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3.24 Wellfield Study Request for City Council Action DEPARTMENT INFORMATION ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE: Utilities Utility Manager Neidermeier December 13, 2021 PRESENTER(s) REVIEWED BY: ITEM #: Consent City Administrator/Finance Director Flaherty AE2S Engineer Schaefer 3.24 – Wellfield Study STRATEGIC VISION MEETS: THE CITY OF OTSEGO: Is a strong organization that is committed to leading the community through innovative communication. X Has proactively expanded infrastructure to responsibly provide core services. Is committed to delivery of quality emergency service responsive to community needs and expectations in a cost-effective manner. Is a social community with diverse housing, service options, and employment opportunities. Is a distinctive, connected community known for its beauty and natural surroundings. AGENDA ITEM DETAILS RECOMMENDATION: City Staff is recommending City Council approval of the Hydrogeologic (Wellfield) Study and Drinking Water Master Plan Update. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? Yes No BACKGROUND/JUSTIFICATION: The Drinking Water Master Plan was completed in early 2020 with the recommendation to continue developing additional groundwater wells as the source water with confirmation via a future hydrogeologic study of the proposed wellfield area. Meetings with the Minnesota DNR during planning indicated that source water from the Mount Simon aquifer would be available, and the planning proceeded accordingly. In 2021, the Minnesota Legislature passed a ban on new water allocations from the Mount Simon aquifer (Legislative Statute 103G.271 Subd. 4a). The hydrogeologic study has become more important now that the planned water source is not legally accessible, and updates will be needed to the Drinking Water Master Plan to account for the anticipated changes to wellfield production capacity of alternate aquifer(s) and confirmation or modification to the treatment planning based upon the water quality findings. City Attorney Kendall has provided review of the respective agreement with recommendation to proceed. SUPPORTING DOCUMENTS ATTACHED: • Agreement for Professional Services POSSIBLE MOTION PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES: Motion to approve Agreement for Professional Services between the City of Otsego and Advanced Engineering and Environmental Services, LLC (AE2S) in the amount of $89,500. BUDGET INFORMATION FUNDING: BUDGETED: Fund 602 – Sanitary Sewer Utility Yes (2022) E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 1 01/2021 AGREEMENT BETWEEN OWNER AND ENGINEER FOR STUDY AND REPORT PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of ______________________, ________ (“Effective Date”) between City of Otsego, Minnestota ("Owner") and Advanced Engineering and Environmental Services, LLC (AE2S) ("Engineer"). Owner retains Engineer to perform professional services, in connection with the Hydrogeologic Study and Drinking Water Master Plan Update (“Project”). Owner and Engineer further agree as follows: ARTICLE 1 – SERVICES OF ENGINEER 1.01 Scope A. Engineer shall provide, or cause to be provided, the services set forth herein and in Exhibit A. ARTICLE 2 – OWNER’S RESPONSIBILITIES 2.01 General A. Owner shall pay Engineer as set forth in Article 4. B. Owner shall provide Engineer with all criteria and full information as to Owner’s requirements for the Assignment, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any anticipated funding sources and budgetary limitations. C. Owner shall furnish to Engineer all existing studies, reports, and other available data pertinent to the Assignment, obtain or authorize Engineer to obtain or provide additional reports and data as required, and furnish to Engineer such services of others as may be necessary for the performance of Engineer’s services. D. Owner shall arrange for safe access to and make all provisions for Engineer to enter upon public and private property as required for Engineer to perform services under the Agreement. E. Owner shall be responsible for, and Engineer may rely upon, the accuracy and completeness of all requirements, instructions, reports, data, and other information Owner-furnished by Owner to Engineer pursuant to this Agreement. Engineer may use such requirements, instructions, reports, data, and information in performing or furnishing services under this Agreement. E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 2 01/2021 ARTICLE 3 – SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering services as of the Effective Date. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer’s services is impaired, or Engineer’s services are delayed or suspended, then the time for completion of Engineer’s services, and the rates and amounts of Engineer’s compensation, shall be adjusted equitably. ARTICLE 4 – INVOICES AND PAYMENTS 4.01 Invoices A. Preparation and Submittal of Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of this Article. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. B. Obligation to Pay: Owner’s obligation to pay for Engineer’s services under this Agreement is not contingent on Owner’s ability to obtain financing, third-party payments, governmental or regulatory agency approval, permits, final adjudication of lawsuit in which Engineer is not involved, Owner’s successful completion of a project, or any other event. No retainage will be withheld. 4.02 Payments A. Application to Interest and Principal: Payment will be credited first to any interest owed to Engineer and then to principal. B. Failure to Pay: If Owner fails to make payments due Engineer for services and expenses within 30 days after receipt of Engineer’s invoice, then: 1. Engineer will be entitled to interest on all amounts due and payable at the rate of 1.75% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day; and 2. Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner has paid in full all amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension provided that the Engineer’s basis for providing the notice has a good-faith basis. 4.03 Payment for Basic Services (Hourly Rates Plus Reimbursable Expenses) A. Using the procedures set forth in Paragraph 4.01, Owner shall pay Engineer for Basic Services as follows: E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 3 01/2021 1. An amount equal to the cumulative hours charged to the Assignment by each class of Engineer’s employees times standard hourly rates for each applicable billing class for all services performed on the Assignment, plus reimbursable expenses and Engineer’s Consultants’ charges, if any. 2. Engineer’s standard hourly rates are set forth in Exhibit B. 3. The total compensation for services and reimbursable expenses is estimated to be $89,500. 4.04 Payment for Additional Services A. For Additional Services, Owner shall pay Engineer an amount equal to the cumulative hours charged to providing the Additional Services under the Assignment by each class of Engineer’s employees, times standard hourly rates for each applicable billing class; plus reimbursable expenses and Engineer’s Consultants’ charges, if any. Engineer's standard hourly rates and reimbursable expenses schedule are set forth in Exhibit B. 4.05 Disputed Invoices A. If Owner contests an invoice, Owner shall promptly advise Engineer of the specific basis for doing so, may withhold only that portion so contested, and must pay the undisputed portion. ARTICLE 5 – OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. Engineer’s opinions of probable Construction Cost are to be made on the basis of Engineer’s experience and qualifications and represent Engineer’s estimate as an experienced and qualified professional generally familiar with the construction industry. However, because of the limited and preliminary nature of the Assignment, and because Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors’ methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. If Owner requires greater assurance as to probable Construction Cost, Owner must employ an independent cost estimator. 5.02 Opinions of Total Project Costs A. The services, if any, of Engineer with respect to Total Project Costs shall be limited to assisting the Owner in collating the various cost categories which comprise Total Project Costs. Engineer assumes no responsibility for the accuracy of any opinions of Total Project Costs. ARTICLE 6 – GENERAL CONSIDERATIONS 6.01 Standards of Performance A. Standard of Care: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no other warranties, express or implied, under this Agreement or otherwise, in connection with Engineer’s services. E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 4 01/2021 B. Consultants: Engineer may employ such Consultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. C. Reliance on Others: Subject to the standard of care set forth in Paragraph 6.01.A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. D. Engineer shall not be required to sign any documents, no matter by whom requested, that would result in the Engineer having to certify, guarantee, or warrant the existence of conditions whose existence the Engineer cannot ascertain. Owner agrees not to make resolution of any dispute with the Engineer or payment of any amount due to the Engineer in any way contingent upon the Engineer signing any such documents. E. Engineer shall not have any construction-related duties under this Agreement. Engineer shall not at any time supervise, direct, control, or have authority over any contractor's work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety at the Site, nor for any failure of a contractor to comply with Laws and Regulations applicable to such contractor’s furnishing and performing of its work. F. Indepenent Contractor: Owner hereby retains Engineer as an independent contractor upon the terms and conditions set forth in this Agreement. Engineer is not an employee of Owner and is free to contract with other entities as provided herein. Engineer shall be responsible for selecting the means and methods of performing the work. Engineer shall furnish any and all supplies, equipment, and incidentals necessary for Engineer's performance under this Agreement. Owner and Engineer agree that Engineer shall not at any time or in any manner represent that Engineer or any of Engineer's agents or employees are in any manner agents or employees of Owner. Engineer shall be exclusively responsible under this Agreement for Engineer's own FICA payments, workers compensation payments, unemployment compensation payments, withholding amounts, and/or self-employment taxes if any such payments, amounts, or taxes are required to be paid by law or regulation. G. Compliance with Laws and Regulations: In providing services hereunder, Engineer shall abide by all statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. 6.02 Use of Documents A. All completed Documents are the property of the Owner. Owner grants Engineer a royalty-free, non- exclusive, irrevocable, and perpetural license regarding such Documents, whether or not the Assignment or Project is completed. Owner shall not rely, in any way, on any Document unless it is in printed form, signed or sealed by the Engineer or one of its Consultants. B. Either party to this Agreement may rely that data or information set forth on paper (also known as hard copies) that the party receives from the other party by mail, hand delivery, or facsimile, are the items that the other party intended to send. Files in electronic media format of text, data, graphics, or other types that are furnished by one party to the other are furnished only for convenience, not reliance, by the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user’s E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 5 01/2021 sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. If the parties agree to other electronic transmittal procedures, such procedures shall be set forth in an exhibit to this Agreement. C. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise during storage or transmittal, the party receiving electronic files agrees that it will perform acceptance tests or procedures within ten days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any data deficiencies detected within the ten-day acceptance period will be corrected, if possible, by the party delivering the electronic files. D. When transferring documents in electronic media format, the transferring party makes no representations as to long-term compatibility, usability, or readability of such documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the documents’ creator. E. Owner acknowledges: (1) that such Documents are not intended or represented to be suitable for use by Owner unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project or on any other project without written verification or adaptation by Engineer; (2) the Documents are instruments of study and report services only, and are not final design or construction documents, (3) any such use, reuse, alteration, or modification of the Documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner’s sole risk and without liability or legal exposure to Engineer or to Engineer’s Consultants; and (4) Owner shall indemnify and hold harmless Engineer and Engineer’s Consultants from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from any use, reuse, alteration, or modification without written verification, completion, or adaptation by Engineer. 6.03 Insurance A. Engineer shall secure and maintain such insurance as will protect Engineer from claims under the Worker's Compensation Acts, automobile liability, and from claims for bodily injury, death, or property damage which may arise from the performance of services under this Agreement. Such insurance shall be written for amounts not less than: Commercial General Liability $1,000,000 each occurrence/aggregate Automobile Liability $1,000,000 combined single limit Owner shall be named as an additional insured on the general liability policy. B. Engineer shall secure and maintain a professional liability insurance policy. Said policy shall insure payment of damages for legal liability arising out of the performance of professional services for the Owner, in the insured's capacity as Engineer, if such legal liability is caused by a negligent act, error or omission of the insured or any person or organization for which the insured is legally liable. The policy shall provide minimum limits of $1,000,000 with a deductible maximum of $125,000 unless the Owner agrees to a higher deductible. C. Before commencing work the Engineer shall provide Owner a certificate of insurance evidencing the required insurance coverage in a form acceptable to Owner. The certificate shall provide that such insurance cannot be cancelled until thirty (30) days after the Owner has received written notice of the insurer’s intention of cancel this insurance. E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 6 01/2021 6.04 Termination A. Termination for Cause: The obligation to continue performance under this Agreement may be terminated: 1. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the Agreement’s terms through no fault of the terminating party. Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. 2. By Engineer: a. upon seven days written notice if Engineer believes that Engineer is being required by Owner to furnish or perform services contrary to Engineer’s responsibilities as a licensed professional; or b. upon seven days written notice if the Engineer’s services are delayed for more than 90 days for reasons beyond Engineer’s control. c. Engineer shall have no liability to Owner on account of a termination by Engineer under Paragraph 6.04.A.2 if said termination is undertaken in good faith. 3. Notwithstanding the foregoing, this Agreement will not terminate as a result of a substantial failure under Paragraph 6.04.A.1. if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of notice; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. B. Termination for Convenience: Owner may terminate the Agreement for Owner's convenience effective upon the Engineer's receipt of written notice from Owner. C. The terminating party under Paragraphs 6.04.A or 6.04.B may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. D. In the event of any termination under Paragraph 6.04, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished in accordance with this Agreement and all reimbursable expenses incurred through the effective date of termination. 6.05 Controlling Law A. This Agreement is to be governed by the law of the State of Minnesota, without regard to its conflicts of laws principles. In the event of litigation, the exclusive venue shall be in the District Court of the State of Minnesota for Wright County. E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 7 01/2021 6.06 Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 6.06.B the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Subcontractor, Supplier, or other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. Any and all Documents prepared by Engineer, including but not limited to the Report to be prepared pursuant to Exhibit A, are prepared solely for the use and benefit of Owner, unless expressly agreed otherwise by Engineer. 6.07 Dispute Resolution A. Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute, after which, if negotiations are unsuccessful, the parties may exercise their rights at law. 6.08 Environmental Condition of Site A. Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other Constituents of Concern located at or near the Site, including type, quantity, and location. B. Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. C. If Engineer encounters or learns of an undisclosed Constituent of Concern at the Site, then Engineer shall notify (1) Owner and (2) appropriate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. D. It is acknowledged by both parties that Engineer’s scope of services does not include any services related to Constituents of Concern. If Engineer or any other party encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove the E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 8 01/2021 Constituents of Concern; and (2) warrants that the Site is in full compliance with applicable Laws and Regulations. E. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer’s services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2) terminating this Agreement for cause on 30 days notice. F. Owner acknowledges that Engineer is performing professional services for Owner and that Engineer is not and shall not be required to become an "owner" “arranger,” “operator,” “generator,” or “transporter” of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are or may be encountered at or near the Site in connection with Engineer’s activities under this Agreement. 6.09 Indemnification A. Indemnification by Engineer: To the fullest extent permitted by law, Engineer shall indemnify and hold harmless Owner, and Owner’s officers, directors, members, partners, agents, consultants, and employees from reasonable costs, losses, and damages arising out of or relating to the Assignment or Project, provided that any such cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property, including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Engineer or Engineer’s officers, directors, members, partners, agents, employees, or Consultants. B. Intentionally omitted. C. Intentionally omitted. D. Percentage Share of Negligence: To the fullest extent permitted by law, a party’s total liability to the other party and anyone claiming by, through, or under the other party for any cost, loss, or damages caused in part by the negligence of the party and in part by the negligence of the other party or any other negligent entity or individual, shall not exceed the percentage share that the party’s negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. E. Patent Infringement: Engineer shall indemnify and hold harmless Owner, and Owner’s officers, directors, partners, agents, consultants, and employees from and against any and all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court, arbitration, or other dispute resolution costs) arising out of to Engineer’s infringement of any third party’s patent rights relating to Engineer’s services on the Project. F. Copyright: Engineer shall defend actions or claims charging infringement of any copyright or software license by reason of the use or adoption of any software, designs, drawings or specifications supplied by it, and it shall hold harmless the City from loss or damage resulting therefrom. 6.10 Limitation of Engineer’s Liability A. Intentionally omitted. E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 9 01/2021 6.11 Miscellaneous Provisions A. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severability: Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Engineer, which agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. D. Waiver: A party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. Not used. F. Executed in Counterparts: This Agreement may be executed in counterparts, each of which together will constitute one and the same instrument. Delivery of an executed counterpart of this Agreement shall constitute effective delivery of this Agreement. Each party agrees that the delivery of the Agreement by facsimile or electronic mail shall have the same force and effect as delivery of original signature and that each party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of the Agreement by the parties to the same extent that an original signature could be used. ARTICLE 7 – DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) terms (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above, in the exhibits, or in the following provisions: 1. Additional Services – The services to be performed for or furnished to Owner by Engineer in accordance with Part 2 of Exhibit A of this Agreement. 2. Agreement – This written contract for study and report professional services between Owner and Engineer, including all exhibits identified in Paragraph 8.01 and any duly executed amendments. 3. Asbestos – Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 4. Basic Services – The services to be performed for or furnished to Owner by Engineer in accordance with Part 1 of Exhibit A of this Agreement. 5. Constituent of Concern – Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 10 01/2021 Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§1801 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. (“RCRA”); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; and (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 6. Construction Cost – The cost to Owner of the construction of a recommended solution presented in the Report furnished by Engineer under Exhibit A, or of a specific portion of the Project for which Engineer has agreed to provide opinions of cost. Construction Cost includes the cost of construction labor, services, materials, equipment, insurance, and bonding, but does not include costs of services of Engineer or other design professionals and consultants; cost of land or rights- of-way, or compensation for damages to properties; Owner’s costs for legal, accounting, insurance counseling, or auditing services; interest or financing charges incurred in connection with the Project; or the cost of other services to be provided by others to Owner. Construction Cost is one of the items comprising Total Project Costs. 7. Consultants – Individuals or entities having a contract with Engineer to furnish services with respect to this Assignment as Engineer’s independent professional associates and consultants, subcontractors, or vendors. 8. Documents – Data, studies, reports (including the Report referred to in Exhibit A), and other deliverables, whether in printed or electronic media format, provided or furnished by Engineer to Owner pursuant to this Agreement. 9. Effective Date – The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, the date on which this Agreement is signed and delivered by the last of the parties to sign and deliver. 10. Engineer – The individual or entity named as such in this Agreement. 11. Hazardous Waste – The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 12. Laws and Regulations; Laws or Regulations – Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 13. Owner – The individual or entity with which Engineer has entered into this Agreement and for which Engineer's services are to be performed. 14. PCBs – Polychlorinated biphenyls. 15. Petroleum – Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-hazardous waste and crude oils. E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 11 01/2021 16. Project – The total study, design, and construction to be carried out by Owner through its employees, agents, design professionals, consultants, contractors, and others, of which the Assignment is a preliminary part. 17. Radioactive Material – Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 18. Site – Lands or areas where the subject matter of the Assignment or the Project is located. 19. Total Project Costs – The total cost of study, design, and construction of the Project, including Construction Cost and all other Project construction labor, services, materials, equipment, insurance, and bonding costs, allowances for contingencies, and the total costs of services of Engineer and other design professionals and consultants, together with such other Project-related costs that Owner furnishes for inclusion, including but not limited to cost of land, rights-of-way, compensation for damages to properties, Owner’s costs for legal, accounting, insurance counseling, and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner. ARTICLE 8 – EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, Engineer’s Services. B. Exhibit B, Standard Hourly Rates and Reimbursable Expenses Schedule 8.02 Total Agreement A. This Agreement, (together with the exhibits identified above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. 8.03 Designated Representatives A. With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer’s and Owner’s representatives with respect to the Assignment and the responsibilities of Owner under this Agreement. Such an individual shall have authority to transmit instructions, receive information, and render decisions relative to the Assignment on behalf of the respective party whom the individual represents. 8.04 Engineer's Certifications A. Engineer certifies that it has not engaged in corrupt, fraudulent, or coercive practices in competing for or in executing the Agreement. For the purposes of this Paragraph 8.04: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the selection process or in the Agreement execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the selection process or the execution of the Agreement to the detriment of Owner, or (b) to deprive Owner of the benefits of free and open competition; E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 12 01/2021 3. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the selection process or affect the execution of the Agreement. 8.05 Data Practices. The Engineer must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to (1) all data provided by the Owner pursuant to this Agreement, and (2) all data, created, collected, received, stored, used, maintained, or disseminated by the Engineer pursuant to this Agreement. The Engineer is subject to all the provisions of the Minnesota Government Data Practices Act, including but not limited to the civil remedies of Minnesota Statutes Section 13.08, as if it were a government entity. In the event the Engineer receives a formal request to release data pursuant to the Minnesota Government Data Practices Act, the Engineer must immediately notify the Owner. The Owner will give the Engineer instructions concerning the release of the data to the requesting party before the data is released. Engineer agrees to defend, indemnify, and hold the Owner, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from Engineer’s officers’, agents’, owners’, partners’ employees’, volunteers’, assignees’ or subcontractors’ unlawful disclosure and/or use of protected data. The terms of this section shall survive the cancellation or termination of this Agreement. 8.06 Pursuant to Minnesota Statute § 471.25, Subdivision 4a, the Engineer must pay any subcontractor within ten (10) days of the Engineer’s receipt of payment from the Owner for undisputed services provided by the subcontractor. The Engineer must pay interest of one and one-half percent (1½ %) per month or any part of a month to subcontractor on any undisputed amount not paid on time to the subcontractor. The minimum monthly interest penalty payment for an unpaid balance of $100.00 or more is $10.00. For an unpaid balance of less than $100.00, the Engineer shall pay the actual penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the Architect shall be awarded its costs and disbursements, including attorney’s fees, incurred in bringing the action. E-525 Agreement Between Owner and Engineer for Study and Report Professional Services Page 13 01/2021 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: Engineer: By: By: Abbie Browen Title: Title: Operations Manager Date Signed: Date Signed: Address for giving notices: Address for giving notices: Advanced Engineering and Environmental Services, LLC 4050 Garden View Drive, Suite 200 Grand Forks, ND 58201 Designated Representative (Paragraph 8.03.A): Designated Representative (Paragraph 8.03.A): Name: Name: Scott Schaefer, PE Title: Title: Practices Director Phone Number: Phone Number: 763-248-2929 Facsimile Number: Facsimile Number: NA E-Mail Address: E-Mail Address: Scott.Schaefer@ae2s.com 12/08/2021 Exhibit A – Engineer’s Services Agreement Between Owner and Engineer for Study and Report Professional Services Page 1 This is EXHIBIT A, Engineer's Services, referred to in and part of the Agreement between Owner and Engineer for Study and Report Professional Services dated December 8, 2021. Engineer’s Services Article 1 of the Agreement is supplemented to include the following agreement of the parties: Engineer shall provide Basic and Additional Services as set forth below. Project Summary The Drinking Water Master Plan was completed in early 2020 with the recommendation to continue developing additional groundwater wells as the source water with confirmation via a future hydrogeologic study of the proposed wellfield area. Meetings with the Minnesota Department of Natural Resources during planning indicated that source water from the Mount Simon aquifer would be available, and the planning proceeded with planning around the higher production capacity and water quality of Mount Simon wells. In 2021, the Minnesota Legislature passed a ban on new water allocations from the Mount Simon aquifer (Legislative Statute 103G.271 Subd. 4a). The hydrogeologic study has become more important now that the planned water source is not legally accessible, and updates will be needed to the Drinking Water Master Plan to account for the anticipated changes to wellfield production capacity of alternate aquifer(s) and confirmation or modification to the treatment planning based upon the water quality findings. This project will include a hydrogeologic study to assess the aquifers in the area of the City for future well field expansion and an update to the Drinking Water Master Plan to incorporate the findings of the hydrogeologic study. PART 1 – BASIC SERVICES A1.01 Study and Report Phase A. Engineer shall: 1. Project Management a. Oversee the overall study scheduling and budgeting b. Develop hydrogeologic study scope of services, solicit proposals/quotes from qualified hydrogeologic providers, evaluate proposal responses, and make recommendation c. Coordinate the goals and objectives of the Drinking Water Master Plan with the Hydrogeologic team d. Coordinate internal and external meetings 2. Hydrogeologic Study a. Completing a desktop hydrogeologic evaluation to identify possible source aquifers in the Assessment area including the thickness and extent, aquifer parameters and potential well yields, and general groundwater chemistry. b. Preparing a report that summarizes the findings of the desktop assessment and recommended target aquifer(s) and locations for a future test wells and aquifer pumping test(s) to further characterize the aquifer(s) for well field expansion in the Central Wellfield (CWF) and Northwest Wellfield (NWWF) areas. Exhibit A – Engineer’s Services Agreement Between Owner and Engineer for Study and Report Professional Services Page 2 c. Working with the City and City’s engineers, finalize the optimum number, locations and depths of test holes, test wells and observation wells. Three test holes, one test well, and one observation well in the aquifer selected are estimated at both the CWF and NWWF areas. The aquifer selected will be based on the aquifers’ estimated thickness, extent, and potential to meet future demands, considering the City’s existing and future infrastructure, and initial discussion with the MN DNR on any future water appropriation concerns. In addition, two 72-hour aquifer pumping tests are anticipated to be completed; one using the test well in the NWWF area, and the second using the test well in CWF area. d. Designing and preparing the specifications for test hole drilling, test well and observation well installation, and a 72-hour aquifer pumping test at the CWF and NWWF. e. Obtaining drilling contractor costs for the test holes, test wells, observation wells, and aquifer pumping tests. f. Providing oversight and geologic logging of the test holes, and installation of the test wells and observation wells. g. Preparing an aquifer pumping test work plan and implementing the 72-hour aquifer pumping tests at the CWF and NWWF with assistance from the drilling contractor. h. Completing the aquifer pumping test data analysis, recommending a Well No. 10 design and additional wells and separation distances in the NWWF if the demand cannot be met with a single well (i.e., Well No. 10), and preliminary CWF design, and providing a brief report summarizing the drilling, aquifer testing, and preliminary design results. 3. Drinking Water Master Plan Update a. Incorporate the findings of the Hydrogeologic Study into a Master Plan Update b. Review water quality data and confirm the appropriateness of the previously recommended water treatment alternative based upon the new water quality data c. Review the recommendations of the Hydrogeologic Study related to well development, anticipated production, and allowable well spacing to update the drinking water Capital Improvement Plan (CIP) based upon the alternative aquifer(s). d. Presentations 1) Two presentations to the Public Works Subcommittee 2) One presentation to the City Council (a special meeting is assumed) 4. Consult with Owner regarding fulfillment of Owner's responsibilities under Article 2. 5. Advise Owner of any need for Owner to provide other data or services. A1.02 Times for Rendering Services Exhibit A – Engineer’s Services Agreement Between Owner and Engineer for Study and Report Professional Services Page 3 A. Engineer's Assignment will be considered complete when all deliverables set forth in Exhibit A are submitted to Owner. PART 2 – ADDITIONAL SERVICES A2.01 Additional Services Requiring Owner’s Written Authorization A. If authorized in writing by Owner, Engineer shall furnish or obtain from others Additional Services of the types listed below. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans, or advances in connection with the Assignment or Project; preparation of environmental assessments and impact statements; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by Owner or others. 3. Services resulting from significant changes in the scope, extent, or character of the of the Assignment including, but not limited to, changes in size, complexity, Owner’s schedule, character of construction, or method of financing; and revising previously accepted studies and reports when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date or are due to any other causes beyond Engineer’s control. 4. Services resulting from Owner’s request to evaluate additional potential solutions beyond those identified in Paragraph A1.01.A.5. 5. Services required as a result of Owner providing incomplete or incorrect information to Engineer. 6. Providing renderings or models for Owner’s use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of financial feasibility and cash flow studies, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting Owner in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by Owner. 8. Providing assistance in responding to the presence of any Constituent of Concern at the Site, in compliance with current Laws and Regulations. 9. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other dispute resolution process related to the Assignment. 10. Other services performed or furnished by Engineer not otherwise provided for in this Agreement. Exhibit B – Standard Hourly Rates and Reimbursable Expenses Agreement Between Owner and Engineer for Study and Report Professional Services Page 1 This is EXHIBIT B, Standard Hourly Rates and Reimbursable Expenses Schedule, referred to in and part of the Agreement Between Owner and Engineer for Study and Report Professional Services dated December 8, 2021. Engineer’s Standard Hourly Rates and Reimbursable Expenses Schedule Reimbursable Expenses and Standard Hourly Rates in effect on the date of the Agreement are set forth below. Rates are subject to annual adjustment effective January 1. Labor Rates* Administrative I $60.00 Administrative II $73.00 Administrative III $88.00 Communications Specialist I $93.00 Communications Specialist II $108.00 Communications Specialist III $125.00 Communications Specialist IV $150.00 Communications Specialist V $165.00 Construction Services I $142.00 Construction Services II $155.00 Construction Services III $175.00 Construction Services IV $192.00 Construction Services V $210.00 Engineering Assistant 1 $73.00 Engineering Assistant 2 $88.00 Engineering Assistant 3 $110.00 Engineer I $119.00 Engineer II $141.00 Engineer III $168.00 Engineer IV $193.00 Engineer V $205.00 Engineer VI $223.00 Engineer VII $241.00 Engineer VIII $250.00 Engineering Technician I $72.00 Engineering Technician II $92.00 Engineering Technician III $112.00 Engineering Technician IV $126.00 Engineering Technician V $143.00 Engineering Technician VI $158.00 Engineering Technician VII $175.00 Engineering Technician VIII $186.00 Financial Analyst I $99.00 Financial Analyst II $112.00 Financial Analyst III $135.00 Financial Analyst IV $145.00 Financial Analyst V $164.00 Financial Analyst VI $185.00 Financial Analyst VII $202.00 Financial Analyst VIII $220.00 GIS Specialist I $93.00 GIS Specialist II $112.00 GIS Specialist III $132.00 GIS Specialist IV $148.00 GIS Specialist V $165.00 GIS Specialist VI $185.00 I&C Assistant $86.00 I&C Technician I $105.00 I&C Technician II $118.00 I&C Technician III $133.00 I&C Technician IV $144.00 I&C Technician V $157.00 I&C Specialist $171.00 I&C Senior Specialist $181.00 I&C Manager $190.00 IT I $110.00 IT II $150.00 IT III $180.00 Land Surveyor Assistant $85.00 Land Surveyor I $102.00 Land Surveyor II $122.00 Land Surveyor III $137.00 Land Surveyor IV $151.00 Operations Specialist I $86.00 Operations Specialist II $104.00 Operations Specialist III $131.00 Operations Specialist IV $148.00 Operations Specialist V $172.00 Program Coordinator I $185.00 Program Coordinator II $199.00 Program Coordinator III $210.00 Project Coordinator I $103.00 Project Coordinator II $114.00 Project Coordinator III $125.00 Project Coordinator IV $140.00 Project Coordinator V $158.00 Project Manager I $175.00 Project Manager II $192.00 Project Manager III $212.00 Project Manager IV $226.00 Technical Expert I $260.00 Technical Expert II $283.00 Technical Expert III Negotiable Exhibit B – Standard Hourly Rates and Reimbursable Expenses Agreement Between Owner and Engineer for Study and Report Professional Services Page 2 Reimbursable Expense Rates Transportation $0.65/mile Survey Vehicle $0.85/mile Laser Printouts/Photocopies $0.30/copy Plotter Printouts $1.00/s.f. UAS - Photo/Video Grade $100.00/day Total Station – Robotic $35.00/hour Mapping GPS $25.00/hour Fast Static/RTK GPS $50.00/hour All-Terrain Vehicle/Boat $100.00/day Cellular Modem $75.00/month Web Hosting $26.00/month Legal Services Reimbursement $238.00/hour Outside Services cost *1.15 Geotechnical Services cost *1.30 Out of Pocket Expenses cost*1.15 Rental Car cost*1.20 Project Specific Equipment Negotiable * Position titles are for labor rate grade purposes only. ** Includes laboratory testing, architectural and engineering consultants, surveying, etc. *** Includes toll telephone, shipping, postage, subsistence, technical literature, equipment rental, etc. These rates are subject to adjustment each year on January 1.