HomeMy WebLinkAboutResolution 2003-045
RESOLUTION NO. 2003-045
BE IT RESOLVED by the City Council of the City of North Richland Hills, Texas,
that:
1.
The City Manager be, and is hereby authorized to execute the attached
Agreement for Engineering Services with Freese and Nichols, Inc. for the Water System
Vulnerability Assessment, as an act and deed of the City.
PASSED AND APPROVED this the 28th day of April, 2003.
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APPROVED AS TO CONTENT:
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Mike urtis, P.E., Pu hc Works DIrector
AGREEMENT FOR PROFESSIONAL SERVICES
STATE OF TEXAS §
COUNTY OF TARRANT §
This AGREEMENT is entered into by the City of North Richland Hills, hereinafter called "OWNER" and Freese
and Nichols, Inc., hereinafter called "FNI". In consideration of the AGREEMENTS herein, the parties agree as
follows:
I. EMPLOYMENT OF FNI: In accordance with the terms of this AGREEMENT: OWNER agrees to employ
FNI; FNI agrees to perform professional services in connection with the Project; OWNER agrees to pay to
FNI compensation. The Project is described as follows: Water System Vnlnerability Assessment and
Water System Emergency Response Plan.
II. SCOPE OF SERVICES: FNI shall render professional services in connection with Project as set forth in
Attachment SC - Scope of Services and Responsibilities of OWNER which is attached to and made a part of
this AGREEMENT.
m. COMPENSATION: OWNER agrees to pay FNI for all professional services rendered under this
AGREEMENT in accordance with Attachment CO - Compensation which is attached hereto and made a part
of this AGREEMENT. FNI shall perform professional services as outlined in the "Scope of Services" for
lump sum fee of $43,000. Details concerning the fee are included in Attachment CO.
IfFNI's services are delayed or suspended by OWNER, or ifFNI's services are extended for more than 90
days through no fault of FNI, FNI shall be entitled to equitable adjustment of rates and amounts of
compensation to reflect reasonable costs incurred by FNI in connection with such delay or suspension and
reactivation and the fact that the time for perfonnance under this AGREEMENT has been revised.
IV. TERMS AND CONDITIONS OF AGREEMENT: The Terms and Conditions of Agreement as set forth as
Attachment TC shall govern the relationship between the OWNER and FNI.
Nothing under this AGREEMENT shall be construed to give any rights or benefits in this AGREEMENT to anyone
other than OWNER and FNI, and all duties and responsibilities undertaken pursuant to this AGREEMENT will be for
the sole and exclusive benefit of OWNER and FNI and not for the benefit of any other party.
This AGREEMENT constitutes the entire AGREEMENT between OWNER and FNI and supersedes all prior written
or oral understandings.
This contract is executed in two counterparts. a'b
IN TESTIMONY HEREOF, they have executed this AGREEMENT, the _ day of
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CITY OF NORTH RICHLAND HILLS
(OWNER)
BY:~~ y
ATTEST:
ATTEST:
FREESE A~ NICHOLS, INe.
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ATTACHMENT SC
SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER
This is an exhibit attached to, made a part of and incorporated by reference into the Agreement between CITY OF
NORTH RICHLAND HILLS (OWNER) and FNI providing for professional engineering services.
Under the H.R. 3448 bioterrorism act signed in June 2002 (P.L. 107-188) each community water system serving a
population greater than 3,300 is required to conduct an assessment of the vulnerability of its system to intentional acts
intended to substantially disrupt the ability of the system to provide a safe and reliable supply of drinking water. In
addition, each community water system serving a population greater than 3,300 is required to prepare or revise where
necessary, an emergency response plan. As such, a Vulnerability Assessment and an updated Water Utility Emergency
Response Plan is needed to plan response to an intentional attack on the public water system.
FNI will prepare a Water Utility Vulnerability Assessment utilizing RAM- WSM and a Water Utility
Emergency Response Plan as follows:
I. BASIC SERVICES: FNI shall render the following professional services in connection with the development
of the Project:
A. PROJECTPLA~G
Upon execution ofthis AGREEMENT, FNI shall:
1. Consult with OWNER to: (a) review the scope of services, (b) verify OWNER's requirements for the
Project, (c) defme purpose, mission, goals, issues, and objectives of the Project, (d) review utility
system maps, (e) discuss computerized monitoring and control, (f) discuss current utility security and
emergency response planning, (g) discuss current utility emergency response planning, (h) discuss
historical/existing data related to utility threats, vandalism, theft, and emergency response incidents,
and (i) identify critical customers.
2. Review current utility security survey and emergency response plan, if available.
3. The infonnation, assessments and plans developed herein as part of the Project, shall be held
confidential and its integrity protected through appropriate information protection strategies and
protocols. Develop document and file (electronic and paper file) security and control plan and
protocols. Implement plan and protocols with OWNER's personnel and FNI.
B. DATA DEVELOPMENT
1. Obtain utility system maps, studies, and facility construction plans from OWNER. Develop utility
system schematic and document utility operation information.
2. Obtain available information such as City and utility organizational structure, emergency response
organizational structure and incident command system; interlocal agreements and contracts for
emergency services; current City and utility emergency communication system; and other resources for
emergency response.
3. Conduct Planning Workshop with OWNER's staff to verify utility system mission, prioritize facilities,
identify and prioritize undesirable consequences of system malfunction, and identify design basis
threat. A total of one (1) - 3 hour maximum planning workshop and one (1) - I hour Council briefing
is budgeted. Additional workshops can be conducted if needed as an additional service. Based on the
discussion and information obtained from the OWNER's staff;
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a
Identify important mission/functions of the utility system.
Identify acceptable level of perfonnance (pressure, capacity, service area, quality,
and critical customers).
Identify undesirable consequences (such as economic loss, duration of loss,
population impacted, loss of fire protection, and environmental) that could affect the
missions/functions. Prioritize consequences.
Review system interrelationships and interdependencies (power/electrical, SCADA,
chemical delivery, manpower).
Detennine and prioritize the critical facilities that need to be protected to minimize
the impacts of the undesirable consequences based on capacity, population served,
critical customers, water pressure, drinking water quality, and receiving stream water
quality.
Identify malevolent acts that could reasonably cause the undesirable consequences
such as:
(1) Loss of critical function and/or major service disruption,
(2) Intentional attack on public safety via utility assets, contamination of the
water supply, and chemical releases or chemical theft.
b
c
d
e
f
4. Select and characterize up to two design basis threats such as insider threat, outsider threat, and cyber
threat. The twö design basis threats shall be based on available infonnation from local law
enforcement, the Environmental Protection Agency, and the Federal Bureau of Investigation.
5. Develop draft facility prioritization and draft consequence criteria.
6. Conduct a systematic site characterization of the water system by conducting a site visit with
OWNER's personnel to the OWNER's critical facilities (sites). A total of six (6) hours plus travel
time is budgeted for site characterizations. Additional site characterizations can be conducted if
needed as an additional service. All facilities that will be characterized shall under the jurisdiction of
the City of North Richland Hills. Document site visits with digital photos. Collect performance data
at each site (when applicable) on:
a Important facilities, processes, and assets. Develop site plans and functional
schematics for each site. Identify equipment capacities.
b Neighborhood character and adjacent facilities.
c Personnel assignments and personnel hours.
d System interrelationships and interdependencies (power/electrical, SCADA,
chemical delivery, manpower).
e Main transmission piping at the facility being investigated. Identify system
redundancies and primary valving locations for system isolation. Transmission
piping of the distribution system is not included.
f Identify current security and monitoring system for chemical feed system, storage
and handling if applicable.
g Power supply and communications system.
h Physical protection and security system features of deterrence, detection, delay, and
response.
Security policies and procedures and compliance with same.
J Entry control for visitors, deliveries, contractors, and vendors and quantity of same.
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k Response time for local law enforcement and emergency services.
I Construction site security and temporary water metering procedures.
m System monitoring, testing of chemicals, real time monitoring.
7. Conduct and document systematic characterization of the Supervisory Control and Data Acquisition
(SCADA) system by identifying cyber protection features if applicable.
a Develop SCADA system architecture diagram based on information provided by
OWNER. Identify network connections.
b The review will include a preliminary investigation of the use of firewalls, proxy
servers and other security or intrusion detection devices used to prevent
unauthorized access to equipment and data.
c Hackers and unauthorized persons can disrupt utility department operations. Several
areas will be investigated to determine exposure. A port scan can be conducted. to
determine data routes available to intruders, if needed. The use of routable and non-
routable Internet protocol (IP) addresses will be studied to identify exposed systems.
The level of security patches, encryption schemes and security logging will be
investigated.
d Computer information access will be reviewed, including password policies, file and
folder permissions, user/group privileges and equipment/data access.
e Identify physical protection features such as protection of physical cabling, network
equipment protection, PC protection, and SCADA equipment protection.
C. WATER SYSTEM VULNERABILITY ASSESSMENT
1. Utilizing up to two critical facilities and up to two design basis threats, conduct vulnerability
assessment. Selection will be based on the available information and the OWNER's input.
2. Project how the malevolent acts might be conducted (adversary strategy) such as system contamination
(chemical, biological, and radiological), physical damage, cyber attack on the SCADA or other process
control systems, or interdependency disruptions (power/electrical, chemical delivery, and
transportation systems).
3. Based on available information from the Environmental Protection Agency and the Federal Bureau of
Investigation, assess the likelihood (qualitative probability i.e. high, medium, or low) of each design
basis threat (terrorist, insider, former employee, determined vandal, casual vandal).
4. Identify critical system assets at each critical facility. Approximate the consequences oflosing each
critical asset and potential ways to access critical assets. Prioritize critical assets based on relative
consequences.
5. Evaluate physical and operational protection system effectiveness at each critical facility. Estimate
relative system effectiveness.
6. Develop matrix and assign relative/qualitative values to: likelihood of attack (if data is available),
degree of vulnerability (effectiveness of security system), and consequences for each critical asset for
each design basis threat.
7. Define risk for each critical asset based on results of matrix (risk = probability x vulnerability x
consequence).
8.
Summarize the selected most critical assets (targets) in the water system, summarize interrelationships
within other assets in the system, summarize the consequences of malevolent acts that could be
directed against them, and evaluate effectiveness of both existing and recommended protection
systems. Provide recommendations for system improvements. Prepare an interim technical
memorandum outlining recommendations.
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9. Conduct an interim progress meeting with OWNER's staff to discuss contents the results of the
vulnerability assessment and to discuss options for system improvements. A total of one (1) interim
progress meeting is budgeted. Additional meetings, if needed, will be billed as an additional service.
In particular, surveillance and distribution system monitoring equipment options will be discussed in
detail.
10. Prepare an opinion of probable costs for system improvements. Based on risk and cost, prioritize
system improvements.
11. Prepare final draft of technical memorandum outlining prioritized plan for security upgrades,
modifications of operational procedures, and/or policy changes to mitigate identified risks to critical
assets. Prioritized plan of system improvements will include up to ten facilities.
12. Compilation of infonnation. The infonnation, assessments and plans developed herein as part of the
Project, shall be held confidential and its integrity protected through appropriate infonnation
protection strategies and protocols developed as part of this Project. No report will be submitted to the
Environmental Protection Agency or any other governmental agency without proper documènt
confidentiality protection provisions.
13. Submit certification to the Environmental Protection Agency thatthe OWNER has conducted a
vulnerability assessment.
14. Prepare and furnish up to five (5) copies of draft vulnerability assessment summary report.
Incorporate OWNER's comments. Submit summary report to the Environmental Protection Agency.
D. EMERGENCY RESPONSE PLAN DEVELOPMENT
1. Based on vulnerability assessment, identify up to three (3) utility emergency incidents for
development of incident specific plans such as intruder detection, SCADA system malfunction, power
outages, treated water contamination, and physical damage to critical assets.
2. Identify utility related assistance available from the Texas Commission on Environmental Quality
(TCEQ), the Environmental Protection Agency (EPA), and County.
3. Prepare up to three (3) incident specific emergency response plans.
4. Prepare and furnish up to five (5) copies ofthe Draft Emergency Response-Plan.
5. Incorporate review comments and furnish up to five (5) copies of the Water Utility Emergency
Response Plan.
6. Coordinate plan development with the City's representative to the Local Emergency Planning
Committee (LEPC).
7. Submit certification to the Environmental Protection Agency that the City has completed the
emergency response plan.
ARTICLE II
ADDITIONAL SERVICES: Additional Services to be perfonned by FNI, if authorized by OWNER, which are not
included in the above described basic services, are described as follows:
A. GIS mapping services or assistance with these services.
B.
Making revisions to drawings, specifications or other documents when such revisions are 1) not consistent
with approvals or instructions previously given by OWNER or 2) due to other causes not solely within the
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C. Preparing applications and supporting documents for government grants, loans, or planning advances and
providing data for detailed applications.
D. Preparing data and reports for assistance to OWNER in preparation for hearings before regulatory agencies,
courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and preparations
therefore before any regulatory agency, court, arbitration panel or mediator.
E. Assisting OWNER in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards,
or other legal and/or administrative proceedings in the defense or prosecution of claims disputes with
Contractor( s ).
F. Performing investigations, studies and analyses of substitutions of equipment and/or materials or deviations
from the drawings and specifications.
G. Assisting OWNER in the defense or prosecution of litigation in connection with or in addition to those
services contemplated by this AGREEMENT. Such services, if any, shall be furnished by FNI on a fee basis
negotiated by the respective parties outside of and in addition to this AGREEMENT.
H. Design, contract modifications, studies or analysis required to comply with local, State, Federal or other
regulatory agencies that become effective after the date of this agreement.
1. Visits to the site in excess of the number of trips included in Article I for periodic site visits, coordination
meetings, or contract completion activities.
J. Providing basic or additional services on an accelerated time schedule. The scope of this service include cost
for overtime wages of employees and consultants, inefficiencies in work sequence and plotting or
reproduction costs directly attributable to an accelerated time schedule directed by the OWNER.
K. Preparing statements for invoicing or other documentation for billing other than for the standard invoice for
services attached to this professional services agreement.
ARTICLE III
TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this
AGREEMENT and agrees to complete the services in accordance with the following schedule:
· Submit vulnerability assessment certification and summary report to the Environmental
Protection Agency by December 1, 2003.
. Submit emergency operations plan certification to the Environmental Protection Agency and
the final Emergency Operations Plan by June 1, 2004.
IfFNI's services are delayed through no fault ofFNI, FNI shall be entitled to adjust contract schedule consistent with
the number of days of delay. These delays may include but are not limited to delays in OWNER or regulatory
reviews, delays on the flow of information to be provided to FNI, governmental approvals, etc. These delays may
result in an adjustment to compensation as outlined on the face ofthis AGREEMENT and in Attachment CO.
FNI agrees to the City withholding retainage fee of 10% from each invoice to ensure prompt delivery of items
described in Article I, in accordance with Article III. Should FNI fail to deliver these items due to factors that FNI
controls, then the retain age will forfeit to City. Otherwise, FNI will be awarded retainage for providing deliverables
by the specified time.
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ARTICLE IV
RESPONSmILITIES OF OWNER: OWNER shall perfonn the following in a timely manner so as not to delay the
services of FNI:
A. All OWNER representatives or designated personnel involved in this evaluation and in utilizing the Risk
Assessment Methodology for Water (RAM-WSM), developed by SANDIA (operator of Sandia National
Laboratories under Contract Number DE-AC04-94AL85000 for the U.S. Department of Energy) and
pursuant to the American W ater Works Association's (A WW A) obligation to SANDIA and FNI's obligation
to A WW A, must sign a "NON DISCLOSURE AGREEMENT". This is necessary for FNI to conduct the
assessment.
B. Designate in writing a person to act as OWNER's representative with respect to the services to be rendered
under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive
infonnation, interpret and define OWNER's policies and decisions with respect to FNI's services for the
Project.
C. Provide all criteria and full infonnation as to OWNER's requirements for the Project, including design
objectives and constraints, space, capacity and perfonnance 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.
D. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including previous
reports and any other data relative to design or construction of the Project.
E. Arrange for access to and make all provisions for FNI to enter upon public and private property as required
for FNI to perform services under this AGREEMENT.
F. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by
FNI, obtain advice of an attorney, insurance counselor and other consultants as OWNER deems appropriate
for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to
delay the services of FNI.
G. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such
approvals and consents fÌ'om others as may be necessary for completion of the Project.
H. Provide such accounting, independent cost estimating and insurance counseling services as may be required
for the Project, such legal services as OWNER may require or FNI may reasonably request with regard to
legal issues pertaining to the Project including any that may be raised by Contractor( s), such auditing service
as OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under
the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s)
are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishing and
performing the work.
1. Give prompt written notice to FNI whenever OWNER observes or otherwise becomes aware of any
development that affects the scope or timing of FNI's services.
J. Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of this
AGREEMENT or other services as required.
K. Bear all costs incident to compliance with the requirements of this Article IV.
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ARTICLE V
DESIGNATED REPRESENTATIVES: FNI and OWNER designate the following representatives:
Owner's Designated Representative-
FNI's Project Manager-
FNI's Accounting Representative -
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Mike Curtis, P.E., Director of Public Works
7301 N.E. Loop 820
North Rich1and Hills, Texas 76180
Phone: 817-427-6400
Fax: 817-427-6404
E-mail: mcurtis@nrhtx.com
Tina E. Hanson, P .E.
4055 International Plaza, Suite 200
Fort Worth, Texas 76109-4895
Phone: 817-735-7349
Fax: 817-735-7492
E-mail: teh@freese.com
Jana V. Collier
4055 International Plaza, Suite 200
Fort Worth, Texas 76109-4895
Phone: 817-735-7354
Fax: 817-735-7496
E-mail: jvc@freese.com
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ATTACHMENT CO
COMPENSATION
LUMP SUM WITH ADDITIONAL WORK BASED ON COST TIMES MULTIPLIER
A. Basic Services: Compensation to FNI for the Basic Services in Attachment SC shall be the lump sum of
$43,000.00. IfFNI sees the Scope of Services changing so that additional services are needed, including
but not limited to those services described as Additional Services in Attachment SC, FNI will notify
OWNER for OWNER's approval before proceeding. Additional Services shall be computed based on the
Schedule of Charges.
B. Schedule of Chare:es for Additional Work:
Staff Member
Salary Cost Times Multiplier of 2.3
Resident Representative
Salary Cost Times Multiplier of2.0
Salary Cost is defined as the cost of salaries (including sick leave, vacation, and holiday pay applicable
thereto) plus unemployment and payroll taxes and contributions for social security, employment
compensation insurance, retirement benefits, medical and other insurance, and other miscellaneous
benefits.
Other Direct Expenses
Actual Cost Times Multiplier of 1.15
Other direct expenses shall include outside printing and reproduction expense, communication expense,
travel, transportation and subsistence away :trom Fort Worth and other miscellaneous expenses directly
related to the work, including costs of laboratory analysis, test, and other work required to be done by
independent persons other than staff members. For CAD services performed m-house by non-FNI
employees where FNI provides workspace and equipment to perform such services, these services will be
billed at cost times a multiplier of2.0. This markup approximates the cost to FNI if an FNI employee was
performing the same or similar services.
Rates for In-house Services
Computer and CAD
Calconip Plotter
PC CAD Stations
Interpro
PC Stations
VAX Computer
$10.00 per connect hour
$12.50 per connect hour
$ 8.00 per connect hour
$20.00 per connect hour
Bond $ 2.00 per plot
Color $ 3.50 per plot
Vellum $ 4.00 per plot
Mylar $10.00 per plot
Print Shop
Bluelines
Offset and Xerox Copies
Offset and Xerox Copies
GBC Binding (Regular Cover)
GBC Binding (Emboss. Cover)
Tape Binding (Regular Cover)
Tape Binding (Emboss. Cover)
$ 0.07 per square foot
$ 0.07 per single side copy
$ 0.14 per double side copy
$ 2.00 per book
$ 4.00 per book
$ 1.75 per book
$ 3.75 per book
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NONDISCLOSURE AGREEMENT
In as much as Freese and Nichols is obligated not to disclose information outside of our Agreement for
Professional Services with the City of North Richland Hills. City of North Richland Hills shall not disclose
information subject to the applicable areas of the attached Nondisclosure Agreement.
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Date
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01-01-02
ATTACHMENT TC
TERMS AND CONDITIONS OF AGREEMENT
1. DEFINITIONS: The term Owner as used herein refers to the Citv of North Richland Hills . The term FNI as used
herein refers to Freese and Nichols, Inc., its employees and agents; also its subcontractors and their employees and agents. As
used herein, Services refers to the professional services performed by Freese and Nichols pursuant to the AGREEMENT.
2. CHANGES: Owner, without invalidating the AGREEMENT, may order changes within the general scope ofthe WORK
required by the AGREEMENT by altering, adding to and/or deducting from the WORK to be performed. If any change under
this clause causes an increase or decrease in FNI's cost of, or the time required for, the performance of any part of the Services
under the AGREEMENT, an equitable adjustment will be made by mutual agreement and the AGREEMENT modified in
writing accordingly.
3. TERMINATION: The obligation to provide services under this AGREEMENT may be terminated by either party upon ten
days' written notice. In the event oftermination, FNI will be paid for all services rendered and reimbursable expenses incun'ed
to the date of termination and, in addition, all reimbursable expenses directly attributable to termination.
4. CONSEQUENTIAL DAMAGES: In no event shall FNI or its subcontractors be liable in contract, tort, strict liability,
warranty, or otherwise for any special, indirect, incidental or consequential damages, such as loss of product, loss of use of the
equipment or system, loss of anticipated profits or revenue, non-operation or increased expense of operation or other
equipment or systems.
5. INFORMATION FURNISHED BY OWNER: Owner will assist FNI by placing at FNI's disposal all available information
pertinent to the Project including previous reports and any other data relative to design or construction of the Project. FNI
shall have no liability for defects or negligence in the Services attributable to FNI's reliance upon or use of data, design
criteria, drawings, specifications or other information furnished by Owner and Owner agrees to indemnify and hold FNI
harmless from any and all claims and judgments, and all losses, costs and expenses arising therefrom. FNI shall disclose to
Owner, prior to use thereof, defects or omissions in the data, design criteria, drawings, specifications or other information
furnished by Owner to FNI that FNI may reasonably discover in its review and inspection thereof.
6. INSURANCE: FNI shall provide to Owner certificates of insurance which shall contain the following minimum coverage
(All limits in thousands):
Commercial General Liability
General Aggregate $2,000
Workers' Compensation
Each Accident $500
Automobile Liability (Any Auto)
CSL $1,000
Professional Liability
$3,000 Annual Aggregate
7.
SUBCONTRACTS: If, for any reason, at any time during the progress of providing Services, Owner determines that any
subcontractor for FNI is incompetent or undesirable, Owner will notify FNI accordingly and FNI shall take immediate
steps for cancellation of such subcontract. Subletting by subcontractors shall be subject to the same regulations. Nothing
contained in the AGREEMENT shall create any contractual relation between any subcontractor and Owner.
8.
OWNERSHIP OF DOCUMENTS: All drawings, reports data and other project information developed in the execution
of the Services provided under this AGREEMENT shall be the property of the Owner upon payment of FNI's fees for
services. FNI may retain copies for record purposes. Owner agrees such documents are not intended or represented to be
suitable for reuse by Owner or others. Any reuse by Owner or by those who obtained said documents from Owner without
written verification or adaptation by FNI will be at Owner's sole risk and without liability or legal exposure to FNI, or to
FNI's independent associates or consultants, and Owner shall indemnify and hold harmless FNI and FNI's independent
associates and consultants from all claims, damages, losses and expenses including attorneys' fees arising out of or
resulting therefrom. Any such verification or adaptation will entitle FNI to further reasonable compensation. FNI may
reuse all drawings, report data and other project information in the execution of the Services provided under this
AGREEMENT in FNI's other activities. Any reuse by FNI will be at FNI's sole risk and without liability or legal exposure
to Owner, and FNI shall indemnify and hold harmless Owner from all claims, damages, losses and expenses including
attorneys' fees arising out of or resulting therefrom.
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9. POLLUTANTS AND HAZARDOUS WASTES: It is understood and agreed that FNI has neith~r created nor
contributed to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous
substance or condition at the site, if any, and its compensation hereunder is in no way commensurate with the potential risk
of injury or loss that may be caused by exposures to such substances or conditions. The parties agree that in performing
the Services required by this AGREEMENT, FNI does not take possession or control of the subject site, but acts as an
invitee in performing the services, and is not therefore responsible for the existence of any pollutant present on or
migrating from the site. Further, FNI shall have no responsibility for any pollutant during clean-up, transportation, storage
or disposal activities.
10. OPINION OF PROBABLE COSTS: FNI will furnish an opinion of probable project development cost based on
present day cost, but does not guarantee the accuracy of such estimates. Opinions of probable cost, financial evaluations,
feasibility studies, economic analyses of alternate solutions and utilitarian considerations of operations and maintenance
costs prepared by FNI hereunder will be made on the basis of FNI's experience and qualifications and represent FNI's
judgment as an experienced and qualified design professional. It is recognized, however, that FNI does not have control
over the cost of labor, material, equipment or services furnished by others or over market conditions or contractors'
methods of determining their prices.
11. CONSTRUCTION REPRESENTATION: If required by the AGREEMENT, FNI will furnish Construction
Representation according to the defined scope for these services. FNI will observe the progress and the quality of work to
determine in general if the work is proceeding in accordance with the Contract Documents. In performing these services,
FNI will endeavor to protect Owner against defects and deficiencies in the work of Contractors; FNI will report any
observed deficiencies to Owner, however, it is understood that FNI does not guarantee the Contractor's performance, nor
is FNI responsible for the supervision of the Contractor's operation and employees. FNI shall not be responsible for the
means, methods, techniques, sequences or procedures of construction selected by the Contractor, or the safety precautions
and programs incident to the work of the Contractor. FNI shall not be responsible for the acts or omissions of any person
(except his own employees or agent) at the Project site or otherwise performing any of the work of the Project. If Owner
designates a person to serve in the capacity of Resident Project Representative who is not a FNI's employee or FNI's
agent, the duties, responsibilities and limitations of authority of such Resident Project Representative(s) will be set forth in
writing and made a part of this AGREEMENT before the Construction Phase of the Project begins.
12. PAYMENT: Progress payments may be requested by FNI based on the amount of services completed. Payment for the
services ofFNI shall be due and payable upon submission of a statement for services to OWNER. Statements for services
shall not be submitted more frequently than monthly. Any applicable new taxes imposed upon services, expenses, and
charges by any governmental body after the execution of this AGREEMENT will be added to FNI's compensation.
If OWNER fails to make any payment due FNI for services and expenses within thirty (30) days after receipt of FNI's
statement for services therefore, the amounts due FNI will be increased at the rate of one percent (1 %) per month from
said thirtieth (30th) day, and, in addition, FNI may, after giving seven (7) days' written notice to OWNER, suspend
services under this AGREEMENT until FNI has been paid in full, all amounts due for services, expenses and charges.
13. ARBITRATION: No arbitration arising out of, or relating to, this AGREEMENT involving one party to this
AGREEMENT may include the other party to this AGREEMENT without their approval.
14. SUCCESSORS AND ASSIGNMENTS: OWNER and FNI each are hereby bound and the partners, successors,
executors, administrators and legal representatives of OWNER and FNI 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.
Neither OWNER nor FNI shall assign, sublet or transfer any rights under or interest in (including, but without limitation,
moneys that may become due or moneys that are due) this AGREEMENT without the written consent of the other, except
to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be 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. Nothing contained in this paragraph
shall prevent FNI from employing such independent associates and consultants as FNI may deem appropriate to assist in
the performance of services hereunder.
15. PURCHASE ORDERS: If a Purchase Order is used to authorize FNI's Services, only the terms, conditions/instructions
typed on the face of the Purchase Order shall apply to this AGREEMENT. Should there be any conflict between the
Purchase Order and the terms ofthis AGREEMENT, then this AGREEMENT shall prevail and shall be determinative of
the conflict.
o~
~ City Secretary Office
~ Official Record Copy