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1290 Extension of 41st & 43rd Street & Infrastructure Improvements Olsson Associates
BILL NO. 2014- 017 ORDINANCE NO. 1,290 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN NORTHPOINT DEVELOPMENT, LLC AND OLSSON ASSOCIATES, INC. FOR PRINCIPAL ENGINEERING SERVICES IN CONNECTION WITH THE EXTENSIONS OF 41 AND 43 STREETS AND RELATED PUBLIC INFRASTRUCTURE IMPROVEMENTS LOCATED IN HORIZONS EAST WHEREAS, Briarcliff Realty, LLC ( "Briarcliff Realty ") and the City entered into that certain Master Development Agreement dated May 10, 2011, as subsequently amended ( "MDA "), to provide for the development of an approximately 260 acre tract of land within an area known as Horizons East; and WHEREAS, pursuant to Section 5.1 of the MDA, Briarcliff Realty selected Olsson Associates, Inc. ( "Olsson ") as Principal Engineer for the Infrastructure Improvements (as such terms are defined in the MDA) and the City approved such selection; and WHEREAS, Briarcliff Realty changed its name to BR NorthPoint, LLC, and pursuant to Section 12.5(b) of the MDA, assigned all its rights and obligations under the MDA, but not its rights and obligations under the MDA First Amendment, to Briarcliff Horizons, LLC; and WHEREAS, on or about February 13, 2012, Briarcliff Horizons, LLC, filed articles of amendment with the Missouri Secretary of State changing its name to Riverside Horizons, LLC ( "RH "); and WHEREAS, RH, pursuant to Section 12.5(b) of the MDA, assigned all of its duties and obligations to construct and complete the Infrastructure Improvements and other public improvements as set forth in Section 3 of the MDA to Northpoint Development, LLC ( "Northpoint "); and WHEREAS, the City and Northpoint are contemplating an amendment of the specifications of certain Infrastructure Improvements, including the extensions of 41 Street and 43 Street and related public infrastructure improvements in connection therewith, and desire to retain Olsson for engineering services related to such amended specifications of Infrastructure Improvements as required by the MDA; and WHEREAS, after evaluation and analysis, Northpoint has recommended that a Letter Agreement For Professional Services ( "Services Agreement "), in the form attached hereto and incorporated herein as Exhibit A, be entered into with Olsson for the provision of services as such services are detailed within said Services Agreement and which shall be consistent with the laws of the United States, State of Missouri, the City Code and the MDA; and WHEREAS, the Board of Aldermen has determined that the approval by the City of the Services Agreement referenced herein is in the best interests of the City as it fulfills a public purpose, will further the growth of the City, facilitate the orderly development of the entire Horizons site, improve the environment of the City, foster increased economic activity within the City, increase employment opportunities within the City, enable the City to direct the development of the Horizons site, and is otherwise in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: BILL NO. 2014 -017 ORDINANCE NO. I29Q SECTION 1. SERVICES AGREEMENT APPROVED. The approval by the City of said Services Agreement with Olsson for the amended specifications of the Infrastructure Improvements referenced herein is in the best interest of the City as it fulfills a public purpose, will further the growth of the City, facilitate the orderly development of the entire Horizons site, improve the environment of the City, foster increased economic activity within the City, increase employment opportunities within the City, enable the City to direct the development of the Horizons site, and otherwise be in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers, and said Services Agreement is hereby approved. SECTION 2. SEVERABILITY CLAUSE. The provisions of this Ordinance are severable and if any provision hereof is declared invalid, unconstitutional or unenforceable, such determination shall not affect the validity of the remainder of this Ordinance. SECTION 3. EFFECTIVE DATE. This Ordinance shall be in full force and effect upon and after its passage and approval. BE IT REMEMBERED that the above was read two times by heading only, PASSED AND APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of the City of Riverside, Missouri, this J4 uday of March, 2014. • If.." g 4' • Kathleen L. Rose, Mayor ;ATTEST: c " • - a7 it.p Robin Littrell, Cit Clerk Approved as to form: Sp‘ ce e Britt & Browne LLP S- -ecial Cou'sel to the City y Joe =-.nar BILL NO. 2014- 017 ORDINANCE NO. EXHIBIT A [SERVICES AGREEMENT] LETTER AGREEMENT FOR PROFESSIONAL SERVICES February 14, 2014 Riverside Horizons, LLC Attn: Mark Pomerenke 5015 Canal St, Ste 200 Riverside, Missouri 64150 Re: LETTER AGREEMENT FOR PROFESSIONAL SERVICES Infrastructure Phase 2 — Roadway Extension (the "Project') Riverside, Missouri Dear Mr. Pomerenke: It is our understanding that Riverside Horizons, LLC ( "Client ") requests Olsson Associates, Inc. ( "Olsson ") to perform the following services described herein pursuant to the terms of this Letter Agreement for Professional Services, Oisson's General Provisions and any exhibits attached hereto (all documents constitute and are referred to herein as the "Agreement ") for the Project. Developer has selected Olsson as the Principal Engineer for the infrastructure improvements, as described in the Master Developer Agreement, dated May 10, 2011. Upon acceptance of this proposal, Olsson shall assume the responsibilities of Principal Engineer according to the scope of work contained herein. The city is and shall be made specific a specific third party beneficiary of this entire agreement and any amendment hereafter. Copies of all work production shall be timely provided to the city upon request. Olsson has acquainted itself with the information provided by Client relative to the Project and based upon such information offers to provide the services described below for the Project. Client warrants that it is either the legal owner of the property to be improved by this Project or that Client is acting as the duly authorized agent of the legal owner of such property. Client acknowledges that it has reviewed the General Provisions and any exhibits attached hereto, which are expressly made a part of and incorporated into the Agreement by this reference. In the event of any conflict or inconsistency between this Letter Agreement, and the General Provisions regarding the services to be performed by Olsson, the terms of the General Provisions shall take precedence. Olsson shall provide the following services ( "Scope of Services ") to Client for the Project: as more specifically described in "Scope of Services" attached hereto. Should Client request work in addition to the Scope of Services, Olsson shall invoice Client for such additional services (Optional Additional Services) at the standard hourly billing labor rate charged for those Page 1 of 3 employees actually performing the work, plus reimbursable expenses if any. Olsson shall not commence work on Optional Additional Services without Client's prior written approval. Olsson agrees to provide all of its services in a timely, competent and professional manner, in accordance with applicable standards of care, for projects of similar geographic location, quality and scope. SCHEDULE FOR OLSSON'S SERVICES Unless otherwise agreed, Olsson expects to perform its services under the Agreement as follows: Anticipated Start Date: Upon acceptance of this agreement Anticipated Completion Date: 45 days for design services; field services contingent upon construction schedule Olsson will endeavor to start its services on the Anticipated Start Date and to complete its services on the Anticipated Completion Date. However, the Anticipated Start Date, the Anticipated Completion Date, and any milestone dates are approximate only, and Olsson reserves the right to adjust its schedule and any or all of those dates at its sole discretion, for any reason, including, but not limited to, delays caused by Client or delays caused by third parties. COMPENSATION Client shall pay to Olsson for the performance of the Scope of Services a fixed fee in the amounts listed in attached [name of Exhibit] plus reimbursable expenses in accordance with the Reimbursable Expense Schedule also attached to this Agreement. Olsson shall submit invoices on a monthly basis, no later than the first working day of the following month, and payment is due within 30 calendar days of invoice date. TERMS AND CONDITIONS OF SERVICE We have discussed with you the risks, rewards and benefits of the Project, the Scope of Services, and our fees for such services and the Agreement represents the entire understanding between Client and Olsson with respect to the Project. The Agreement may only be modified in writing signed by both parties. Clients designated Project Representative shall be Mark Pomerenke. If this Agreement satisfactorily sets forth your understanding of our agreement, please sign in the space provided below. Retain one original for your files and retum an executed original to Olsson. This proposal will be open for acceptance for a period of 30 days from the date set forth above, unless changed by us in writing. OLSSON ASSOCIATES, INC. By ��6avid Eickman, PE Darren Hennen Page 2 of 3 By signing below, you acknowledge that you have full authority to bind Client to the terms of the Agreement. If you accept the terms set forth herein, please sign: NORTHPOINT DEVELOPMENT, LLC By " A VE gnature Print Name 4 iSe'iueri&c.- Title l�/ - i 1 1/4 141 / 01 ) Dated W/ Page 3 of 3 SCOPE OF SERVICES This exhibit is hereby attached to and made a part of the Letter Agreement for Professional Services dated February 14, 2014 between Riverside Horizons, LLC ( "Client ") and Olsson Associates ( "Olsson ") providing for professional services. Olsson's Scope of Services for the Agreement is indicated below. PROJECT DESCRIPTION AND LOCATION Project will be located at: Riverside, Missouri Project Description: Infrastructure Phase 2 — Roadway Extension SCOPE OF SERVICES Olsson shall provide the following services (Scope of Services) to Client for the Project: DESIGN SERVICES Phase 100 — Investigative Services Task 101 — Surveying Field teams will produce a design survey for the proposed site for use in preparing final engineering plans. Survey area shall consist of a 60' wide corridor centered on the proposed roadway alignments (approximately 3,000 feet in total length). Survey shall include contours at a 1' vertical interval and any improvements or utilities located within the corridor. Boundary Surveys and /or platting will not be included as part of this task. Fee $800 Construction staking is provided as an alternative service. Fee (two trips) $2,000 Sanitary Sewer As - Built data collection (Rims & Flowlines). Fee $300 Task 102 — Geotechnical Olsson will prepare a geotechnical report utilizing four new borings to ten feet with geotechnical recommendations, within the proposed roadways. Borings will be supplemented with previous information that Olsson has on the project site. Fee $2,500 Phase 200 — Design Services The preparation of construction documents shall be based upon the approved final roadway plans. A substantial change required by the Client once final design has begun or a major change in the site plan requiring a significant redesign, shall be considered an additional service. Olsson expects that a single roadway package will be issued. Any additional packages will be considered additional services. Task 201 — Land Disturbance /Mass Grading Documents Update the design and preparation of erosion control plans within the entire development in accordance with local and state requirements. Fee $6,000 Page 1 of 9 Task 202 — Stormwater Pollution Prevention Plan (SWPP & NPDES Permit) Prepare and assist with processing an updated NPDES permit and Stormwater Pollution Prevention Plan for the site construction. Fee $5,000 Task 203 — Roadway Improvements Provide public street plans for the construction of Infrastructure Phase 2. The street plans will include the design of a 40 foot wide roadway with ribbon curbing. Drainage is anticipated to sheet flow from the roadway to the adjacent drainage swales. Plans include the extension of W 43r Street for approximately 1,450 feet, and the extension of NW 41" Street of 1,400 feet. Plans will be designed in accordance with the City of Riverside requirements. Fees shown herein include the preparation of as -built documents. Fees indicated assume that one set of construction documents will be prepared for the length of the roadway indicated above. Separation into multiple packages will be additional services. Plans will include the following: • Title and general layout sheets • Typical sections • Street plan and profiles • Pavement markings — to include existing roadways of 41 42 "d , 43 and Linden Streets • Permanent street signage • Construction traffic control plans • Erosion control plans • Utility plan /coordination and sleeving plan for future crossings • Lighting design Fee $22,000 Task 203 — Public Water Service Line Extension Coordination Design of public water service line extension will be completed by Missouri American Water (MAW). Olsson will provide MAW with general layout, utility plans, and water main location. Fee $5,000 Task 204 — Public Sanitary Sewer Service Line Plans Design of public sanitary sewer extension plans for will include a single main extended from the existing 30" interceptor to service Lot 6 and 7 of Riverside Horizons Industrial 10 East Final Plat. Plans will be designed in accordance with the City of Riverside and KCMO requirements. Fees shown herein include the preparation of preliminary and final design documents, and creating as -built documents. Fee $8,000 Task 205 — Final Specifications Olsson will prepare technical specifications for the proposed construction work and for equipment and materials required under the Agreement. The City of Riverside will provide frontend documents for technical specifications. Fee $8,000 Page 2 of 9 Phase 300 — Bid Phase Services (optional) Task 301 - Prepare Notice to Bidders and Issue Documents Olsson will coordinate the issuance of notices to bidders and the production and distribution of bidding documents. Notices will be placed in the official publications directed by the Client, and in bidding services known to provide data to contractors in the area. In addition, invitations will be mailed directly to contractors whom Olsson and /or the Client know will be interested in the project. Documents will be available for inspection at Olsson offices. Olsson will coordinate answering questions raised by bidders. Addenda will be prepared, if needed, to provide clarification to questions. The Client will be informed on a regular basis of project changes resulting from bidders' questions. Fee $2,000 Task 302 - Review and Evaluate Bids Olsson will attend the bid opening. Bids properly received will be reviewed. Inconsistencies or irregularities found in the bids will be reported to the Client. Olsson will prepare a bid tabulation of bids received and will make the bid tabulation available to bidders. Olsson will evaluate the bids and make a written recommendation to the Client concerning contract award. Fee $1,000 Phase 400 — Construction Services Task 401 - Construction Period Services Review of shop drawings for Civil related items, responding to related RFI's and attending meetings. Please note this scope does not include fulltime construction administration or observation services. This is limited to monthly pay application certification and bundling of construction and inspection reports and statements of compliance. Hourly Fee Task 402 — Construction Testing This proposal is for the construction testing during the roadway construction period. Olsson shall perform professional services as requested by Client pursuant to the conditions provided herein. These services will include construction observation and testing to fill placement during roadway site preparation. We have assumed that we will test fill on a part-time basis, as required to ensure application of standards. Materials Testing Testing will be needed as roads are re- graded on Horizons East Streets "B" and „ Olsson's field technicians will provide materials testing services for fill placement (soil fill, CKD treated subgrade, and baserock), utility trench backfill, pavement Page 3 of 9 subgrades, and asphaltic concrete pavement. We propose to provide our observation and testing services in the following manner: Fill Placement/Utility Trench Backfill — Prior to fill placement, subgrades within the alignments of Streets "B" and "E" will be stripped of vegetation, topsoil, and deleterious material. Representatives of Olsson will observe the stability and moisture content of the subgrades. The subgrades will be proof rolled with a fully loaded tandem axle dump truck. The thickness of the base rock for Street "E" will be evaluated in shallow test pits Samples of materials proposed for use as structural fill and /or utility trench backfill will be obtained for laboratory testing. Laboratory tests, including standard Proctors and Atterberg limits tests, will be performed to classify and determine physical properties of the proposed fill /backfill materials. Olsson will observe and test structural soil fill, CKD treated subgrade soils, and baserock placed within the alignments of Streets "B" and "E" and within segments of the utility trenches backfilled within proposed pavement areas. Pavement Subgrades — Olsson's field personnel will evaluate pavement subgrades with respect to stability and moisture content prior to the construction of the pavements. Subgrades will be proof rolled with a fully loaded tandem axle dump truck. The general contractor superintendent should schedule subgrade evaluations within 48 -hours of paving or following any significant weather event that could affect the performance of the pavement subgrade. Subgrades should be re- observed if weather conditions change or if construction of the on -grade slab and /or pavements is delayed more than 48 -hours after initial observation. Asphaltic Concrete Pavements — Field density tests will be performed on the base and surface courses of asphaltic concrete pavements. To evaluate results of the field density tests, samples of the hot mix delivered to the project site will be obtained and Marshall density tests will be performed in our laboratory. Reporting - Olsson's field professionals will prepare typed field reports summarizing each day's field observations, presenting test results, and detailing items not in compliance with the project drawings and/or specifications. Draft copies of the field reports will be provided on a daily basis to the designated field representative if requested. Field reports will be reviewed by our project engineer and summarized in bi- weekly letters transmitted to the Client, Architect, Structural Engineer, General Contractor and Building Official. Olsson is not responsible for the Contractor's means or methods and does not have the obligation or authority to stop Contractor's work. Olsson's responsibility as special inspector is to report our field observations and test results to the Contractor and Client as provided herein. Following completion of the project, Olsson will prepare a final summary report stating its opinion with regard to whether the portions of the work that were observed, inspected and /or tested were in compliance with the project specifications. Page 4 of 9 Street "B" Fill Placement 32 Hrs Technician - Soil Fill © $45.00 /hr $1,440 32 Hrs Technician - CKD Treated Subgrade© $45.00 /hr $1,440 16 Hrs Technician - Base Rock @ $45.00 /hr $ 720 1 Standard Proctor © $120.00 /each $ 120 1 Atterberg Limits @ $65.00 /each $ 65 16 Trips © $50.00/trip $ 800 Utility Trench Backfill 16 Hrs Technician - Storm Sewer © $45.00 /hr $ 720 1 Standard Proctor © $120.00 /each $ 120 1 Atterberg Limits © $65.00 /each $ 65 4 Trips © $50.00/trip $ 200 Asphaltic Concrete Pavements 24 Hrs Technician - Subgrades @ $45.00 /hr $1,080 2 Marshall Density © $130.00 /each $ 260 6 Trips © $50.00/trip $ 300 Street "B" Subtotal $7,330 Project Engineering and Administration 6 Hrs Project Engineer © $115.00/hr $ 690 4 Hrs Project Administration @ $45.00 /hr $ 180 Street "B" Total $8,200 Street "E" Fill Placement 16 Hrs Technician - Base Rock @ $45.00 /hr $ 720 4 Trips © $50.00/trip $ 200 Utility Trench Backfill 16 Hrs Technician - Storm Sewer © $45.00/hr $ 720 1 Standard Proctor © $120.00 /each $ 120 1 Atterberg Limits © $65.00 /each $ 65 5 Trips © $50.00/trip $ 250 Asphaltic Concrete Pavements 16 Hrs Technician - Subgrades @ $45.00 /hr $ 720 24 Hrs Technician - Asphaltic Concrete @ $45.00 /hr $1,080 2 Marshall Density © $130.00 /each $ 260 10 Trips © $50.00/trip $ 500 Street "E" Subtotal $4,635 Project Engineering and Administration 5 Hrs Project Engineer @ $115.00/hr $575 2 Hrs Project Administration @ $45.00 /hr $90 Page 5 of 9 Street "E" Total $5,300 Materials Testing Total Fee $13,500 Task 403 — Construction Observation Services and Certification 1. Perform full -time construction observation of construction operations, document the work in accordance with the applicable construction contract documents and specifications, and reject such work and materials that do not comply with the contract documents. 2. Perform field operations in accordance with accepted safety practices. 3. Provide guidance in the proper interpretation of the Plans and KCMO APWA Specifications. 4. Perform measurements that are involved in the determination of intermediate and final pay quantities, and maintain an item account record. 5. Determine if the work, in general, is proceeding in accordance with the Contract Documents. 6. Keep a diary, log book, or daily record of the Contractor's activities and progress, weather conditions, data relative to questions of Work Directive Changes, Change Orders, changed conditions, list of job site visitors, daily activities and decisions. 7. Assist in the preparation of records as may be required by the City of Riverside, Missouri and applicable to the project, which may include contractor pay estimates, change orders, and explanations of quantity variations. 8. Perform shop drawing review of product and material submittals and verify materials incorporated into the project. 9. Report as necessary, any work that is unsatisfactory, faulty, defective, does not conform to the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test, or approval required to be made. 10. Advise the City of work that OA believes should be corrected, rejected or should be uncovered for observation, or requires special testing, inspection, or approval. 11. Maintain at the job site orderly files for correspondence, reports of job conferences, shop drawings, samples, reproductions of original contract documents including all change orders, field orders, additional drawings issued, clarifications and interpretations of the contract documents, progress reports, and other project related documents. 12. Attend project progress meetings as necessary. 13. Assist in obtaining from the City additional details or information, when required, for proper execution of the work. Assumptions and Exclusions 1. Construction Observer will be provided for 22, 8 -hour days (including drive time). 2. On site testing of concrete, soils and asphaltic concrete to be performed by Olsson's materials testing technicians. 3. Rock and sand products for concrete will be accepted based on certificates of compliance supplied by the contractor and /or the producer. Page 6 of 9 4. Manufactured items shall be accepted based on certificates of compliance, shop drawings, catalog data, etc. where so indicated. 5. Shop Drawing review(s) to be performed by the design engineer. 6. SWPPP documentation and maintenance to be performed by the contractor. 7. Pay Estimates to be produced by the contractor with verification by the on- site observer. 8. As -built surveys and /or as -built plan preparation are not included in this scope. 9. Video inspections of completed storm sewer lines will be performed by others, if required. 10. Waterline bacteria and chlorine testing, flushing and pressure testing will be performed by others. 11. All utility relocations and conflicts will be performed and remedied by others. Construction Observer 32 Fill /Subgrade (4 days) $80.00/hr $2,560 24 Utilites Installed (3 days) $80.00 /hr $1,920 32 CKD Subgrade Treatment (4 days) $80.00 /hr $2,560 24 Base Rock (3 days) $80.00 /hr $1,920 48 Asphaltic Concrete (6 days) $80.00 /hr $3,840 16 Aggregate Shoulders (2 days) $80.00 /hr $1,280 22 Documentation (1 hr /day) $80.00/hr $1,760 10 Progress Meetings (5, 2 -hr meetings) $80.00 /hr $ 800 27 Trips © $50.00/trip $1,350 Subtotal Fee $17,990 Project Engineering and Administration 20 Hrs Project Engineer © $140.00 /hr $2,800 12 Hrs Project Administration © $59.00/hr $ 708 Construction Observation Services and Certification Total Fee $21,498 Phase 500 — Project Team Meetings & Direct Expenses Task 501 — Project Meetings This task includes time charges for travel (if required) and attendance by project staff at project related meetings as requested by the owner, bid meetings, and construction meetings. This will be billed at $125 /hour up to the allowance amount shown below for this task. Hourly Fee Task 502 — Project Expenses Includes all project related reimbursable expenses as defined in Section 4.4 of the General Conditions to this letter agreement. The amount indicated is an allowance and Olsson shall contact Client should the project expenses exceed the amount shown. Reimbursable Page 7 of 9 Task 503 — Infrastructure Certification Upon completion of construction phase services, Olsson, if warranted, will provide a certificate detailing that the project was constructed according to plans and specifications. Fee $800 Project Total Fee (excluding Phase 300 — Bid Phase Services) $95,398 Plus Meetings and Reimbursable Expenses Project Assumptions We have made several assumptions in the preparation of this proposal. These assumptions and subsequent explanations are as follows: • The City of Riverside will complete any environmental mitigation required for Phase 2. • Final Development Plans and Construction Documents will be prepared based on direction from the owner and the approved preliminary and final development plans, respectively. Significant site changes or building modifications at this stage will be considered additional services. • Offsite roadway improvements are not included. • Olsson has assumed that the onsite sanitary main will connect to the public sewer main by gravity. If a force main and lift station are required, Olsson can provide this service under a supplemental agreement. • Downstream storm water improvements are not required. • The current FEMA mapping does not indicate any current floodplain on the property and as such, Olsson has not included any floodplain permitting or modeling in this proposal. Additional Services Not Included in the Above Proposal The following services are not included with this proposal but can be provided under a supplemental agreement if requested. • Off -site Public Improvement Design /Plans other than those listed above. • On -site Public Utility Design /Plans other than those listed above. • Off -site Public Utility Design /Plans • FEMA map revisions • Flood studies • Preparation of CLOMR /LOMR documents or remapping of designated floodplain due to stream obstructions, grading, etc. • Environmental studies • Irrigation design • Construction inspection, other than those listed above • Construction staking • As -built drawings other than those listed above Excluded Services • Architectural design /plans • Mechanical or plumbing design /plans • Landscape lighting • Structural design /plans • Design of entry monumentation • Permitting fees Page 8 of 9 Should Client request work in addition to the Scope of Services, Olsson shall invoice Client for such additional services (Optional Additional Services) at the standard hourly billing labor rate charged for those employees actually performing the work, plus reimbursable expenses if any. Olsson shall not commence work on Optional Additional Services without Client's prior written approval. Olsson agrees to provide all of its services in a timely, competent and professional manner, in accordance with applicable standards of care, for projects of similar geographic location, quality and scope. OLSSON ASSOCIATES, INC. By avid Eickman, PE Darren Hennen If you accept this Scope of Services, please sign: RIVERSIDE HORIZONS, LLC Signature /, Print Name /1/47e, ,/tii �'ib_ / Title (// 04 Affal Dated: 9 7V f, Page 9 of 9 GENERAL PROVISIONS These General Provisions are attached to and made a part of economic evaluations on feasibility studies, appraisals or the respective Letter Agreement or Master Agreement, dated valuations. February 13, 2014 between Riverside Horizons, LLC ( "Client ") and Olsson Associates, Inc. ("Olsson") for professional 2.2.8 Fumishing the services of independent services in connection with the project or projects arising under professional associates or consultants for work beyond the such Letter Agreement or Master Agreement (the °Project(s) "). Scope of Services. As used herein, the term 'this Agreement" refers to these 2.2.9 Services necessary due to the Clients award General Provisions, the applicable Letter Agreement or Master of more than one prime contract for the Project(s); services Agreement, and any other exhibits or attachments thereto as if necessary due to the construction contract containing cost plus they were part of one and the same document. or incentive - savings provisions; services necessary in order to arrange for performance by persons other than the prime SECTION 1— OLSSON'S SCOPE OF SERVICES contractor; or those services necessary to administer Client's contract(s). Olsson's scope of services for the Project(s) is set forth in the applicable Letter Agreement or Master Agreement ( "Scope of 2.2.10 Services in connection with staking out the Services "). work of contractor(s). SECTION 2— ADDITIONAL SERVICES 2.2.11 Services during out -of -town travel or visits to the site beyond those specifically identified in this Agreement. 2.1 Unless otherwise expressly included, Scope of Services does not include the categories of additional services 2.2.12 Preparation of operating and maintenance set forth in Sections 2.2 and 2.3. manuals. 2.2 If Client and Olsson mutually agree for Olsson to 2.2.13 Services to redesign some or all of the perform any optional additional services as set forth in this Project(s). Section 2.2 ( "Optional Additional Services"), Client will provide written approval of the agreed -upon Optional Additional 2.2.14 Preparing to serve or serving as a consultant Services, and Olsson shall perform or obtain from others such or witness or assisting Client with any litigation, arbitration or services and will be entitled to an increase in compensation at other legal or administrative proceeding. rates provided in this Agreement. Olsson may elect not to perfomr all or any of the Optional Additional Services without 2.2.15 Services relating to Construction Observation, cause or explanation: Certification, Inspection, Construction Cost Estimating, project observation, construction management, construction 2.2.1 Preparation of applications and supporting scheduling, construction phasing or review of Contractor's documents for govemmental financial support of the Project(s); performance means or methods. preparation or review of environmental studies and related services; and assistance in obtaining environmental approvals. 2.3 Whenever, in its sole discretion, Olsson determines additional services as set forth in this Section 2.3 are 2.2.2 Services to make measured drawings of or to necessary to avoid a delay in the completion of the Project(s) investigate existing conditions of facilities. ( "Necessary Additional Services "), Olsson shall perform or obtain from others such services without waiting for specific 2.2.3 Services resulting from changes in the general instructions from Client, and Olsson will be entitled to an scope, extent or character of the Project(s) or major changes in increase in compensation for such services at the standard documentation previously accepted by Client where changes hourly billing rate charged for those employees performing the are due to causes beyond Olsson's control. services, plus reimbursable expenses, if any: 2.2.4 Services resulting from the discovery of 2.3.1 Services in connection with work directive conditions or circumstances which were not contemplated by changes and /or change orders directed by the Client to any Olsson at the commencement of this Agreement. Olsson shall contractors. notify Client of the newly discovered conditions or circumstances and Client and Olsson shall renegotiate, in good 2.3.2 Services in making revisions to drawings and faith, the compensation for this Agreement, if amended terms specifications occasioned by the acceptance of substitutions cannot be agreed upon, Olsson may terminate this Agreement proposed by contractor(s); services after the award of each and Olsson shall be paid for its services through the date of contract in evaluating and determining the acceptability of an termination. unreasonable or excessive number of substitutions proposed 2.2.5 Providing renderings or models. by contractor(s); or evaluating an unreasonable or extensive number of claims submitted by contractor(s) or others in 2.2.6 Preparing documents for alternate bids connection with the Project(s). requested by Client. 2.3.3 Services resulting from significant delays, changes or price increases occurring as a direct or indirect 2.2.7 Analysis of operations, maintenance or result of material, equipment or energy shortages. overhead expenses; value engineering; the preparation of rate schedules; eamings or expense statements; cash flow or Page 1 of 8 19- 3868.01 2.3.4 Additional or extended services during 3.4.2 Guarantee access to and make all provisions construction made necessary by (1) work damaged during for Olsson to enter upon public and private property reasonably construction, (2) a defective, inefficient or neglected work by necessary to perform its services on the Project(s). any contractor, (3) acceleration of the progress schedule involving services beyond normal working hours, or (4) default 3.4.3 Provide such legal, accounting, independent by any contractor. cost estimating or insurance counseling services as may be required for the Project(s); any auditing service required in SECTION 3—CLIENT'S RESPONSIBILITIES respect of contractor(s)' applications for payment; and /or any inspection services to determine if contractor(s) are performing 3.1. Client shall provide all criteria and full information as the work legally. to Client's requirements for the Project(s); designate and identify in writing a person to act with authority on Client's 3.4.4 Provide engineering surveys to establish behalf in respect of all aspects of the Project(s); examine and reference points for construction unless specifically included in respond promptly to Olsson's submissions; and give prompt Olsson's Scope of Services. written notice to Olsson whenever Client observes or otherwise becomes aware of any defect in the Olsson's services. 3.4.5 Furnish approvals and permits from all govemmental authorities having jurisdiction over the Project(s). 3.2 Client agrees to pay Olsson the amounts due for services rendered and expenses within thirty (30) days after 3.4.6 If more than one prime contractor is to be Olsson has provided its invoice for such services. In the event awarded the contract for construction, designate a party to Client disputes any invoice item, Client shall give Olsson written have responsibility and authority for coordinating and notice of such disputed item within fifteen (15) days after receipt interfacing the activities of the various prime contractors. of such invoice and shall pay to Olsson the undisputed portion of the invoice according to the provisions hereof. If Client fails to 3.5 Client shall pay all costs incident to obtaining bids or pay any invoiced amounts when due, interest will accrue on proposals from contractor(s). each unpaid amount at the rate of thirteen percent (13 %) per annum from the date due until paid according to the provisions 3.6 Client shall pay all permit application review costs for of this Agreement. Interest shall not be charged on any disputed govemment authorities having jurisdiction over the Project(s). invoice item which is finally resolved in Client's favor. Payment of interest shall not excuse or cure any default or delay in payment 3.7 Contemporaneously with the execution of this of amounts due. Agreement, Client shall designate in writing an individual to act as its duly authorized Project(s) representative. 3.2.1 If Client fails to make any payment due Olsson for services and expenses within thirty (30) days after receipt 3.8 Client shall bear sole responsibility for of Olsson's statement therefore, Olsson may, after giving seven (7) days written notice to Client, suspend services to 3.8.1 Jobsite safety. Neither the professional Client under this Agreement until Olsson has been paid in full activities of Olsson, nor the presence of Olsson or its all amounts due for services, expenses and charges and Client employees or sub - consultants at the Project shall impose any will not obtain any license to any Work Product or be entitled to duty on Olsson relating to any health or safety laws, retain or use any Work Product pursuant to Section 7.1 unless regulations, rules, programs or procedures. and until Olsson has been paid in full and Client has fully satisfied all of its obligations under this Agreement. 3.8.2 Notifying third parties including any 3.3 Payments to Olsson shall not be withheld, postponed governmental agency or prospective purchaser, of the or made contingent on the construction, completion or success existence of any hazardous or dangerous materials located in of the Project(s) or upon receipt by the Client of offsetting or around the Project(s) site. reimbursements or credit from other parties who may have caused the need for additional services. No withholdings, 3.8.3 Providing and updating Olsson with accurate deductions or offsets shall be made from Olsson's information regarding existing conditions, including the compensation for any reason unless and until Olsson has been existence of hazardous or dangerous materials, proposed found to be legally liable for such amounts. Project(s) site uses, any change in Project(s) plans, and all subsurface installations, such as pipes, tanks, cables and 3.4 Client shall also do the following and pay all costs utilities within the Project(s) site. incident thereto: 3.9 Client releases Olsson from liability for any incorrect 3.4.1 Fumish to Olsson any existing and /or required advice, judgment or decision based on inaccurate information borings, probings or subsurface explorations; hydrographic fumished by Client or others. surveys; laboratory tests or inspections of samples, materials or equipment; appropriate professional interpretations of any of 3.10 If reasonable precautions will be inadequate to the foregoing; environmental assessment and impact prevent foreseeable bodily injury or death to persons resulting statements; property, boundary, easement, right -of -way, from a material or substance, including hazardous materials, topographic or utility surveys; property descriptions; and /or encountered on the site, Olsson may immediately stop work in zoning or deed restrictions; all of which Olsson may rely upon the affected area and report the condition to Client. Client shall in performing services hereunder. be solely responsible for retaining independent consultant(s) to determine the nature of the material and to abate or remove the material. Olsson shall not be required to perform any services or work relating to or in the area of such material until Page 2 of 8 19- 3868.01 the material has been removed or rendered harmless and only contractor(s) or any subcontractor(s). Olsson shall sign pre- after approval, if necessary of the govemment agency with printed forn certifications only if (a) Olsson approves the form jurisdiction. of such certification prior to the commencement of its services, (b) such certification is expressly included in the Scope of 3.11 Providing and assuming all responsibility for: Services, (c) the certification is limited to a statement of interpretation of contract documents; Construction professional opinion and does not constitute a warranty or Observations; Certifications; Inspections; Construction Cost guarantee, express or implied. It is understood that any Estimating; project observations; construction management; certification by Olsson shall not relieve the Client or the Client's construction scheduling; construction phasing; and review of contractors of any responsibility or obligation they may have by Contractors performance, means and methods. Client waives industry custom or under any contract. any claims against Olsson and releases Olsson from liability relating to or arising out of such services and agrees, to the 4.4 "Construction Cost Estimate ": An opinion of probable fullest extent permitted by law, to indemnify and hold Olsson construction cost made by Olsson. In providing opinions of harmless from any and all damages, liabilities or costs, probable construction cost, it is recognized that neither the including reasonable attomeys' fees and defense costs, Client nor Olsson has control over the costs of labor, relating to such actions and services. equipment or materials, or over the contractor's methods of determining prices or bidding. The opinion of probable SECTION 4— MEANING OF TERMS construction costs is based on Olsson's reasonable professional judgment and experience and does not constitute 4.1 The °Cost of Construction" of the entire Project(s) a warranty, express or implied, that the contractor's bids or the (herein referred to as "Cost of Construction ") means the total negotiated price of the work on the Project(s) will not vary from cost to Client of those portions of the entire Project(s) designed the Client's budget or from any opinion of probable cost and specified by Olsson, but it will not include Olsson's prepared by Olsson. compensation and expenses, the cost of land, rights -of -way, or compensation for or damages to, properties unless this 4.5 "Day ": A calendar day of 24 hours. The term "days" Agreement so specifies, nor will it include Client's legal, shall mean consecutive calendar days of 24 hours each, or accounting, insurance counseling or auditing services, or fraction thereof. interest and financing charges incurred in connection with the Project(s) or the cost of other services to be provided by others 4.6 "Construction Observation ": If included in the Scope to Client pursuant to Section 3. of Services, such services during construction shall be limited to periodic visual observation and testing of the work to 4.2 The "Salary Costs ": Used as a basis for payment determine that the observed work generally conforms to the mean salaries and wages (base and incentive) paid to all contract documents. Olsson shall not be responsible for Olsson's personnel engaged directly on the Project(s), constant or exhaustive observation of the work. Client including, but not limited to, engineers, architects, surveyors, understands and agrees that such visual observations are designers, draftsmen, specification writers, estimators, other discrete sampling procedures and that such procedures technical and business personnel; plus the cost of customary indicate conditions that exist only at the locations and times the and statutory benefits, including, but not limited to, social observations were performed. Performance of Construction security contributions, unemployment, excise and payroll Observation services does not constitute a warranty or taxes, workers' compensation, health and retirement benefits, guarantee of any type, since even with diligent observation, sick leave, vacation and holiday pay and other group benefits. some construction defects, deficiencies or omissions in the work may occur. Olsson shall have no responsibility for the 4.3 "Certify" or "a Certification ": If included in the Scope means, methods, techniques, sequences or procedures of Services, such services shall be limited to a statement of selected by the contractor or for the contractor's safety Olsson's opinion, to the best of Olsson's professional precautions and programs nor for failure by the contractor to knowledge, information and belief, based upon its periodic comply with any laws or regulations relating to the performance observations and reasonable review of reports and tests or furnishing of any work by the contractor. Client shall hold its created by Olsson or provided to Olsson. Olsson shall not be contractor(s) solely responsible for the quality and completion responsible for constant or exhaustive observation of the work. of the Project(s), including construction in accordance with the Client understands and agrees that any certifications based construction documents. Any duty under this Agreement is for upon discrete sampling observations and that such the sole benefit of the Client and not for any third party, observations indicate conditions that exist only at the locations including the contractor or any subcontractor. Client, or its and times the observations were performed. Performance of designees shall notify Olsson at least twenty -four (24) hours in such observation services and certification does not constitute advance of any field tests and observations required by the a warranty or guarantee of any type, since even with diligent construction documents. observation, some construction defects, deficiencies or omissions in the work may occur. Olsson shall have no 4.7 "Inspect" or "Inspection': If included in the Scope of responsibility for the means, methods, techniques, sequences Services, such services shall be limited to the periodic visual or procedures selected by the contractor(s) or for the observation of the contractor's completed work to permit contractor's safety precautions and programs nor for failure by Olsson, as an experienced and qualified professional, to the contractor(s) to comply with any laws or regulations relating determine that the observed work, generally conforms to the to the performance or fumishing of any work by the contract documents. Olsson shall not be responsible for contractor(s). Client shall hold its contractor(s) solely constant or exhaustive observation of the work. Client responsible for the quality and completion of the Project(s), understands and agrees that such visual observations are including construction in accordance with the construction discrete sampling procedures and that such procedures documents. Any duty under this Agreement is for the sole indicate conditions that exist only at the locations and times the benefit of the Client and not for any third party, including the observations were performed. Performance of such Page 3 of 8 19- 3868.01 observation services does not constitute a warranty or incurred by Olsson in connection with the orderly termination of guarantee of any type, since even with diligent observation, this Agreement. including but not limited to demobilization, some construction defects, deficiencies or omissions in the reassignment of personnel, associated overhead costs, any work may occur. Olsson shall have no responsibility for the fees, costs or expenses incurred by Olsson in preparing or means, methods, techniques, sequences or procedures negotiating any proposals submitted to Client for Olsson's selected by the contractor(s) or for the contractors safety Scope of Services or Optional Additional Services under this precautions and programs nor for failure by the contractor(s) to Agreement and all other expenses directly resulting from the comply with any laws or regulations relating to the performance termination and a reasonable profit of ten percent (10 %) of or furnishing of any work by the contractor(s). Client shall hold Olsson's actual costs (including overhead) incurred. its contractor(s) solely responsible for the quality and completion of the Project(s), including construction in SECTION 6- 13ISPUTE RESOLUTION accordance with the construction documents. Any duty under this Agreement is for the sole benefit of the Client and not for 6.1. Mediation any third party, including the contractor(s) or any subcontractor(s). Client, or its designees, shall notify Olsson at 6,1.1 All questions in dispute under this Agreement least twenty-four (24) hours in advance of any inspections shall be submitted to mediation. On the written notice of either required by the construction documents. party to the other of the election to submit any dispute under this Agreement to mediation, each party shall designate their 4.8 "Record Documents ": Drawings prepared by Olsson representatives and shall meet within ten (10) days after the upon the completion of construction based upon the drawings service of the notice. The parties themselves shall then attempt and other data furnished to Olsson by the Contractor and to resolve the dispute within ten (10) days of meeting. others showing significant changes in the work on the Project(s) made during construction. Because Record 6.1.2 Should the parties themselves be unable to Documents are prepared based on unverified information agree on a resolution of the dispute, and then the parties shall provided by others, Olsson makes no warranty of the accuracy appoint a third party who shall be a competent and impartial or completeness of the Record Documents. party and who shall be acceptable to each party, to mediate the dispute. Any third party mediator shall be qualified to SECTION 6— TERMINATION evaluate the performance of both of the parties, and shall be familiar with the design and construction progress. The third 5.1 Either party may terminate this Agreement, for cause party shall meet to hear the dispute within ten (10) days of their upon giving the other party not less than seven (7) calendar selection and shall attempt to resolve the dispute within fifteen days written notice of default for any of the following reasons: (15) days of first meeting. provided, however, that the notified party shall have the same seven (7) calendar day period in which to cure the default: 6.1.3 Each party shall pay the fees and expenses of the third party mediator and such costs shall be borne equally 5.1.1 Substantial failure by the other party to perform by both parties. in accordance with the terms of this Agreement and through no fault of the terminating party: 6.2 Arbitration or Litigation 5.1.2 Assignment of this Agreement or transfer of the 6.2.1 Olsson and Client agree that from time to time, Project(s) by either party to any other entity without the prior there may be conflicts, disputes and/or disagreements written consent of the other party; between them, arising out of or relating to the services of Olsson, the Project(s), or this Agreement (hereinafter 5.1.3 Suspension of the Project(s) or Olsson's collectively referred to as "Disputes ") which may not be services by the Client for more than ninety (90) calendar days, resolved through mediation. Therefore, Olsson and Client consecutive or in the aggregate. agree that all Disputes shall be resolved by binding arbitration or litigation at the sole discretion and choice of Olsson. If 5.2 In the event of a 'for cause" termination of this Olsson chooses arbitration, the arbitration proceeding shall Agreement by either party, the Client shall, within fifteen (15) proceed in accordance with the Construction Industry calendar days after receiving Olsson's final invoice, pay Olsson Arbitration Rules of the AAA. for all services rendered and all reimbursable costs incurred by Olsson up to the date of termination, in accordance with the 6.2.2 Client hereby agrees that Olsson shall have payment provisions of this Agreement. the right to include Client, by consolidation, joinder or other manner, in any arbitration or litigation involving Olsson and a 5.2.1 In the event of a "for cause" termination of this subconsultant or subcontractor of Olsson or Olsson and any Agreement by Client and (a) a final determination of default is other person or entity, regardless of who originally initiated entered against Olsson under Section 6.2 and (b) Client has such proceedings. fully satisfied all of its obligations under this Agreement, Olsson shall grant Client a limited license to use the Work Product 6.2.3 If Olsson chooses arbitration or litigation, either pursuant to Section 7.1. may be commenced at any time prior to or after completion of the Project(s), provided that if arbitration or litigation is 5.3 The Client may terminate this Agreement for the commenced prior to the completion of the Project(s), the Client's convenience and without cause upon giving Olsson not obligations of the parties under the terms of this Agreement less than seven (7) calendar days written notice. In the event shall not be altered by reason of the arbitration or litigation of any termination that is not the fault of Olsson, the Client being conducted. Any arbitration hearings or litigation shall shall pay Olsson, in addition to payment for services rendered take place in Lincoln, Nebraska, the location of Olsson's home and reimbursable costs incurred, for all expenses reasonably office. Page 4 of 8 19- 3868.01 6.2.4 The prevailing party in any arbitration or signed and sealed original documents shall govern. Olsson litigation relating to any Dispute shall be entitled to recover specifically disclaims all warranties, expressed or implied, from the other party those reasonable attorney fees, costs and including without limitation, and any warranty of merchantability expenses incurred by the prevailing party in connection with or fitness for a particular purpose with respect to any electronic the Dispute. files. It shall be Client's responsibility to confine the accuracy of the information contained in the electronic file and that it SECTION 7— MISCELLANEOUS accurately reflects the information needed by the Client. Client shall not retransmit any electronic files, or any portion thereof, 7.1 Reuse of Documents without including this disclaimer as part of any such transmissions. In addition, Client agrees, to the fullest extent All documents, including drawings, specifications, reports, permitted by law, to indemnify and hold harmless Olsson, its boring logs, maps, field data, data, test results, information, officers, directors, employees and sub consultants against any recommendations, or opinions prepared or furnished by Olsson and all damages, liabilities, claims or costs, including (and Olsson's independent professional associates and reasonable attorney's and expert witness fees and defense consultants) pursuant to this Agreement ( "Work Product"), are costs, arising from any changes made by anyone other than all Olsson's instruments of service, do not constitute goods or Olsson or from any reuse of the electronic files without the products, and are copyrighted works of Olsson. Olsson shall prior written consent of Olsson. retain an ownership and property interest in such Work Product whether or not the Project(s) is completed. If Client has fully 7.3 Construction Cost Estimate satisfied all of its obligations under this Agreement, Olsson shall grant Client a limited license to use the Work Product and Since Olsson has no control over the cost of labor, materials, Client may make and retain copies of Work Product for use in equipment or services furnished by others, or over the connection with the Project(s); however, such Work Product is contractor(s)' methods of determining prices, or over for the exclusive use and benefit of Client or its agents in competitive bidding or market conditions, Olsson's connection with the Project(s), are not intended to inform, Construction Cost Estimate provided for herein is made on the guide or otherwise influence any other entities or persons with basis of Olsson's experience and qualifications and represent respect to any particular business transactions, and should not Olsson's best judgment as an experienced and qualified be relied upon by any entities or persons other than Client or professional engineer, familiar with the construction industry. its agents for any purpose other than the Project(s). Such Work Client acknowledges and agrees that Olsson cannot and does Product is not intended or represented to be suitable for reuse not guarantee proposals or bids and that actual total Project(s) by Client or others on extensions of the Project(s) or on any or construction costs may reasonably vary from Olsson's other Project(s). Client will not distribute or convey such Work Construction Cost Estimate. If prior to the bidding or Product to any other persons or entities without Olsson's prior negotiating phase Client wishes greater assurance as to total written consent which shall include a release of Olsson from Project(s) or construction costs, Client shall employ an liability and indemnification by the third party. Any reuse of independent cost estimator as provided in paragraph 3.4.3. If Work Product without written verification or adaptation by Olsson's Construction Cost Estimate was performed in Olsson for the specific purpose intended will be at Clients sole accordance with its standard of care and was reasonable risk and without liability or legal exposure to Olsson, or to under the total circumstances, any services performed by Olsson's independent professional associates or consultants, Olsson to modify the contract documents to bring the and Client shall indemnify and hold harmless Olsson and construction cost within any limitation established by Client will Olsson's independent professional associates and consultants be considered Optional Additional Services and paid for as from all claims, damages, losses and expenses including such by Client. If, however, Olsson's Construction Cost attorneys' fees arising out of or resulting therefrom. Any such Estimate was not performed in accordance with its standard of verification or adaptation of Work Product will entitle Olsson to care and was unreasonable under the total circumstances and further compensation at rates to be agreed upon by Client and the lowest negotiated bid for construction of the Project(s) Olsson. unreasonably exceeds Olsson's Construction Cost Estimate, Olsson shall modify its work as necessary to adjust the 7.2 Electronic Files Project(s)' size, and/or quality to reasonably comply with the Client's budget at no additional cost to Client. Under such By accepting and utilizing any electronic file of any Work circumstances, Olsson's modification of its work at no cost Product or other data transmitted by Olsson, the Client agrees shall be the limit of Olsson's responsibility with regard to any for itself, its successors, assigns, insurers and all those unreasonable Construction Cost Estimate. claiming under or through it, that by using any of the information contained in the attached electronic file, all users 7.4 Prevailing Wages agree to be bound by the following terms. All of the information contained in any electronic file is the work product and It is Client's responsibility to determine whether the Project(s) instrument of service of Olsson, who shall be deemed the is covered under any prevailing wage regulations. Unless author, and shall retain all common law, statutory law and Client specifically informs Olsson in writing that the Project(s) other rights, including copyrights, unless the same have is a prevailing wage project and is identified as such in the previously been transferred in writing to the Client. The Scope of Services, Client agrees to reimburse Olsson and to information contained in any electronic file is provided for the defend, indemnify and hold harmless Olsson from and against convenience to the Client and is provided in 'as is condition. any liability, including costs, fines and attorneys' fees, resulting The Client is aware that differences may exist between the from a subsequent determination that the Project(s) was electronic files transferred and the printed hard-copy original covered under any prevailing wage regulations. signed and stamped drawings or reports. In the event of a conflict between the signed original documents prepared by Olsson and the electronic files, which may be transferred, the Page 5 of 8 19- 3868.01 7.5 Samples 7.8.3.2 is or becomes publicly available by other than unauthorized disclosures; or All material testing samples shall remain the properly of the Client. If appropriate, Olsson shall preserve samples obtained 7.8.3.3 is independently developed by the no longer than forty-five (45) days after the issuance of any Receiving Party without a breach of this Agreement; or document that includes the data obtained Iron, those samples. After that date, Olsson may dispose of the samples or return 7.8.3.4 is disclosed to third parties by the them to Client at Clients cost. Disclosing Party without restrictions; or 7.6 Standard of Care 7.8.3.5 is received from a third party not subject to any confidentiality obligations. Olsson will strive to perform its services in a manner consistent with that level of care and skill ordinarily exercised by members 7.8.4 In the event that the Receiving Party is of Olsson's profession providing similar services in the same required by law or legal process to disclose any of Information locality under similar circumstances at the time Olsson's of the Disclosing Party, the Receiving Party required to services are performed. This Agreement creates no other disclose such Information shall provide the Disclosing Party representation, warranty or guarantee, express or implied. with prompt oral and written notice, unless notice is prohibited by law (in which case such notice shall be provided as early as 7.7 Force Majeure may be legally permissible), of any such requirement so that the Disclosing Party may seek a protective order or other Any delay in the performance of any of the duties or obligations appropriate remedy. of either party hereto (except the payment of money) shall not be considered a breach of this Agreement and the time 7.8.5 Nothing contained in this Agreement shall be required for performance shall be extended for a period equal construed as altering any rights that the Disclosing Party has in to the period of such delay, provided that such delay has been the Information exchanged with or disclosed to the Receiving caused by or is the result of any acts of God, acts of the public Party, and upon request. the Receiving Party will return all enemy, insurrections, riots, embargoes, labor disputes, Information received in tangible form to the Disclosing Party, or including strikes, lockouts, job actions, boycotts, fires, at the Receiving Party's option, destroy all such Information. If explosions, floods, shortages of material or energy, or other the Receiving Party exercises its option to destroy the unforeseeable causes beyond the control and without the fault Information, the Receiving Party shall certify such destruction or negligence of the party so affected. The affected party shall to the Disclosing Party. give prompt notice to the other party of such cause, and shall take promptly whatever reasonable steps are necessary to 7.8.6 The parties acknowledge that disclosure or use relieve the effect of such cause. of Information in violation of this Agreement could cause irreparable harm for which monetary damages may be difficult 7.8 Confidentiality to ascertain or constitute an inadequate remedy. Each party therefore agrees that the Disclosing Party shall be entitled in In performing this Agreement, the parties may disclose to each addition to its other rights to seek injunctive relief for any other written or oral non - public, confidential or proprietary violation of this Agreement. information, including but not limited to, information of a business, planning, marketing or technical nature and models, 7.8.7 The obligations of confidentiality set forth tools, hardware and software, and any documents, reports, herein shall survive termination of this Agreement, but shall memoranda, notes, files or analyses that contain, summarize only remain in effect for a period of one (1) year from the date or are based upon any proprietary or confidential information the Information is first disclosed. (hereafter referred to as the 'Information "). 7.9 Damage or Injury to Subterranean Structures or 7.8.1 Therefore, Olsson and Client agree that the Utilities, Hazardous Materials, Pollution and party receiving information from the other party to this Contamination Agreement (the "Receiving Party ") shall keep Information confidential and not use the Information in any manner other 7,9.1 To the extent that work pursuant to this than in the performance of this Agreement without prior written Agreement requires any sampling, boring, excavation, ditching approval of the party disclosing Information (the "Disclosing or other disruption of the soil or subsurface at the Site, Olsson Party') unless Client is a public entity and the release of shall confer with Client prior to such activity and Client will be Information is required by law or legal process. responsible for identifying, locating and marking, as necessary, any private subterranean structures or utilities and Olsson 7.8.2 The existence of discussions between the shall be responsible for arranging investigation of public parties, the purpose of this Agreement, and this Agreement subterranean structures or utilities through an appropriate shall be considered Information subject to the confidentiality utility one-call provider. Thereafter, Olsson shall take all provisions of this Agreement. reasonable precautions to avoid damage or injury to subtrerranean structures or utilities which were identified by 7.8.3 Notwithstanding anything to the contrary Client or the one -call provider. Olsson shall not be responsible herein, the Receiving Party shall have no obligation to for any damage, liability or costs, for any property damage, preserve the confidentiality of any Information which: injury or economic loss arising or allegedly arising from damages to subterranean structures or utilities caused by 7.8.3.1 was previously known to the Receiving subsurface penetrations in locations approved by Client and/or Party free of any obligation to keep it confidential; or the one call provider or not correctly shown on any plans, drawings or utility clearance provided to Olsson, except for Page 8 of 8 19- 3888.01 • damages caused by the negligence of Olsson in the use of responsibility and liability, as set forth herein, shall be such information. specifically applied. 7.9.2 It is understood and agreed that any 7.10 Controlling Law and Venue assistance Olsson may provide Client in the disposal of waste materials shall not result in Olsson being deemed as a The parties agree that this Agreement and any legal actions generator, arranger, transporter or disposer of hazardous concerning its validity, interpretation or performance shall be materials or hazardous waste as defined under any law or governed by the laws of the State of Nebraska. It is further regulation. Title to all samples and waste materials remains agreed that any legal action between the parties arising out of with Client, and at no time shall Olsson take title to the above this Agreement or the performance of services shall be brought material. Client may authorize Olsson to execute Hazardous in a court of competent jurisdiction in Nebraska. Waste Manifest, Bill of Lading or other forms as agent of Client. If Client requests Olsson to execute such documents 7.11 Subconsultants as its agent, the Hazardous Waste Manifest, Bill of Lading or other similar documents shall be completed in the name of the Olsson may utilize as necessary in its discretion Client. Client agrees to indemnify and hold Olsson harmless subconsultants and other subcontractors. Olsson will be paid from any and all claims that Olsson is a generator, arranger. For all services rendered by its subconsultants and other transporter, or disposer of hazardous waste as a result of any subconsultants as set forth in this Agreement. actions of Olsson, including, but not limited to, Olsson signing a Hazardous Waste Manifest, Bill of Lading or other form on 7.12 Assignment behalf of Client. 7.12.1 Client and Olsson each are hereby bound and 7.9.3 At any time, Olsson can request in writing that the partners, successors, executors, administrators and legal Client remove samples, cuttings and hazardous substances representatives of Client and Olsson (and to the extent generated by the Project(s) from the project site or other permitted by paragraph 7.12.2 the assigns of Client and location. Client shall promptly comply with such request, and Olsson) are hereby bound to the other party to this Agreement pay and be responsible for the removal and lawful disposal of and to the partners, successors, executors, administrators and samples, cuttings and hazardous substances, unless other legal representatives (and said assigns) of such other party, in arrangements are mutually agreed upon in writing. respect of all covenants, agreements and obligations of this Agreement. 7.9.4 Client shall release Olsson of any liability for, and shall defend and indemnify Olsson against any and all 7.12.2 Neither Client nor Olsson shall assign, sublet claims, liability and expense resulting from operations under or transfer any rights under or interest in (including, but without this Agreement on account of injury to, destruction of, or loss limitation, moneys that may become due or moneys that are or impairment of any property right in or to oil, gas, or other due) this Agreement without the written consent of the other, mineral substance or water, if at the time of the act or omission except to the extent that any assignment, subletting or transfer causing such injury, destruction, loss or impairment, said is mandated by law or the effect of this limitation may be substance had not been reduced to physical possession above restricted by law. Unless specifically stated to the contrary in the surface of the earth, and for any loss or damage to any any written consent to an assignment, no assignment will formation, strata, reservoir beneath the surface of the earth. release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this 7.9.5 Notwithstanding anything to the contrary paragraph shall prevent Olsson from employing such contained herein, it is understood and agreed by and between subconsultants and other subcontractors as Olsson may deem Olsson and Client that the responsibility for pollution and appropriate to assist in the performance of services under this contamination shall be as follows: Agreement. 7.9.5.1 Unless otherwise provided herein, Client 7.12.3 Nothing under this Agreement shall be shall assume all responsibility for, including control and construed to give any rights or benefits in this Agreement to removal of, and protect, defend and save harmless Olsson anyone other than Client and Olsson, and all duties and from and against all claims, demands and causes of action of responsibilities undertaken pursuant to this Agreement will be every kind and character arising from pollution or for the sole and exclusive benefit of Client and Olsson and not contamination (including naturally occurring radioactive for the benefit of any other party. There are no third -party material) which originates above the surface of the land or beneficiaries of this Agreement. water from spills of fuels, lubricants, motor oils, pipe dope, paints, solvents, ballast, bilge and garbage, except 7.13 indemnity unavoidable pollution from reserve pits, wholly in Olsson's possession and control and directly associated with Olsson's Olsson and Client mutually agree, to the fullest extent equipment. permitted by law, to indemnify and hold each other harmless from any and all damages, liabilities or costs, including 7.9.5.2 In the event a third party commits an act or reasonable attorneys' fees and defense costs, relating to third omission which results in pollution or contamination for which party personal injury or third party property damage and arising either Olsson or Client, for whom such party is performing from their own negligent acts, errors or omissions in the work, is held to be legally liable, the responsibility therefore performance of their services under this Agreement, but only to shall be considered as between Olsson and Client, to be the the extent that each party is responsible for such damages, same as if the party for whom the work was performed had liabilities or costs on a comparative basis of fault. performed the same and all of the obligations regarding defense, indemnity, holding harmless and limitation of Page 7 of 8 19- 3868.01 7.14 Limitation on Damages 7.14.1 Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither party's individual employees, principals, officers or directors shall be subject to personal liability or damages arising out of or connected in any way to the Project(s) or to this Agreement. 7.14.2 Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither Client nor Olsson, their respective officers, directors, partners, employees, contractors or subconsultants shall be liable to the other or shall make any claim for any delay damages, any punitive damages or any incidental, indirect or consequential damages arising out of or connected in any way to the Project(s) or to this Agreement. This mutual waiver of delay damages and consequential damages shall include, but is not limited to disruptions, accelerations, inefficiencies, increased construction costs, increased home office overhead, loss of use. loss of profit, loss of business, loss of income. loss of reputation or any other delay or consequential damages that either party may have incurred from any cause of action including, but not limited to, negligence, statutory violations, misrepresentation, fraud, deceptive trade practices, breach of fiduciary duties, stria liability, breach of contract and/or breach of strict or implied warranty. Both the Client and Olsson shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in the Project(s). 7.14.3 Notwithstanding any other provision of this Agreement, Client agrees that, to the fullest extent permitted by law, Olsson's total liability to the Client for any and all injuries, claims, losses, expenses, damages, or claims expenses of any kind arising from any services provided by or through Olsson under this Agreement, shall not exceed the amount of Olsson's fee earned under this Agreement. Client acknowledges that such causes include, but are not limited to, negligence, statutory violations, misrepresentation, fraud, deceptive trade practices, breach of fiduciary duties, strict liability, breach of contract and /or breach of strict or implied warranty. This limitation of liability shall apply to all phases of Olsson's services performed in connection with the Project(s), whether subsequent to or prior to the execution of this Agreement. 7.15 Entire Agreement This Agreement supersedes all prior communications, understandings and agreements, whether oral or written. Amendments to this Agreement must be in writing and signed by the Client and Olsson. Page 8 of 8 19- 3868.01