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ITEM 6.1 West WWTFP OtCI�egog MINNESOTA V DEPARTMENT INFORMATION Request for City Council Action ORIGINATING DEPARTMENT: Administration REQUESTOR: Lori Johnson, City Administrator MEETING DATE: May 26, 2015 PRESENTER(s): REVIEWED BY: ITEM #: Lori Johnson, City Administrator Andy MacArthur, City Attorney 6.1 Ron Wagner, City Engineer Kurt Neidermeier, Utility Operations Manager AGENDA ITEM DETAILS RECOMMENDATION: Recommend entering into an Agreement Between Owner and Engineer for Professional Services (Agreement) with AE2S for the West Waste Water Treatment Facility Digester Improvement Proi ARE YOU SEEKING APPROVAL OF A CONTRACT? Yes IS A PUBLIC HEARING REQUIRED? No BAC KG R O U N D/J U STI F I CATION : On May 6, 2015, the City Council held a special meeting to discuss waste water processing, capacity, and odor matters. Following a thorough presentation of the situation and possible solutions, as they currently exist, by Scott Schaefer, P.E., of AE2S, the Council directed Mr. Schaefer to submit a proposal for an engineering study on the needed improvements. AE2S submitted a proposal which is attached. The proposal has been reviewed by the City Engineer and Utility Operations Manager, and both agree with the scope of services identified in the contract. The City Engineer stated the proposed cost of $126,900 is reasonable. The City Attorney has reviewed the legal provisions of the contract and his comments are attached. A revised Agreement including the City Attorney's comments will not be available in time for Tuesday's meeting. Therefore, we are requesting that the Agreement be approved contingent upon the addition of the modifications requested by the City Attorney and City Council. The City Attorney will ensure that all changes are made prior to signing the agreement. SUPPORTING DOCUMENTS: X ❑ ATTACHED ❑ NONE • Agreement Between Owner and Engineer for Professional Services • Memo from City Attorney Andy MacArthur with recommended modifications to the Agreement POSSIBLE MOTION Please word motion as you would like it to appear in the minutes. Motion to enter into an Agreement Between Owner (Otsego) and Engineer (AE2S) for Professional Services for the West Waste Water Digester Improvement Project at a not to exceed cost of $126,900 contingent upon incorporation of the City Attorney's (and Council's) recommended changes. BUDGET INFORMATION FUNDING: BUDGETED: X ❑ YES Waste Water Fund ❑ NO ACTION TAKEN ❑ APPROVED AS REQUESTED ❑ DENIED ❑ TABLED ❑ OTHER (List changes) COMMENTS: AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of May 26 , 2015 ("Effective Date") between City of Otsego, Minnesota ("Owner") and Advanced Engineering and Environmental Services, INC (AE2S) (`Engineer") Owner intends to expand biosolids processing capacity at the Otsego West Wastewater Treatment Facility (West WWTF) with the West WWTFDigester Improvements project. Owner and Engineer agree as follows: ARTICLE 1 - SERVICES OF ENGINEER 3.02 Time for Completion 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 have the responsibilities set forth herein and in Exhibit B. B. Owner shall pay Engineer as set forth in Exhibit C. C. Owner shall be responsible for, and Engineer may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use such requirements, programs, instructions, reports, data, and information in performing or furnishing services under this Agreement. ARTICLE 3 - SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer shall begin rendering services as of the Effective Date of the Agreement. ("Project"). 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. C. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer's performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled to the recovery of direct damages resulting from such failure. Page 1 of 10 Agreement Between Owner and Engineer for Professional Services 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 Exhibit C. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. 4.02 Payments A. Obligation to Pay. Except as noted in paragraph D., Owner's obligation to pay for our services under this Agreement is not contingent on Owner's ability to obtain financing, 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. B. Application to Interest and Principal. Payment will be credited first to any interest owed to Engineer and then to principal. C. Failure to Pay. If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer's invoice, then: 1. Amounts due Engineer will be increased at the rate of 1.0% 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. D. Disputed Invoices. If Owner contests an invoice, Owner may withhold only that portion so contested, and must pay the undisputed portion. E. Legislative Actions. If after the Effective Date of the Agreement any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer's services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which a factor of 1.0 shall be applied. Owner shall pay such invoiced new taxes, fees, and charges; such payment shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. F. Legal Actions. Owner agrees to compensate Engineer as set forthin Exhibit C, if Engineer is asked or required to respond to legal process arising out of a proceeding related to the Project and as to which Engineer is not a party. 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 best judgment as an experienced and qualified professional generally familiar with the construction industry. However, since 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 wishes greater assurance as to probable Construction Cost, Owner shall employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit A. Not Used. 5.03 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. 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 warranties, express or implied, under this Agreement or otherwise, in connection with Engineer's services. B. Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer's services. Engineer shall correct any such deficiencies in Page 2 of 10 Agreement Between Owner and Engineer for Professional Services technical accuracy without additional compensation except to the extent such corrective action is directly attributable to deficiencies in Owner -furnished information. C. 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. D. 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. E. Engineer and Owner shall comply with applicable Laws and Regulations and Owner -mandated standards that Owner has provided to Engineer in writing. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to Owner's responsibilities or to Engineer's scope of services, times of performance, and compensation. G. 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. H. The General Conditions for any construction contract documents prepared hereunder are to be the "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Documents Committee (No. C-700, 2002 Edition) unless both parties mutually agree to use other General Conditions by specific reference in Exhibit J. I. Engineer shall not at any time supervise, direct, or have control over Contractor's work, nor shall Engineer have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by Contractor, for security or safety at the Site, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. J. Engineer neither guarantees the performance of any contractor nor assumes responsibility for any contractor's failure to furnish and perform the Work in accordance with the Contract Documents. K. Engineer shall not be responsible for the acts or omissions of any contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineer's own employees and its Consultants) at the Site or otherwise furnishing or performing any Work; or for any decision made on interpretations or clarifications of the Contract Documents given by Owner without consultation and advice of Engineer. 6.02 Design without Construction Phase Services A. If Engineer's Basic Services under this Agreement do not include Project observation, or review of the Contractor's performance, or any other Construction Phase services, then (1) Engineer's services under this Agreement shall be deemed complete no later than the end of the Bidding or Negotiating Phase; (2) Engineer shall have no design or shop drawing review obligations during construction; (3) Owner assumes all responsibility for the application and interpretation of the Contract Documents, contract administration, construction observation and review, and all other necessary Construction Phase engineering and professional services; and (4) Owner waives any claims against the Engineer that may be connected in any way thereto. 6.03 Use of Documents A. All Documents are instruments of service in respect to this Project, and Engineer shall• retain an ownership and property interest therein (including the copyright and the right of reuse at the discretion of the Engineer) whether or not the 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. A party may rely that data or information set forth on paper (also known as hard copies) that the parry 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 sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. C. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any transmittal errors detected within the 60 -day acceptance period will be corrected by the party delivering the electronic files. Page 3 of 10 Agreement Between Owner and Engineer for Professional Services 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 may make and retain copies of Documents for information and reference in connection with use on the Project by Owner. Engineer grants Owner a license to use the Documents on the Project, extensions of the Project, and other projects of Owner, subject to the following limitations: (1) Owner acknowledges that such Documents are not intended or represented to be suitable for use on the Project 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) any such use or reuse, or any 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; (3) 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, or modification without written verification, completion, or adaptation by Engineer; (4) such limited license to Owner shall not create any rights in third parties. F. If Engineer at Owner's request verifies or adapts the Documents for extensions of the Project or for any other project, then Owner shall compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer. 6.04 Insurance A. Engineer shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. B. Owner shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Owner shall cause Engineer and Engineer's Consultants to be listed as additional insureds on any general liability or property insurance policies carried by Owner which are applicable to the Project. C. Owner shall require Contractor to purchase and maintain general liability and other insurance in accordance with the requirements of paragraph 5.04 of the "Standard General Conditions of the Construction Contract," (No. C-700, 2002 Edition) as prepared by the Engineers Joint Contract Documents Committee and to cause Engineer and Engineer's Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project. D. Owner and Engineer shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of Engineer's services and at renewals thereafter during the life of the Agreement. E. All policies of property insurance relating to the Project shall contain provisions to the effect that Engineer's and Engineer's Consultants' interests are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery against Engineer or its Consultants, or any insureds or additional insureds thereunder. F. At any time, Owner may request that Engineer or its Consultants, at Owner's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements. 6.05 Suspension and Termination A. Suspension. By Owner: Owner may suspend the Project upon seven days written notice to Engineer. By Engineer: If Engineer's services are substantially delayed through no fault of Engineer, Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement. B. Termination. The obligation to provide further services under this Agreement may be terminated: For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating ply. Page 4 of 10 Agreement Between Owner and Engineer for Professional Services By Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer's responsibilities as a licensed professional; or 2) upon seven days written notice if the Engineer's services for the Project are delayed or suspended for more than 90 days for reasons beyond Engineer's control. 3) Engineer shall have no liability to Owner on account of such termination. C. Notwithstanding the foregoing, this Agreement will not terminate under paragraph 6.05.B.1.a 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 thereof, 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. For convenience, a. By Owner effective upon Engineer's receipt of notice from Owner. C. Effective Date of Termination. The terminating party under paragraph 6.05.B may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to demobilize personnel and equipment from the Site, 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. Payments Upon Termination. 1. In the event of any termination under paragraph 6.05, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. Upon making such payment, Owner shall have the limited right to the use of Documents, at Owner's sole risk, subject to the provisions of paragraph 6.03.E. 2. In the event of termination by Owner for convenience or by Engineer for cause, Engineer shall be entitled, in addition to invoicing for those items identified in paragraph 6.05.D.1, to invoice Owner and to payment of a reasonable amount for services and exp6nses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with Engineer's Consultants, and other related close-out costs, using methods and rates for Additional Services as set forth in Exhibit C. 6.06 Controlling Law A. This Agreement is to be governed by the law of the State of Minnesota without regard to conflict of law principles. 6.07 Successors, Assigns, and Beneficiaries A. Owner and Engineer each is hereby bound and the partners, successors, executors, administrators and legal representatives of Owner and Engineer (and to the extent permitted by paragraph 6.07.B the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the partners, 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 Engi to any Contractor, Contractor's subcontractor, supplier, 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. Page 5 of 10 Agreement Between Owner and Engineer for Professional Services 3. Owner agrees that the substance of the provisions of this paragraph 6.07.0 shall appear in the Contract Documents. 6.08 Dispute Resolution A. Owner and Engineer agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to exercising their rights under law. 6.09 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 an undisclosed Constituent of Concern, 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 and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the 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 "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. 6.10 Indemnification and Mutual Waiver A. Indemnification by Engineer. To the fullest extent permitted by law, 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 or relating to the 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 (other than the Work itself), 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, partners, employees, or Consultants. The indemnification provision of the preceding sentence is subject to and limited by the provisions agreed to by Owner and Engineer in Exhibit I, "Allocation of Risks," if any. B. Indemnification by Owner. To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer, Engineer's officers, directors, partners, agents, employees, and Consultants 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 or relating to the 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 (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Owner or Owner's officers, directors, partners, agents, consultants, or employees, or others retained by or under contract to the Owner with respect to this Agreement or to the Project. C. Environmental Indemnification. In addition to the indemnity provided under paragraph 6.10.13 of this Agreement, and to the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, partners, agents, employees, and Consultants from and against any and all claims, 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) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (i) any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other Page 6 of 10 Agreement Between Owner and Engineer for Professional Services than the Work itself), 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 own negligence or willful misconduct. 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. Mutual Waiver. To the fullest extent permitted by law, Owner and Engineer waive against each other, and the other's employees, officers, directors, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project. 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, who 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. Accrual of Claims. To the fullest extent permitted by law, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. 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 or in the exhibits; in the following provisions; or in the "Standard General Conditions of the Construction Contract," prepared by the Engineers Joint Contract Documents Committee (No. C-700,2002 Edition): 1. Additional Services --The services to be performed for or furnished to Owner by Engineer in accordance with Exhibit A, Part 2, of this Agreement. 2. Basic Services --The services to be performed for or furnished to Owner by Engineer in accordance with Exhibit A, Part 1, of this Agreement. 3. Construction Cost --The cost to Owner of those portions of the entire Project designed or specified by Engineer. Construction Cost does not include costs of services of Engineer or other design professionals and consultants, cost of land, rights-of- way, or compensation for damages to properties, or Owner's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 4. 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 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 Page 7 of 10 Agreement Between Owner and Engineer for Professional Services 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. 5. Consultants --Individuals or entities having a contract with Engineer to furnish services with respect to this Project as Engineer's independent professional associates, consultants, subcontractors, or vendors. 6. Documents --Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by Engineer to Owner pursuant to this Agreement. 7. Drmvings--That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 8. Lmvs and Regulations; Lcnvs or Regulat- ions --Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all govern- mental bodies, agencies, authorities, and courts having jurisdiction. 9. Reimbursable Expenses --The expenses incurred directly by Engineer in connection with the performing or furnishing of Basic and Additional Services for the Project. 10. Resident Project Representative --The authorized representative of Engineer, if any, assigned to assist Engineer at the Site during the Construction Phase. The Resident Project Representative will be Engineer's agent or employee and under Engineer's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative, if any, are as set forth in Exhibit D. 11. Specifications --That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 12. Total Project Costs --The sum of the Construction Cost, allowances for contingencies, and the total costs of services of Engineer or 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 pursuant to Exhibit B of this Agreement. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "Engineer's Services," consisting of 7 pages. B. Exhibit B, "Owner's Responsibilities," consisting of 2 pages. C. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of 1 page. D. Exhibit G, "Insurance," consisting of 1 page. L Exhibit I, "Allocation of Risks," consisting of 1 page. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 10 inclusive, 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 based on the format of Exhibit K to this Agreement. 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 services to be performed or furnished by Engineer and responsibilities of Owner under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. Page 8 of 10 Agreement Between Owner and Engineer for Professional Services IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: Lngineer: By: Title: Date Signed: Address for giving notices: Designated Representative (see paragraph 8.03.A): Title: Phone Number: Facsimile Number: E -Mail Address: By: Grant L, Meyer, P.M. Title: Client Program Leader Date Signed: 5/20/15 Engineer License or Certificate No. 43013 State of: MN Address for giving notices: 6901 E Fish Lake Rd, Ste 184 Maple Grove, MN 55369 Designated Representative (see paragraph 8.03.A): Scott Schaefer, P.E. Title: Wastewater Practice Leader Phone Number: 763-248-2929 Facsi vile Number: 763-463-5037 E -Mail Address: Scott.Schaefer@ae2s.com Page 9 of 10 Agreement Between Owner and Engineer for Professional Services This is EXIIIBIT A, consisting of 7 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Ma�26, 2015. Engineer's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. Engineer shall provide Basic and Additional Services as set forth below. Project Summary Project includes aerobic digestion upgrades at the Otsego West Wastewater Treatment Facility including the following components: • Additional aerobic digester volume • New aeration system (designed for up to 4.5 -percent total solids) • New blowers (one new, one replacement) • Yard piping • Associated electrical improvements The new digesters will serve as "primary" digesters with the existing digesters as "secondary/polishing" digesters. Provisions will be included for connection of future odor control. Project schedule assumes design in 2015 for bidding and construction in 2016. Prosect Basis and Assumptions • Blower building electrical is sufficient for the new blowers, although the electrical feed to the blower building will likely need to be upgraded. Site electrical is assumed to be sufficient to re -feed the blower building. • Emergency generator capacity is sufficient for new blowers. • Instrumentation for new digesters will include process monitoring. • Mechanical/HVAC system(s) do not require modification. • Additional geotechnical investigation/report (two borings) will be conducted for detailed structural design. Geotechnical work will be arranged by Engineer but contracted directly by Owner. • Updated site survey will be conducted by City Engineer and provided to Engineer. • Project delivery method will be traditional design -bid -build. • Project funding will be municipal bonds (i.e. not SRF). • Project is considered optimization by MPCA and will not trigger an Environmental Assessment Worksheet. • Digester layout/design assuming future doubling of aerobic digestion capacity at the site. • Design incorporates connection(s) for future vapor -phase odor control equipment. • Project disturbance area will be greater than one acre. • WWTF entrance road paving as a potential alternate using Owner standard paving details. • Design concept lock -in at 30 -percent review. • Design will be completed in 2015. PART 1— BASIC SERVICES A1.01 Study and Report Phase A. Engineer shall: Consult with Owner to define and clarify Owner's requirements for the Project and available data. 2. Advise Owner of any need for Owner to provide data or services of the types described in Exhibit B which are not part of Engineer's Basic Services. 3. Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by Engineer. Page 1 of 7 Pages (Exhibit A — Engineer's Services) Agreement Between Owner and Engineer for Professional Services 4. Desktop evaluation of West WWTF liquid treatment train: Determine potential for re -rating the load capacity of the liquid treatment train. Determine bottlenecks to re -rating that could be corrected to "balance" the flow and load capacities of the liquid treatment train. Determine up to three alternatives for improvements to mitigate liquid train load capacity bottlenecks. Prepare technical memorandum report with recommendations. 5. Desktop evaluation of East WWTF biosolids capacity: Benchmark the East WWTF biosolids capacity based upon recent experience at the West WWTF. Compare biosolids capacity rating to existing liquid treatment capacity rating. Provide a projection of the likely biosolids treatment capacity based on future building permits. Prepare technical memorandum report to document findings. Perform or provide the following additional Study Phase tasks or deliverables: Meetings o Initial kick-off and on-site review meeting o Presentation of desktop evaluation findings Deliverables o West WWTF Liquid Train Evaluation Tech Memo o East WWTF Biosolids Capacity Tech memo Furnish electronic (PDF) review copies of the Report(s) and any other deliverables to Owner. 8. Revise the Report and any other deliverables in response to Owner's comments, as appropriate, and furnish electronic copies of the revised Report and any other deliverables to the Owner. B. Engineer's services under the Study and Report Phase will be considered complete on the date when the revised Report and any other deliverables have been delivered to Owner. A1.02 Preliminary Design Phase A. After acceptance by Owner of the Report and any other deliverables, selection by Owner of a recommended solution and indication of any specific modifications or changes in the scope, extent, character, or design requirements of the Project desired by Owner, and upon written authorization from Owner, Engineer shall: 1. Prepare Preliminary Design Phase documents consisting of final design criteria, preliminary drawings, outline specifications, and written descriptions of the Project. 2. Advise Owner if additional reports, data, information, or services of the types described in Exhibit B are necessary and assist Owner in obtaining such reports, data, information, or services. 3. Based on the information contained in the Preliminary Design Phase documents, prepare a revised opinion of probable Construction Cost. 4. Perform or provide the following additional Preliminary Design Phase tasks or deliverables: • Design Basis confirmation. o Digester sizing to match liquid train rating, or o Digester sizing for future liquid train expansion. • Structural/foundation review and digester geometry pre -design for aeration system options. • Aeration system pre -selection. o Net present worth based pre -selection between draft -tube aeration/mixing (no direct competitor) and jet-aeration/mixing (multiple options). o Consideration for active aeration control process instrumentation and controls. • Blower pre -selection. o Dependent upon aeration selection due to differences in aeration requirements. o Net present worth based pre -selection between "standard" and high efficiency blowers. • Existing electrical system review to confirm adequacy for proposed improvements. • Code review (NEPA 820) of existing blower room. Page 2 of 7 Pages (Exhibit A — Engineer's Services) Agreement Between Owner and Engineer for Professional Services MPCA coordination. Meetings 0 30 -percent design confirmation meeting 0 30 -percent City Council update (design lock -in) Deliverables/Review Milestones o Design Memo and 30 -percent drawings 0 30 -percent Cost Opinion b. Furnish electronic PDF review copies of the Preliminary Design Phase documents and any other deliverables to Owner. Owner shall submit to Engineer any comments regarding the Preliminary Design Phase documents and any other deliverables. 7. Revise the Preliminary Design Phase documents and any other deliverables in response to Owner's comments, as appropriate, and furnish to Owner electronic PDF copies of the revised Preliminary Design Phase documents, revised opinion of probable Construction Cost, and any other deliverables. B. Engineer's services under the Preliminary Design Phase will be considered complete on the date when the revised Preliminary Design Phase documents, revised opinion of probable Construction Cost, and any other deliverables have been delivered to Owner. A1.03 Final Design Phase A. After acceptance by Owner of the Preliminary Design Phase documents, revised opinion of probable Construction Cost as determined in the Preliminary Design Phase, and any other deliverables subject to any Owner -directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from Owner, Engineer shall: 1. Prepare final Drawings and Specifications indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. If appropriate, Specifications shall conform to the 50 -division format of the Construction Specifications Institute. 2. Provide technical criteria, written descriptions, and design data for Owner's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project; assist Owner in consultations with such authorities; and revise the Drawings and Specifications in response to directives from such authorities. 3. Advise Owner of any adjustments to the opinion of probable Construction Cost known to Engineer. 4. Perform or provide the following additional Final Design Phase tasks or deliverables: •Incorporate comments from Preliminary Design review meeting and 75 -percent review meeting. • Final Design Components o Drawings: General, Civil/Site, Process, Structural, Electrical, P&ID(s) o Project specifications • Submit drawings/specifications to MPCA for review/approval and incorporate MPCA required revisions. • Meetings 0 75 -percent review meeting o Final design presentation to City Council • Deliverables/Review Milestones 0 75 -percent Design drawings/specifications o Bid Documents o Final Opinion of Probable Construction Cost Page 3 of 7 Pages (Exhibit A — Engineer's Services) Agreement Between Owner and Engineer for Professional Services 5. Prepare and furnish Bidding Documents for review by Owner, its legal counsel, and other advisors, and assist Owner in the preparation of other related documents. Owner shall submit to Engineer any comments and, subject to the provisions of paragraph 6.01.G, instructions for revisions. 6. Revise the Bidding Documents in accordance with comments and instructions from the Owner, as appropriate, and submit final electronic PDF copies of the Bidding Documents, a revised opinion of probable Construction Cost, and any other deliverables to Owner. B. Engineer's services under the Final Design Phase will be considered complete on the date when the submittals required by paragraph A1.03.A.6 have been delivered to Owner. C. In the event that the Work designed or specified by Engineer is to be performed or furnished under more than one prime contract, or if Engineer's services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast -tracking), Owner and Engineer shall, prior to commencement of the Final Design Phase, develop a schedule for performance of Engineer's services during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently. D. The number of prime contracts for Work designed or specified by Engineer upon which the Engineer's compensation has been established under this Agreement is one. If more prime contracts are awarded, Engineer shall be entitled to an equitable increase in its compensation under this Agreement. A1.04 Bidding or Negotiating Phase A. After acceptance by Owner of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by Owner to proceed, Engineer shall: 1. Assist Owner in advertising for and obtaining bids or proposals for the Work and, where applicable, maintain a record of prospective bidders to whom Bidding Documents have been issued and receive and process contractor deposits or charges for the Bidding Documents. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. Provide information or assistance needed by Owner in the course of any negotiations with prospective contractors. 4. Consult with Owner as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by prospective contractors for those portions of the Work as to which such acceptability is required by the Bidding Documents. 5. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: host electronic bidding documents on Engineer's Quest CDN webpage. 6. Attend the Bid opening, prepare Bid tabulation sheets, and assist Owner in evaluating Bids or proposals and in assembling and awarding contracts for the Work. B. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase or upon cessation of negotiations with prospective contractors (except as may be required if Exhibit F is a part of this Agreement). A1.05 Construction Phase A. Reserved for fixture use. Page 4 of 7 Pages (Exhibit A — Engineer's Services) Agreement Between Owner and Engineer for Professional Services A1.06 Post -Construction Phase A. Reserved for fitture use. A1.07 I&C Programming Services B. Reserved for future use. Additional Services not included in this Scope • Geotechnical investigation (to be direct contracted by Owner). • Survey will be by City Engineer with electronic coordinate file provided to Engineer. • Design beyond the scope listed in the Project Summary. • Additional design for liquid re -rate items/equipment. • Electrical design beyond new MCCs/VFDs for new blowers and upgraded electrical feed to the blower building. • Environmental assessment (i.e. an MPCA EIW/EAW). • Additional meetings beyond those included in the scope. • Operational assistance. 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 Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; 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 portions of the Project designed or specified by Engineer or its design requirements including, but not limited to, changes in size, complexity, Owner's schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement or are due to any other causes beyond Engineer's control. 4. Services resulting from Owner's request to evaluate additional Study and Report Phase alternative solutions beyond those identified in paragraph ALO1.A.4. 5. Services required as a result of Owner's providing incomplete or incorrect Project 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 feasibility studies, cash flow and economic evaluations, 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. Page 5 of 7 Pages (Exhibit A— Engineer's Services) Agreement Between Owner and Engineer for Professional Services 8. Furnishing services of Engineer's Consultants for other than Basic Services. 9. Services attributable to more prime construction contracts than specified in paragraph A1.03.C. 10. Services during out-of-town travel required of Engineer other than for visits to the Site or Owner's office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by Owner; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by Owner for the Work or a portion thereof. 13. Determining the acceptability of substitute materials and equipment proposed during the Bidding or Negotiating Phase when substitution prior to the award of contracts is allowed by the Bidding Documents. 14. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required by Exhibit F. 15. Providing construction surveys and staking to enable Contractor to perform its work other than as required under paragraph A1.05.A.5, and any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 16. Providing Construction Phase services beyond the original date for final completion of the Work. 17. Providing assistance in responding to the presence of any Constituent of Concern at the Site, in compliance with current Laws and Regulations. 18. Preparing and furnishing to Owner Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor. 19. Preparation of operation and maintenance manuals. 20. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other dispute resolution process related to the Project. 21. Providing more extensive services required to enable Engineer to issue notices or certifications requested by Owner. 22. Other services performed or furnished by Engineer not otherwise provided for in this Agreement. A2.02 Additional Services Not Requiring Owner's Written Authorization A. Engineer shall advise Owner that Engineer is commencing to perform or furnish the Additional Services of the types listed below. For such Additional Services, Engineer need not request or obtain specific advance written authorization from Owner. Engineer shall cease performing or furnishing such Additional Services upon receipt of written notice from Owner. 1. Services in connection with Work Change Directives and Change Orders to reflect changes requested by Owner. 2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than "or -equal" items; and services after the award of the Construction Contract in evaluating and determining the acceptability of a substitution which is found to be inappropriate for the Project or an excessive number of substitutions. Page 6 of 7 Pages (Exhibit A — Engineer's Services) Agreement Between Owner and Engineer for Professional Services 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work, (2) the presence at the Site of any Constituent of Concern, (3) Work damaged by fire or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. 5. Services (other than Basic Services during the Post -Construction Phase) in connection with any partial utilization of any part of the Work by Owner prior to Substantial Completion. 6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. Services during the Construction Phase rendered after the date stated in A1.05.B. Page 7 of 7 Pages (Exhibit A — Engineer's Services) Agreement Between Owner and Engineer for Professional Services This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated May 26, 2015. Owner's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of Owner as set forth in this Agreement, Owner shall at its expense: A. Provide Engineer with all criteria and full information as to Owner's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which Owner will require to be included in the Drawings and Specifications; and furnish copies of Owner's standard forms, conditions, and related documents for Engineer to include in the Bidding Documents, when applicable. B. Furnish to Engineer any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. Following Engineer's assessment of initially -available Project information and data and upon Engineer's request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable Engineer to complete its Basic and Additional Services. Such additional information or data would generally include the following: 1. Property descriptions. 2. Zoning, deed, and other land use restrictions. 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site, or hydrographic surveys, with appropriate professional interpretation thereof. 5. Environmental assessments, audits, investigations, and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 6. Data or consultations as required for the Project but not otherwise identified in the Agreement or the Exhibits thereto. 7. Geotechnical report as identified in Exhibit A. 8. Site survey as identified in Exhibit A. D. Give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of the presence at the Site of any Constituent of Concern, or of any other development that affects the scope or time of performance of Engineer's services, or any defect or nonconformance in Engineer's services, the Work, or in the performance of any Contractor. E. Authorize Engineer to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as required. F. 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. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by Engineer (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as Owner deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Project designed or specified by Engineer and such reviews, approvals, and consents from others as may be necessary for completion of each phase of the Project. I. Provide, as required for the Project: 1. Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services. 2. Legal services with regard to issues pertaining to the Project as Owner requires, Contractor raises, or Engineer reasonably requests. 3. Such auditing services as Owner requires to ascertain how or for what purpose Contractor has used the moneys paid. 4. Placement and payment for advertisement for Bids in appropriate publications. J. Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. K. Furnish to Engineer data as to Owner's anticipated costs for services to be provided by others (including, but not limited to, accounting, bond and financial, independent cost estimating, insurance counseling, and legal advice) for Owner so that Engineer may assist Owner in collating the various cost categories which comprise Total Project Costs. L. If Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to represent Owner at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of Engineer. M. If more than one prime contract is to be awarded for the Work designed or specified by Engineer, designate a person or entity to have authority and responsibility for coordinating the activities among the various prime Contractors, and define and set forth the duties, responsibilities, and limitations of authority of such individual or entity and the relation thereof to the duties, responsibilities, and authority of Engineer as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin. N. Attend the pre-bid conference, bid opening, pre -construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment inspections. O. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of Samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of Owner, prior to their incorporation into the Work with appropriate professional interpretation thereof. P. Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this paragraph. Page 2 of 2 Pages (Exhibit B - Owner's Responsibilities) Agreement Between Owner and Engineer for Professional Services. This is EXHIBIT C, consisting of 1 page, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated May26, 2015 Payments to Engineer for Services and Reimbursable Expenses Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 2 --Owner's Responsibilities C2.01 Compensation For Basic Services (other than Resident Project Representative and Post -Construction) -- Lump Sum Method of Payment A. Owner shall pay Engineer for Basic Services set forth in Exhibit A, except for services of Engineer's Resident Project Representative and Post -Construction Phase services, if any, as follows: A Lump Sum amount of $126,900 based on the following assumed distribution of compensation: a. Study and Report Phase b. Preliminary Design Phase c. Final Design Phase d. Bidding and Negotiating Phase e. Construction Phase f. Post -Construction Phase g. I&C Programming $ 9,800 $28,700 $71,800 $16,600 Reserved for Facture Use Reserved for Future Use Reserved for Future Use 2. Engineer may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the Owner. 3. The Lump Sum includes compensation for Engineer's services and services of Engineer's Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for labor, overhead, profit, and Reimbursable Expenses. 4. The portion of the Lump Sum amount billed for Engineer's services will be based upon Engineer's estimate of the proportion of the total services actually completed during the billing period to the Lump Sum. C2.02 [Not used] C2.03 [Not used] Page 1 of 1 Page Exhibit C— Basic Services (other than RPR and Post -Construction) — Lump Sum Method of Payment Agreement Between Owner and Engineer for Professional Services. This is EXHIBIT G, consisting of 1 page, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated May 26, 2015. Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance A. The limits of liability for the insurance required by paragraph 6,05.A and 6.053 of the Agreement are as follows: 1. By Engineer: a. Workers' Compensation: Statutory b. Employer's Liability -- 1) Each Accident: $1,000,000 2) Disease, Policy Limit: $1,000,000 3) Disease, Each Employee: $1,000,000 C. General Liability -- 1) Each Occurrence (Bodily Injury and Property Damage): $1,000,000 2) General Aggregate: $2,000,000 d. Automobile Liability -- 1) Combined Single Limit (Bodily Injury and Property Damage): Each Accident $1,000,000 f. Professional Liability — 1) Each Claim Made $2,000,000 2) Annual Aggregate $2,000,000 B. Additional Insureds 1. The Owner shall be listed on Engineer's general liability policy as provided in paragraph 6.05.A. Page 1 of I Page (Exhibit G - Insurance) Agreement Between Owner and Engineer for Professional Services. This is EXHIBIT I, consisting of 1 page, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated May 26, 2015. Allocation of Risks Paragraph 6.10 of the Agreement is amended and supplemented to include the following agreement of the parties: I6.10.A Limitation of Engineer's Liability 1. Engineer's Liability Limited to Amount of Insurance Proceeds. Engineer shall procure and maintain insurance as required by and set forth in Exhibit G to this Agreement. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, the total liability, in the aggregate, of Engineer and Engineer's officers, directors, partners, employees, and Consultants, and any of them, to Owner and anyone claiming by, through, or under Owner for any and all losses, costs, or damages whatsoever 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 the negligence, professional errors or omissions, strict liability or breach of contract, or warranty express or implied, of Engineer or Engineer's officers, directors, partners, employees, or Consultants, or any of them (hereafter "Owner's Claims"), shall not exceed the total insurance proceeds paid on behalf of or to Engineer by Engineer's insurers in settlement or satisfaction of Owner's Claims under the terms and conditions of Engineer's insurance policies applicable thereto (excluding fees, costs and expenses of investigation, claims adjustment, defense, and appeal). 2. Exclusion of Special, Incidental, Indirect, and Consequential Damages. To the fullest extent permitted by law, and notwithstanding any other provision in the Agreement, consistent with the terms of paragraph 6.10.E the Engineer -and Engineer's officers, directors, partners, employees, and Consultants, or any of them, shall not be liable to Owner or anyone claiming by, through, or under Owner for any special, incidental, indirect, or consequential damages whatsoever 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, professional errors or omissions, strict liability, breach of contract, or warranties, express or implied, of Engineer or Engineer's officers, directors, partners, employees, agents, or Engineer's Consultants, or any of them. Page 1 of 1 Page (Exhibit I — Allocation of Risk) Agreement Between Owner and Engineer for Professional Services. Memo To: Otsego City Council From: Andy MacArthur, City Attorney CC: Lori Johnson, City Administrator; Ron Wagner, City Engineer Date: May 21, 2015 Re: Proposed Contract- City of Otsego & AEES, Inc. I have been asked to review the attached contract for engineering services related to expansion of biosolids capacity at the west wastewater treatment facility proposed by AEES, Inc. The contract was received yesterday and I have had a chance to quickly review the document prior to the next City Council meeting on May 26. It is my understanding that the Agreement will be on that agenda for possible approval. Following are my comments on the proposed Agreement. • Page 3, Section 6.03 indicates that the documents provided by the Engineer are instruments of service and not actually the property of the City. Section A states that the documents are only instruments of service. Section E purports to give the City only a license to use or reuse of these documents. The City is paying for these documents and should have ownership. Section 6.03 should be modified in its entirety to state that the completed documents are the property of the City. • Page 4, Section 6.04, B of the proposed Agreement calls for the City to procure and maintain certain insurance. Exhibit G references 6.05 rather than 6.04 and has no provision for City insurance. Section 6.04 E states that all property insurance related to the Project shall include Engineer and its consultants as additional insured and that no recovery be allowed against the Engineer or consultants if an insurance payment is made. 6.04, B and Exhibit G should be clarified and modified to include only Engineer required insurance. 6.04, E should be deleted. • Page 5, Section 6.05, D, 1 of the proposed Agreement related to payments upon termination needs to be revised in light of my comments on Section 6.03 above. • Page 6, Section 6.09, D, the words "and without liability for consequential or any other damages" should be deleted. • Page 6, Section 6.10, A, the last full sentence should be deleted and Exhibit I to the contract regarding "Allocation of Risks" should be entirely deleted. Exhibit I, 1 proposes to limit any damages recoverable against the Engineer to the insurance limits in place and No. 2 proposes to limit the type of damages which are recoverable. • Page 7, Section 6.10, E should be deleted as it once again proposes to limit certain types of damages. • Page 7, Section 6.11, E should be deleted as this proposes that causes of action and all statutes of limitation either accrue or begin to run upon the date of Substantial Completion. This would eliminate any cause of action accruing upon actual discovery of problems which might not occur until years after the date of Substantial Completion. The rest of the document appears to be acceptable. I do reserve the right to bring up additional concerns upon further review of the contract before the Council meeting. Council member's additional comments and concerns are encouraged. • 1 have no opinion on the specifics of the proposed Engineering services or the proposed costs. I will be available to go over the proposed contract, my suggested revisions and deletions, and to answer any questions at the next regularly scheduled City Council meeting. 0 Page