGENDA ITEM # 8C NOVEMBER 13, 2007 Task Order No 1 Scope of Services TMDL Compliance Program Buccaneer & Atlantic Beach Wastewater Treatment Facilities City of Atlantic Beach 11 /1 /07 1.0 SCOPE OF SERVICES 1.1 Background/Purpose All wastewater treatment facilities along the Lower St. Johns River Basin (LSJRB) will be required to improve the water quality along the LSJRB. This is driven by the Total Maximum Daily Load (TMDL) for municipalities as well as industries along the river that have discharges regulated under the National Pollutant Discharge Elimination System (NPDES). The City of Atlantic Beach will be required to reduce its nutrient loading on the St Johns River as determined by the Total Maximum Daily Limit (TMDL) being established by FDEP. The reduction can be accomplished through additional treatment or reuse of the effluent through bulk users such as golf courses, parks and/or smaller users like residential homeowners. The purpose of this study is to identify potential end users (customers), methods to deliver the resource, treatment levels required, options for providing treatment and the capital and operation and maintenance costs over the life of the improvements. 1.2 Scope Description The implementation of the TMDL Compliance Program will be accomplished in two or more phases. Each phase will be broken into various work tasks. The two phases identified at this time are detailed below: • PHASE I -TMDL COMPLIANCE PROGRAM -PLANNING & PRELIMINARY ENGINEERING REPORT AND DESIGN • PHASE II -TMDL COMPLIANCE PROGRAM -DESIGN/PERMITTING; BIDDING PHASE ASSISTANCE & CONSTRUCTION ADMINSTRATIVE SERVICES Only the costs for Phase I work will be provided at this time. Once decisions are made with respect to the Preliminary engineering evaluation, Phase II portion will be initiated. Phase I work will include the design and construction of the reuse facilities required to serve the Selva Marina Country Course (SMCC) and an assessment of the options to meet TMDL at the City's two Wastewater Treatment Facilities (WWTFs). The primary focus will be the evaluation of implementation of, a citywide reuse optimization study in addition to reuse at the SMCC, options for reconfiguring flows between the City's two WWTFs and options for nutrient AGENDA ITEM # 8C NOVEMBER I3, 2007 removal at the city's two WWTF. The Phase I work will produce options, costs and recommendations for TDML Compliance at the City. The Phase II work, when authorized, will include the actual implementation of the recommendations of the Phase I TMDL Compliance Program. The work would include planning, permitting, design, bidding assistance and construction administrative services associated with capital improvement projects to construct reuse facilities, flow reconfiguration between WWTFs, nutrient removal upgrades for one or both city WWTFs or combination of both reuse and WWTF upgrades. The scope will be more fully defined once Phas1 is completed. In addition to the defined services for this scope outlined below, the Team will provide monthly status meetings with the COAB Staff conducted during normal working hours: 1.3 Phase I -TMDL Compliance -Planning & Preliminary Engineering Report In order to fully evaluate all components of the TMDL Compliance Program, the following scope of work items are proposed for Phase I services and are proposed on a task basis. Task 1 -Preliminary Evaluation, Design and Construction Administration Assistance for Reuse Treatment Components for the Selva Marina Country Club (SMCC) The HDR team understands that the City wishes to move forward with the reuse components necessary to provide reuse to the SMCC. We will prepare a preliminary engineer's report, design and provide assistance with construction administration by performing the following work items. 1. Coordinate with the developer's engineer concerning the SMCC improvements to the SMCC and their hydrologic water balance to establish the quantity of reuse required for the upgrades to the SMCC. Determine average, peaks and amount of onsite storage and storage methods. 2. Identify level of responsibilities and costs to be shared between COAB and SMCC. 3. Develop a conceptual plan for reuse treatment facilities at the COAB WWTF. 4. Prepare conceptual construction budgets and life cycle costs associated with reuse treatment and transmission and shared economic impact. 5. Prepare preliminary engineer's report describing the work effort performed in items I through 5 and the findings. 6. Once the conceptual plan and report are approved, The Team will proceed with designing the improvements which will at this point in time include a filtration system, yard piping, electrical, I&C, reuse transmission main modifications, flow meter and discharge structure at the golf course. It is assumed that storage will be provided by the golf course pond system. It also assumed that geotechnical and surveying will be provided by HDR using Subcontracts. 7. Conduct 30%, 60% and 100% review with staff. AGENDA ITEM # 8C NOVEMBER 13, 2007 8. Prepare and submit FDEP permit applications and provide responses to two RAI's. 9. Provide assistance with construction administration which will include: assistance with advertising, issuance of addendums, bid review and recommendation of award, shop drawing review and approval. Task 2 -Reuse Optimization Report to Evaluate Citywide Reuse Program The HDR team will investigate potential reuse customers and their receptiveness to receiving effluent reuse by providing the following services 1. The Team will provide a thorough review of the 2006 Master Plan Report, the previous reuse feasibility study prepared for the City by CDM during the 2001 FDEP Operating Permit Renewal for the Atlantic Beach WWTP and other available documents, i.e. as-built information, etc. 2. The Team will identify and establish a potential list of reuse customers throughout Atlantic Beach. At a minimum the following site shall be considered a. Mayport Naval base golf course b. Hanna Park c. Fleet Landing d. Russell Park e. Roadway Landscape irrigation on Mayport Rd. and Selva Marina Drive - f. New or planned developments The Team will make estimates of potential reuse quantities by customer for the purpose of estimating reduction inflow and total nitrogen removal from the discharge. 3. The Team will make an assessment to the amount of effluent that can be used at each site; providing a total anticipated irrigation rate. 4. The team will present methodologies needed to provide services to each potential customer. 5. The team will assess what additional treatment levels and capacities if any will be needed to meet potential demands. 6. Estimated project and life cycle costs will be developed. These costs will be used to determine if the project required to serve a potential reuse customer is viable. If not, it will be dropped from consideration. It is possible that the project costs alone will disqualify the potential end user from further consideration. 7. Reduction of nitrogen loading to the river will be calculated based on historical nitrogen discharges utilized by FDEP in their modeling 8. The Team will conduct up to 7 -1.0 hour meetings for each potential reuse site. These meetings will be used to gather information, initiate discussions as to the willingness of the potential user, and their expectations. Task 3 -Preliminary Evaluation & Assessment of Wastewater Upgrades at the Atlantic Beach WWTP to Meet TMDL The HDR team will perform the following scope of services: AGENDA ITEM # 8C NOVEMBER I3, 2007 1. Evaluation of Projected Wastewater Flow_ This task would further evaluate the projected flows and timing of the required expansion or upgrade. The final assessment would include alternatives for phasing of the expansion or upgrade over a period of years to minimize capital costs. 2. Develop Plan for Revised Effluent Disposal -The City's AB WWTF current effluent disposal method is a surface water discharge. Based on the results of the Reuse Study (Task 2), a portion of the WW flow may be utilized for reuse irrigation which would reduce the overall requirement for nutrient removal. This work item would develop an estimate of a potential reduced surface water discharge which would also reduce the amount of wastewater that would be required for more advanced nutrient removal. 3. Evaluate the alternative to upgrade the current WWTF to an Advanced Wastewater Treatment process or Reclaimed Water treatment facility that reduces nutrient or WW flows to the river. The options for COAB WWTF upgrade includes: a. Evaluate the existing process to see operational modifications can be made in the short term to meet TMDL limits. b. Upgrade the WWTF to produce irrigation quality reclaimed water. . c. Upgrade the current WWTF to an Advanced Wastewater Treatment process. d. Upgrade and expand the current WWTF to an Advanced Wastewater Treatment process to treat all or a portion of the wastewater flow from the Buccaneer WWTF e. Combination of any of the above. 4. Development of Opinion of Probable Costs -Based on concepts developed during Phase I, prepare budget construction, operating and life-cycle cost estimates. 5. Prepare Memo of Findings. Task 4 -Preliminary Evaluation & Assessment of Wastewater Upgrades at the Buccaneer WWTP to Meet TMDL The HDR team will provide the following services: 1. Evaluation of Projected Wastewater Flow_ This task would further evaluate the projected flows and timing of the required upgrade. The final assessment would include alternatives for phasing of the upgrade over a period of years to minimize capital costs. 2. Develop Plan for Revised Effluent Disposal -The City's Buccaneer WWTF current effluent disposal method is a surface water discharge. Based on the results of the Reuse Study (Task 2), a portion of the WW flow may be utilized for reuse irrigation which would reduce the overall requirement for nutrient removal. This work item would develop an estimate of a potential reduced surface water discharge which would also reduce the amount of wastewater that would be required for more advanced nutrient removal. 3. Evaluate the alternative to upgrade the current WWTF to an Advanced Wastewater Treatment process or Reclaimed Water treatment facility that reduces nutrient or WW flows to the river. The options for Buccaneer WWTF upgrade includes: a. Evaluate the existing process to see if operational modifications can be made in the short term to meet TMDL limits. AGENDA ITEM # 8C NOVEMBER 13, 2007 b. Upgrade the WWTF to produce irrigation quality reclaimed water. . c. Upgrade the current WWTF to an Advanced Wastewater Treatment process. d. Convert Buccaneer WWTF to a pumping station and pump all raw wastewater to JEA e. Conduct meeting with JEA to discuss Buccaneer WWTP. f. Continue to operate the Buccaneer WWTF as presently operated and divert the treated effluent to JEA g. Convert part or all of the Buccaneer WWTF to a pumping station and pump some or all of the raw wastewater to an expanded COAB WWTP. Work would include an assessment of utilizing the existing force main network to transport flow to COAB WWTF, new construction and/or combination of both. 4. Development of Opinion of Probable Costs -Based on concepts developed during Phase I, prepare budget construction and life cycle cost estimates. Task 5 -Investigate Funding Alternatives for TMDL Compliance Construction Program 1. The HDR Team will investigate potential funding alternatives through various federal and state grant and loan programs. These will include: SJRWMD, FDEP, FDEP -SRF and USDA Rural Development. A recap of each loan program will be provided and an opinion provided as to availability and possibility of funding. Task 6 -Additional meetings beyond the limits of this proposal 1. HDR team will be available for meetings that are not considered a part of this scope of services. These would include city council meetings, public meetings and extra staff meetings. These would be provided at a lump sum price per meeting. 1.4 Owner's responsibilities: 1. Provide copies of all previous reports prepared for the wastewater collection and treatment system and system as-built drawings. Electronic copies would be suitable 2. Provide electronic version of the forcemain hydraulic model to be used in our analysis. 3. Pay all permit application fees 4. Provide space to conduct meetings 5. Attend meetings with potential reuse candidates. 6. Provide guidance with respect to City's position on participation in costs and support of reuse for potential customers. 1.5 Overall Program Assumptions: Based on information and direction provide through the city staff and previous engineer's reports, the following assumptions will apply: 1. The peak design capacity of the effluent filter will be 5.2 MGD. AGENDA ITEM # 8C NOVEMBER 13, 200? 2. Class 1 reliability will not be required since the there is a permitted discharge to the St Johns River. 3. Easements and surveys across the Selva Marina Golf Course will be provided by the Selva Marina Country Club. 4. The existing effluent main will be used to deliver flow to SMCC. 5. The present effluent pumps will be adequate to deliver flow to the SMCC and the St Johns River discharge. 6. The existing chlorine contact chamber is of adequate size to provide the required contact time to achieve high level disinfection. 7. The existing C12 system is of adequate size to provide high level disinfection. 8. Effluent storage is provided by SMCC using their pond system. 1.6 Fees -Phase I Task 1 -Preliminary Evaluation & Assessment of Producing & Delivering Irrigation Quality Reuse for the Selva Marina Country Club Task 2 -Reuse Optimization Report to Evaluate Citywide Reuse Program Task 3 -Preliminary Evaluation & Assessment of Wastewater Upgrades at the Atlantic Beach WWTP to Meet TMDL Task 4 -Preliminary Evaluation & Assessment of Wastewater Upgrades at the Buccaneer WWTP to Meet TMDL Task 5 -Investigate Funding Alternatives for TMDL Compliance Construction Program Task 6 -Additional meetings beyond the limits of this proposal ACCEPTANCE: I hereby accept the above scope and fee for HDR Engineering Inc. Signature Date I hereby accept the above scope and fee for City of Atlantic Beach Signature Date AGENDA ITEM # 8C NOVEMBER 13, 2007 MULTIPLE PROJECT AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made as of this day of 20 ,between City of Atlantic, hereinafter referred to as "OWNER", and HDR Engineering, Inc., hereinafter referred to as "ENGINEER," for engineering services as described in this Agreement. WHEREAS, OWNER desires to retain ENGINEER, a professional engineering firm, to provide professional engineering, consulting and related services ("Services") on one or more projects in which the OWNER is involved; and WHEREAS, ENGINEER desires to provide such services on such projects as may be agreed, from time to time, by the parties; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: SECTION I. PROJECT TASK ORDER 1.1 This Agreement shall apply to as many projects as OWNER and ENGINEER agree will be performed under the terms and conditions of this Agreement. Each project ENGINEER performs for OWNER hereunder shall be designated by a "Task Order." A sample Task Order is attached to this Agreement and marked as Exhibit "A". No Task Order shall be binding or enforceable unless and until it has been properly executed by both OWNER and ENGINEER. Each properly executed Task Order shall become a separate supplemental agreement to this Agreement. 1.2 In resolving potential conflicts between this Agreement and the Task Order pertaining to a specific project, the terms of the Task Order shall control. 1.3 ENGINEER will provide the Scope of Services as set forth in Part 2 of each Task Order. SECTION II. RESPONSIBILITIES OF OWNER In addition to the responsibilities described in paragraph 6 of the attached "HDR Engineering, Inc. Terms and Conditions for Professional Services," OWNER shall have the responsibilities described in Part 3 of each Task Order. Contracts Manual SMOEA - 1 7-2000 AGENDA ITEM # 8C NOVEMBER 13, 2007 SECTION III. COMPENSATION Compensation for ENGINEER's Services shall be in accordance with Part 5 of each Task Order, and in accordance with paragraph 11 of the attached "HDR Engineering, Inc. Terms and Conditions for Professional Services." SECTION IV. TERMS AND CONDITIONS OF ENGINEERING SERVICES The "HDR Engineering, Inc. Terms and Conditions for Professional Services," which are attached hereto, are incorporated into this Agreement by this reference. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. "OWNER" BY: NAME: Mr. James R. Hanson TITLE: City Manager ADDRESS: 800 Seminole Rd. Atlantic Beach, Fl. 32233 HDR ENGINEERING, INC. "ENGINEER" BY: NAME: Mr. Hal Lewis TITLE: Senior Vice President ADDRESS: 200 W. Forsyth St ,Suite 800 Jacksonville, Fl. 32202 Contracts Manual SMOEA - 2 7-2000 AGENDA ITEM # 8C NOVEMBER 13, 2007 EXHIBIT A TASK ORDER This Task Order pertains to an Agreement by and between ("OWNER"), and HDR Engineering, Inc. ("ENGINEER"), dated , 20_, ("the Agreement"). Engineer shall perform services on the project described below as provided herein and in the Agreement. This Task Order shall not be binding until it has been properly signed by both parties. Upon execution, this Task Order shall supplement the Agreement as it pertains to the project described below. TASK ORDER NUMBER: PROJECT NAME: PART 1.0 PART 2.0 PART 3.0 PART 4.0 PART 5.0 PART 6.0 PROJECT DESCRIPTION: SCOPE OF SERVICES TO BE PERFORMED BY ENGINEER ON THE PROJECT: OWNER'S RESPONSIBILITIES: PERIODS OF SERVICE: PAYMENTS TO ENGINEER: OTHER: Contracts Manual SMOEA - 3 7-2000 AGENDA ITEM # 8C NOVEMBER 13, 2007 This Task Order is executed this day of , 20. "OWNER" BY: NAME: TITLE: ADDRESS: ~IDR ENGINEERING, INC. "ENGINEER" BY: NAME: TITLE: ADDRESS: Contracts Manual SMOEA - 4 7-2000 AGENDA ITEM # 8C NOVEMBER 13, 2007 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 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. Upon request, 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 the claims covered by ENGINEER'S insurance. 3. OPINIONS OF PROBABLE COST (COST ESTIMATES) 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 AND ASSIGNS 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. 8. RE-USE OF DOCUMENTS Contracts Manual SMOEA - 5 7-2000 AGENDA ITEM # 8C NOVEMBER 13, 2007 All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by ENGINEER pursuant to this Agreement, are instruments of service with respect to the project. ENGINEER retains ownership of all such documents. OWNER may retain copies of the documents for its information and reference in connection with the project; however, 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 attorney's fees, arising or resulting therefrom. Any such verification or adaptation will 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, if the other party substantially fails to fulfill its obligations under the Agreement through no fault of the terminating 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. Should key individuals of the ENGINEER, i.e. Contract Manager, Lead Project Manger or Process Engineer leave the employment of the ENGINEER or its subconsultants, the OWNER will request the resume and information pertaining to the individual being replaced. The OWNER will agree with the replacement and upon 30 days after the replacement, the Owner shall render an opinion as the suitability of individual. If the individual is not suitable to the Owner, the ENGINEER will have thirty days to replace the individual with someone suitable to the OWNER. Other wise the OWNER may terminate the Agreement. 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 prompt payments in response to ENGINEER's invoices. 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 of the 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, and other employment, statutes and regulations. Contracts Manual SMOEA - 6 7-2000 AGENDA ITEM # 8C NOVEMBER 13, 2007 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 or modified only by a written instrument duly executed by the parties. 17. LIMITATION OF LIABILITY ENGINEER's and its employees' total liability to OWNER for any loss or damage, including but not limited to special and consequential damages arising out of or in connection with the performance of services or any other cause, including ENGINEER's and its employees' professional negligent acts, errors, or omissions, shall not exceed the greater of $50,000 or the total compensation received by ENGINEER hereunder, except as otherwise provided under this Agreement, and OWNER hereby releases and holds harmless ENGINEER and its employees from any liability above such amount. 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. 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. 20. ANNUAL ADJUSTMENT IN HOURLY RATES AND FEES Annual adjustment in rates and fees shall be provided for on the first day of the new year and each calendar year there after. Should an assignment be active at the time the new rates take affect, the assignment shall be completed based on the agreed upon costs. New hourly rates shall not apply to ongoing assignments. The amount of adjustment shall be 5 percent each year. Contracts Manual SMOEA - 7 7-2000