HomeMy WebLinkAbout07-25 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 7-25
File Number: 2024-00948
MUD CREEK FLOOD STUDY (COST SHARE AGREEMENT):
A RESOLUTION TO APPROVE A COST SHARE AGREEMENT WITH FAYETTEVILLE PUBLIC SCHOOLS IN
THE AMOUNT OF $27,500.00 FOR A DETAILED ENGINEERING FLOOD STUDY OF MUD CREEK FROM
NORTH CROSSOVER ROAD TO THE CITY LIMITS IN ASSOCIATION WITH THE RELOCATION OF EAST
JOYCE BOULEVARD
WHEREAS, Fayetteville Public Schools has recently purchased property located on the Northeast side of the
intersection of E. Joyce Blvd. and N. Crossover Road and is proposing the construction of a junior high school on the
property; and
WHEREAS, E. Joyce Blvd. will be relocated from the north and western portions of the property to the south and a
portion of the realigned roadway would lie within the floodplain of Mud Creek; and
WHEREAS, the only detailed study in this area currently stops at N. Crossover Road and staff recommends a cost
share to extend the study from N. Crossover Road to the City limits.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Rawn to sign a cost
share agreement with Fayetteville Public Schools in the amount of $27,500.00 for a detailed engineering flood study of
Mud Creek from N. Crossover Road to the City Limits in association with the relocation of E. Joyce Blvd.
PASSED and APPROVED on January 7, 2025
Approved:
E-SIGNED by Molly Rawn
on 2025-01-14 21:49:36 GMT
Attest:
E-SIGNED by Kara Paxton _0 PAN
on 2025-01-14 23:19:14 GMT= -5 FAYETTEVILLE:
Molly Rawn, Mayor Kara Paxton, City Clerk Treasurer 5.
��9s :4KANSP
Page 1
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF JANUARY 7, 2025
CITY COUNCIL MEMO
2024-00948
TO: Mayor Rawn and City Council
THRU: Chris Brown, Public Works Director
FROM: Alan Pugh, Staff Engineer
SUBJECT: Approval of a cost share agreement in the amount of $27,500 with Fayetteville Public
Schools for a detailed engineering flood study of Mud Creek from N Crossover Road
to the City Limits in association with the extension of E Joyce Blvd
RECOMMENDATION:
Staff recommends approval of a cost share agreement in the amount of $27,500 with Fayetteville Public
Schools for a detailed engineering flood study of Mud Creek from N Crossover Road to the City Limits in
association with the extensions of E Joyce Blvd.
BACKGROUND:
Fayetteville Public Schools (FPS) has recently purchased property located on the NE side of the intersection of
E Joyce Blvd and N Crossover Road. FPS is proposing the construction of a Junior High School on the
property.
DISCUSSION:
As a portion of the proposed development, E Joyce Blvd will be relocated from the north and western portions
of the property to the southern portion of the property. This will allow for the elimination of several 90 degree
corners that currently exist and improve traffic flow through the area and continuing east of the proposed
school. As currently proposed, a portion of the realigned roadway would lie within a Zone A floodplain of Mud
Creek located on the southern portion of the property.
Zone A indicates that no detailed study has been performed for this area as the detailed study currently stops
at N Crossover Road. While a full flood study is required for the proposed realignment there would be a
portion of potential unstudied stream between the proposed site and the upstream limits of the current detailed
study at N Crossover Road. For this reason, staff is proposing and FPS has agreed to a cost share to extend
the current detailed flood study from N Crossover Road to the City limits. This would provide for a more
comprehensive study of the area as a whole.
BUDGET/STAFF IMPACT:
The total cost of the study is proposed to be $27,500 with the total cost being split equally by both parties. The
City portion would be $13,750 and the source of funding would be 02108.1, Sales Tax Capital Improvement
Other Drainage Improvements
ATTACHMENTS: SRF (#3) , Mud Creek Flood Study - Cost Share Agreement (#4)
Mailing address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
== City of Fayetteville, Arkansas
y 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
- Legislation Text
File #: 2024-00948
Approval of a cost share agreement in the amount of $27,500 with Fayetteville Public Schools for a
detailed engineering flood study of Mud Creek from N Crossover Road to the City Limits in
association with the extension of E Joyce Blvd
A RESOLUTION TO APPROVE A COST SHARE AGREEMENT WITH FAYETTEVILLE PUBLIC
SCHOOLS IN THE AMOUNT OF $27,500.00 FOR A DETAILED ENGINEERING FLOOD STUDY
OF MUD CREEK FROM NORTH CROSSOVER ROAD TO THE CITY LIMITS IN ASSOCIATION
WITH THE RELOCATION OF EAST JOYCE BOULEVARD
WHEREAS, Fayetteville Public Schools has recently purchased property located on the Northeast side
of the intersection of E. Joyce Blvd. and N. Crossover Road and is proposing the construction of a junior
high school on the property; and
WHEREAS, E. Joyce Blvd. will be relocated from the north and western portions of the property to the
south and a portion of the realigned roadway would lie within the floodplain of Mud Creek; and
WHEREAS, the only detailed study in this area currently stops at N. Crossover Road and staff
recommends a cost share to extend the study from N. Crossover Road to the City limits.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Rawn to
sign a cost share agreement with Fayetteville Public Schools in the amount of $27,500.00 for a detailed
engineering flood study of Mud Creek from N. Crossover Road to the City Limits in association with the
relocation of E. Joyce Blvd.
Page 1
Chris Brown
Submitted By
City of Fayetteville Staff Review Form
2024-948
Item ID
1/7/2025
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
12/5/2024 ENGINEERING (621)
Submitted Date Division / Department
Action Recommendation:
Approval of a cost share agreement in the amount of $27,500 with Fayetteville Public Schools for a detailed
engineering flood study of Mud Creek from N Crossover Road to the City Limits in association with the extension of
E Joyce Blvd.
Budget Impact:
4470.621.8810-5314.00
Sales Tax Capital Improvement
Account Number
Fund
02108.1
Other Drainage
Improvements
Project Number
Project Title
Budgeted Item? Yes
Total Amended Budget
$ 220,000.00
Expenses (Actual+Encum)
Available Budget
$ 220,000.00
Does item have a direct cost? Yes
Item Cost
$ 13,750.00
Is a Budget Adjustment attached? No
Budget Adjustment
$ -
Remaining Budget
206,250.00
V20221130
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number: Approval Date:
Original Contract Number:
Comments:
CONTRACTUAL AGREEMENT FOR
COST SHARE OF MUD CREEK FLOOD STUDY
This Agreement, made and entered into on this 7 day of January 2025, by and between
the City of Fayetteville, Arkansas ("City") and Fayetteville Public School District ("FPS"),
witnesseth:
WHEREAS, FPS has a planned development on the East side of N Crossover Road which
requires the re -alignment of E Joyce Blvd through their property; and
WHEREAS, Zone A floodplain exists in the area of the re -alignment which requires a
detailed flood study to be performed through the property; and
WHEREAS, the current detailed study stops at N Crossover Rd and the City has an interest
in extending the detailed flood study from that point to the City limits, a portion of which is outside
of the FPS project area; and
WHEREAS, FPS recognizes that a full and complete flood study of the entire area as
shown in Exhibit A is beneficial to both parties.
NOW, THEREFORE, the City of Fayetteville, Arkansas and Fayetteville Public School
District agree as follows:
1. The City of Fayetteville, Arkansas agrees to:
A. Reimburse FPS for 50% of the cost of the detailed floodplain study from the
end of the existing detailed study of Mud Creek located just west of Crossover
Road to the City limits located just east of the school property. The total cost of
said study shall not exceed $27,500.00 as shown in Exhibit B unless agreed
upon by both parties in advance.
B. Payments due to FPS, shall be remitted within sixty (60) days after receipt of
valid invoices.
2. Fayetteville Public School District agrees to:
A. Engage FTN/Olsson to perform the study as soon as practicable as shown on
the attached Exhibits A and B. Said study shall include a duplicate effective,
corrective effective and post -project model showing that the proposed roadway
alignment causes no increase in base flood elevation, channel velocity or flood
flows unless variances are approved from these requirements.
B. Provide a copy of the study in electronic format including electronic HEC-RAS
files.
Page 1 of 2
C. Pay for the study (with reimbursement of 50% of the cost by the City of
Fayetteville. Full study amount shall not exceed $27,500.00 without agreement
by both parties in advance)
D. Provide a copy of the invoices from the engineer for review along with the
requests for reimbursement.
IN AGREEMENT WITH ALL THE TERMS AND CONDITIONS ABOVE, WE
SIGN BELOW:
FAYETTEVILLE PUBLIC SCHOOL
DISTRICT
�y
ATTEST:
LN
CITY OF FAYETTEVILLE,
ARKANSAS
E-SIGNED by Molly Rawn
By: on 2025-01-14 21:49:39 GMT
MOLLY RAWN, Mayor
ATTEST: ���G�'GR Y
E-SIGNED by Kara Paxtorf - ��mc
on 2025-01-14 23:19:18 GI :FAYETTEVILLE:�
By: Z
KARA PAXTON, City Clerk TrejgRKgNSP'��
Page 2 of 2
Exhibit B
4-?tn
LETTER AGREEMENT
FOR PROFESSIONAL SERVICES
November 19, 2024
Jorgensen + Associates
Attn: Blake Jorgensen
124 W Sunbridge Drive Suite 5
Fayetteville, Arkansas 72703
Re: LETTER AGREEMENT FOR PROFESSIONAL SERVICES
Floodplain Analysis and Letter of Map Revision (LOMR) (the "Project")
Mud Creek, Washington County, Arkansas
Dear Mr. Jorgensen:
It is our understanding that Jorgensen + Associates ("Client") requests Olsson, Inc. ("Olsson") to
perform services described herein pursuant to terms of this Letter Agreement for Professional
Services, Olsson's General Provisions and any exhibits attached hereto (all documents constitute
and are referred to herein as the "Agreement") for Project.
Olsson has acquainted itself with information provided by Client relative to Project and based
upon such information offers to provide the services described below for Project. Client warrants
that it is either legal Owner of property to be improved by this Project or that Client is acting as
duly authorized agent of 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 Agreement by this reference. In event of any conflict or inconsistency between
this Letter Agreement, and the General Provisions regarding services to be performed by Olsson,
terms of General Provisions shall take precedence.
Olsson shall provide following services ("Scope of Services") to Client for Project as more
specifically described in "Scope of Services" attached hereto. Should Client request work in
addition to 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 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.
Suite 310 / 3537 North Steele Blvd. / Fayetteville, AR 72703
o 479.443.3404 / olsson.com
SCHEDULE FOR OLSSON'S SERVICES
Unless otherwise agreed, Olsson expects to perform its services under Agreement as follows:
Anticipated Start Date:
December 1, 2024
Anticipated Phase 100 Completion Date: Three (3) months following receipt of executed
Agreement and pertinent information. (i.e., FEMA
Effective Model, Client -provided development data)
Anticipated Phase 200 Completion Date: Three (3) months following receipt of as -built data for
Project site
Please note that receipt of Federal Emergency Management Agency (FEMA) effective hydraulic
model may take up to one (1) to two (2) months as it is subject to outside influences (e.g., FEMA
Library schedule, data transfers, et cetera). The period of December 23, 2024 through January 3,
2025 will not apply to Project timeline due to holiday season.
Olsson will endeavor to start its services on Anticipated Start Date and to complete its services
on Anticipated Completion Date. However, Anticipated Start Date, Anticipated Completion Date,
and any milestone dates are approximate only, and Olsson reserves 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 lump sum of Twenty -
Seven Thousand Five Hundred Dollars ($27,500.00) plus reimbursable expenses in accordance
with the Reimbursable Expense Schedule attached to this Agreement. Olsson shall submit
invoices on a monthly basis, and payment is due within 30 calendar days of invoice date.
TERMS AND CONDITIONS OF SERVICE
We have discussed with you risks, rewards and benefits of Project, Scope of Services, and our
fees for such services and Agreement represents entire understanding between Client and
Olsson with respect to Project. Agreement may only be modified in writing signed by both parties.
Client's designated Project Representative shall be
Page 2 of 3
If this Agreement satisfactorily sets forth your understanding of our agreement, please sign in
space provided below. Retain one original for your files and return an executed original to Olsson.
Proposal will be open for acceptance for a period of 30 days from date set forth above, unless
changed by us in writing.
OLSSON, INC.
Y By &44 r��
Lee Beshoner, PE, CFM Brent Johnson, SenA4 Team Leader
By signing below, you acknowledge that you have full authority to bind Client to terms of
Agreement. If you accept terms set forth herein, please sign:
JORGENSEN + ASSOCIATES
By \6
Signature
Print Name Blake Jorgensen
Title Co -Owner
Attachments
General Provisions
Scope of Services
Reimbursable Expense Schedule
Dated
Page 3 of 3
GENERAL PROVISIONS
These General Provisions are attached to and made a part of
the respective Letter Agreement or Master Agreement, dated
November 19, 2024 between Jorgensen + Associates ("Client")
and Olsson, Inc. ("Olsson") for professional services in
connection with the project or projects arising under such Letter
Agreement or Master Agreement (the "Project(s)").
As used herein, the term "this Agreement" refers to these
General Provisions, the applicable Letter Agreement or Master
Agreement, and any other exhibits or attachments thereto as if
they were part of one and the same document.
SECTION 1—OLSSON'S SCOPE OF SERVICES
Olsson's scope of services for the Project(s) is set forth in the
applicable Letter Agreement or Master Agreement ("Scope of
Services").
SECTION 2—ADDITIONAL SERVICES
2.1 Unless otherwise expressly included, Scope of
Services does not include the categories of additional services
set forth in Sections 2.2 and 2.3.
2.2 If Client and Olsson mutually agree for Olsson to
perform any optional additional services as set forth in this
Section 2.2 ("Optional Additional Services"), Client will provide
written approval of the agreed -upon Optional Additional
Services, and Olsson shall perform or obtain from others such
services and will be entitled to an increase in compensation at
rates provided in this Agreement. Olsson may elect not to
perform all or any of the Optional Additional Services without
cause or explanation:
2.2.1 Preparation of applications and supporting
documents for governmental financial support of the Project(s);
preparation or review of environmental studies and related
services; and assistance in obtaining environmental approvals.
2.2.2 Services to make measured drawings of or to
investigate existing conditions of facilities.
2.2.3 Services resulting from changes in the general
scope, extent or character of the Project(s) or major changes in
documentation previously accepted by Client where changes
are due to causes beyond Olsson's control.
2.2.4 Services resulting from the discovery of
conditions or circumstances which were not contemplated by
Olsson at the commencement of this Agreement. Olsson shall
notify Client of the newly discovered conditions or
circumstances and Client and Olsson shall renegotiate, in good
faith, the compensation for this Agreement, if amended terms
cannot be agreed upon, Olsson may terminate this Agreement
and Olsson shall be paid for its services through the date of
termination.
2.2.5 Providing renderings or models.
2.2.6 Preparing documents for alternate bids
requested by Client.
2.2.7 Analysis of operations, maintenance or
overhead expenses; value engineering; the preparation of rate
schedules; earnings or expense statements; cash flow or
economic evaluations or; feasibility studies, appraisals or
valuations.
2.2.8 Furnishing the services of independent
professional associates or consultants for work beyond the
Scope of Services.
2.2.9 Services necessary due to the Client's award of
more than one prime contract for the Project(s); services
necessary due to the construction contract containing cost plus
or incentive -savings provisions; services necessary in order to
arrange for performance by persons other than the prime
contractor; or those services necessary to administer Client's
contract(s).
2.2.10 Services in connection with staking out the work
of contractor(s).
2.2.11 Services during out-of-town travel or visits to the
site beyond those specifically identified in this Agreement.
2.2.12 Preparation of operating and maintenance
manuals.
2.2.13 Services to redesign some or all of the
Project(s).
2.2.14 Preparing to serve or serving as a consultant or
witness or assisting Client with any litigation, arbitration or other
legal or administrative proceeding.
2.2.15 Services relating to Construction Observation,
Certification, Inspection, Construction Cost Estimating, project
observation, construction management, construction
scheduling, construction phasing or review of Contractor's
performance means or methods.
2.3 Whenever, in its sole discretion, Olsson determines
additional services as set forth in this Section 2.3 are necessary
to avoid a delay in the completion of the Project(s) ("Necessary
Additional Services"), Olsson shall perform or obtain from others
such services without waiting for specific instructions from
Client, and Olsson will be entitled to an increase in
compensation for such services at the standard hourly billing
rate charged for those employees performing the services, plus
reimbursable expenses, if any:
2.3.1 Services in connection with work directive
changes and/or change orders directed by the Client to any
contractors.
2.3.2 Services in making revisions to drawings and
specifications occasioned by the acceptance of substitutions
proposed by contractor(s); services after the award of each
contract in evaluating and determining the acceptability of an
unreasonable or excessive number of substitutions proposed by
contractor(s); or evaluating an unreasonable or extensive
number of claims submitted by contractor(s) or others in
connection with the Project(s).
2.3.3 Services resulting from significant delays,
changes or price increases occurring as a direct or indirect result
of material, equipment or energy shortages.
Page 1 of 9
2.3.4 Additional or extended services during
construction made necessary by (1) work damaged during
construction, (2) a defective, inefficient or neglected work by any
contractor, (3) acceleration of the progress schedule involving
services beyond normal working hours, or (4) default by any
contractor.
SECTION 3—CLIENT'S RESPONSIBILITIES
3.1. Client shall provide all criteria and full information as to
Client's requirements for the Project(s); designate and identify in
writing a person to act with authority on Client's behalf in respect
of all aspects of the Project(s); examine and respond promptly
to Olsson's submissions; and give prompt written notice to
Olsson whenever Client observes or otherwise becomes aware
of any defect in the Olsson's services.
3.2 Client agrees to pay Olsson the amounts due for
services rendered and expenses within thirty (30) days after
Olsson has provided its invoice for such services. In the event
Client disputes any invoice item, Client shall give Olsson written
notice of such disputed item within fifteen (15) days after receipt
of such invoice and shall pay to Olsson the undisputed portion of
the invoice according to the provisions hereof. If Client fails to pay
any invoiced amounts when due, interest will accrue on each
unpaid amount at the rate of thirteen percent (13%) per annum
from the date due until paid according to the provisions of this
Agreement. Interest shall not be charged on any disputed invoice
item which is finally resolved in Client's favor. Payment of interest
shall not excuse or cure any default or delay in payment of
amounts due.
3.2.1 If Client fails to make any payment due Olsson
for services and expenses within thirty (30) days after receipt of
Olsson's statement therefore, Olsson may, after giving seven (7)
days written notice to Client, suspend services to Client under
this Agreement until Olsson has been paid in full all amounts
due for services, expenses and charges and Client will not
obtain any license to any Work Product or be entitled to retain
or use any Work Product pursuant to Section 7.1 unless and
until Olsson has been paid in full and Client has fully satisfied all
of its obligations under this Agreement.
3.3 Payments to Olsson shall not be withheld, postponed
or made contingent on the construction, completion or success
of the Project(s) or upon receipt by the Client of offsetting
reimbursements or credit from other parties who may have
caused the need for additional services. No withholdings,
deductions or offsets shall be made from Olsson's
compensation for any reason unless and until Olsson has been
found to be legally liable for such amounts.
3.4 Client shall also do the following and pay all costs
incident thereto:
3.4.1 Furnish to Olsson any existing and/or required
borings, probings or subsurface explorations; hydrographic
surveys; laboratory tests or inspections of samples, materials or
equipment; appropriate professional interpretations of any of the
foregoing; environmental assessment and impact statements;
property, boundary, easement, right-of-way, topographic or
utility surveys; property descriptions; and/or zoning or deed
restrictions; all of which Olsson may rely upon in performing
services hereunder.
3.4.2 Guarantee access to and make all provisions for
Olsson to enter upon public and private property reasonably
necessary to perform its services on the Project(s).
3.4.3 Provide such legal, accounting, independent
cost estimating or insurance counseling services as may be
required for the Project(s); any auditing service required in
respect of contractor(s)' applications for payment; and/or any
inspection services to determine if contractor(s) are performing
the work legally.
3.4.4 Provide engineering surveys to establish
reference points for construction unless specifically included in
Olsson's Scope of Services.
3.4.5 Furnish approvals and permits from all
governmental authorities having jurisdiction over the Project(s).
3.4.6 If more than one prime contractor is to be
awarded the contract for construction, designate a party to have
responsibility and authority for coordinating and interfacing the
activities of the various prime contractors.
3.4.7 All fees and other amounts payable by Client
under this Agreement are exclusive of taxes and similar
assessments. Without limiting the foregoing, Client is
responsible and liable for all sales, service, use, and excise
taxes, and any other similar taxes, duties, and charges of any
kind imposed by any federal, state, county or local governmental
authority on any amounts payable by Client under this
Agreement, other than any taxes imposed on Olsson's
income. In the event any governmental authority assesses
Olsson for taxes, duties, or charges of any kind in connection
with Scope of Services provided by Olsson to Client, Olsson
shall be entitled to submit an invoice to Client, its successors or
assigns, for the amount of said assessment and related interest
and penalties. Client shall pay such invoice in accordance with
Olsson's standard payment terms.
3.5 Client shall pay all costs incident to obtaining bids or
proposals from contractor(s).
3.6 Client shall pay all permit application review costs for
government authorities having jurisdiction over the Project(s).
3.7 Contemporaneously with the execution of this
Agreement, Client shall designate in writing an individual to act
as its duly authorized Project(s) representative.
3.8 Client shall bear sole responsibility for:
3.8.1 Jobsite safety. Neither the professional activities
of Olsson, nor the presence of Olsson or its employees or sub -
consultants at the Project shall impose any duty on Olsson
relating. to any health or safety laws, regulations, rules,
programs or procedures.
3.8.2 Notifying third parties including any
governmental agency or prospective purchaser, of the existence
of any hazardous or dangerous materials located in or around
the Project(s) site.
3.8.3 Providing and updating Olsson with accurate
information regarding existing conditions, including the
existence of hazardous or dangerous materials, proposed
Page 2 of 9
Project(s) site uses, any change in Project(s) plans, and all
subsurface installations, such as pipes, tanks, cables and
utilities within the Project(s) site.
3.8.4 Providing and assuming all responsibility for:
interpretation of contract documents; Construction
Observations; Certifications; Inspections; Construction Cost
Estimating; project observations; construction management;
construction scheduling; construction phasing; and review of
Contractor's performance, means and methods. Client waives
any claims against Olsson and releases Olsson from liability
relating to or arising out of such services and agrees, to the
fullest extent permitted by law, to indemnify and hold Olsson
harmless from any and all damages, liabilities or costs, including
reasonable attorneys' fees and defense costs, relating to such
actions and services.
3.9 Client releases Olsson from liability for any incorrect
advice, judgment or decision based on inaccurate information
furnished by Client or others.
3.10 If reasonable precautions will be inadequate to prevent
foreseeable bodily injury or death to persons resulting from a
material or substance, including hazardous materials,
encountered on the site, Olsson may immediately stop work in
the affected area and report the condition to Client. Client shall
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 the material
has been removed or rendered harmless and only after
approval, if necessary of the government agency with
jurisdiction.
SECTION 4—MEANING OF TERMS
4.1 The "Cost of Construction" of the entire Project(s)
(herein referred to as "Cost of Construction") means the total
cost to Client of those portions of the entire Project(s) designed
and specified by Olsson, but it will not include Olsson's
compensation and expenses, the cost of land, rights -of -way, or
compensation for or damages to, properties unless this
Agreement so specifies, nor will it include Client's legal,
accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with the
Project(s) or the cost of other services to be provided by others
to Client pursuant to Section 3.
4.2 The "Salary Costs": Used as a basis for payment mean
salaries and wages (base and incentive) paid to all Olsson's
personnel engaged directly on the Project(s), including, but not
limited to, engineers, architects, surveyors, designers,
draftsmen, specification writers, estimators, other technical and
business personnel; plus the cost of customary and statutory
benefits, including, but not limited to, social security
contributions, unemployment, excise and payroll taxes, workers'
compensation, health and retirement benefits, sick leave,
vacation and holiday pay and other group benefits.
4.3 "Certify" or "a Certification": If included in the Scope of
Services, such services shall be limited to a statement of
Olsson's opinion, to the best of Olsson's professional
knowledge, information and belief, based upon its periodic
observations and reasonable review of reports and tests created
by Olsson or provided to Olsson. Olsson shall not be responsible
for constant or exhaustive observation of the work. Client
understands and agrees that any certifications based upon
discrete sampling observations and that such observations
indicate conditions that exist only at the locations and times the
observations were performed. Performance of such observation
services and certification does not constitute a warranty or
guarantee of any type, since even with diligent observation,
some construction defects, deficiencies or omissions in the work
may occur. Olsson shall have no responsibility for the means,
methods, techniques, sequences or procedures selected by the
contractor(s) or for the contractor's safety precautions and
programs nor for failure by the contractor(s) to comply with any
laws or regulations relating to the performance or furnishing of
any work by the contractor(s). Client shall hold its contractor(s)
solely responsible for the quality and completion of the
Project(s), including construction in accordance with the
construction documents. Any duty under this Agreement is for
the sole benefit of the Client and not for any third party, including
the contractor(s) or any subcontractor(s). Olsson shall sign pre-
printed form certifications only if (a) Olsson approves the form
of such certification prior to the commencement of its services,
(b) such certification is expressly included in the Scope of
Services, (c) the certification is limited to a statement of
professional opinion and does not constitute a warranty or
guarantee, express or implied. It is understood that any
certification by Olsson shall not relieve the Client or the Client's
contractors of any responsibility or obligation they may have by
industry custom or under any contract.
4.4 "Opinion of Probable Cost": An opinion of probable
construction cost made by Olsson. In providing opinions of
probable construction cost, it is recognized that neither the
Client nor Olsson has control over the costs of labor, equipment
or materials, or over the contractor's methods of determining
prices or bidding. The opinion of probable construction costs is
based on Olsson's reasonable professional judgment and
experience and does not constitute a warranty, express or
implied, that the contractor's bids or the negotiated price of the
work on the Project(s) will not vary from the Client's budget or
from any opinion of probable cost prepared by Olsson.
4.5 "Day": A calendar day of 24 hours. The term "days"
shall mean consecutive calendar days of 24 hours each, or
fraction thereof.
4.6 "Construction Observation": If included in the Scope of
Services, such services during construction shall be limited to
periodic visual observation and testing of the work to determine
that the observed work generally conforms to the contract
documents. Olsson shall not be responsible for constant or
exhaustive observation of the work. Client understands and
agrees that such visual observations are discrete sampling
procedures and that such procedures indicate conditions that
exist only at the locations and times the observations were
performed. Performance of Construction Observation services
does not constitute a warranty or guarantee of any type, since
even with diligent observation, some construction defects,
deficiencies or omissions in the work may occur. Olsson shall
have no responsibility for the means, methods, techniques,
sequences or procedures selected by the contractor or for the
contractor's safety precautions and programs nor for failure by
the contractor to comply with any laws or regulations relating to
the performance or furnishing of any work by the contractor.
Client shall hold its contractor(s) solely responsible for the
quality and completion of the Project(s), including construction
in accordance with the construction documents. Any duty under
this Agreement is for the sole benefit of the Client and not for
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any third party, including the contractor or any subcontractor.
Client, or its designees shall notify Olsson at least twenty-four
(24) hours in advance of any field tests and observations
required by the construction documents.
4.7 "Inspect" or "Inspection": If included in the Scope of
Services, such services shall be limited to the periodic visual
observation of the contractor's completed work to permit Olsson,
as an experienced and qualified professional, to determine that
the observed work, generally conforms to the contract
documents. Olsson shall not be responsible for constant or
exhaustive observation of the work. Client understands and
agrees that such visual observations are discrete sampling
procedures and that such procedures indicate conditions that
exist only at the locations and times the observations were
performed. Performance of such observation services does not
constitute a warranty or guarantee of any type, since even with
diligent observation, some construction defects, deficiencies or
omissions in the work may occur. Olsson shall have no
responsibility for the means, methods, techniques, sequences
or procedures selected by the contractor(s) or for the
contractor's safety precautions and programs nor for failure by
the contractor(s) to comply with any laws or regulations relating
to the performance or furnishing of any work by the
contractor(s). Client shall hold its contractor(s) solely
responsible for the quality and completion of the Project(s),
including construction in accordance with the construction
documents. Any duty under this Agreement is for the sole benefit
of the Client and not for any third party, including the
contractor(s) or any subcontractor(s). Client, or its designees,
shall notify Olsson at least twenty-four (24) hours in advance of
any inspections required by the construction documents.
4.8 "Record Documents": Drawings prepared by Olsson
upon the completion of construction based upon the drawings
and other data furnished to Olsson by the Contractor and others
showing significant changes in the work on the Project(s) made
during construction. Because Record Documents are prepared
based on unverified information provided by others, Olsson
makes no warranty of the accuracy or completeness of the
Record Documents.
SECTION 5—TERMINATION
5.1 Either party may terminate this Agreement, for cause
upon giving the other party not less than seven (7) calendar days
written notice of default for any of the following reasons;
provided, however, that the notified party shall have the same
seven (7) calendar day period in which to cure the default:
5.1.1 Substantial failure by the other party to perform
in accordance with the terms of this Agreement and through no
fault of the terminating party;
5.1.2 Assignment of this Agreement or transfer of the
Project(s) by either party to any other entity without the prior
written consent of the other party;
5.1.3 Suspension of the Project(s) or Olsson's
services by the Client for more than ninety (90) calendar days,
consecutive or in the aggregate.
5.2 In the event of a "for cause" termination of this
Agreement by either party, the Client shall, within fifteen (15)
calendar days after receiving Olsson's final invoice, pay Olsson
for all services rendered and all reimbursable costs incurred by
Olsson up to the date of termination, in accordance with the
payment provisions of this Agreement.
5.2.1 In the event of a "for cause" termination of this
Agreement by Client and (a) a final determination of default is
entered against Olsson under Section 6.2 and (b) Client has fully
satisfied all of its obligations under this Agreement, Olsson shall
grant Client a limited license to use the Work Product pursuant
to Section 7.1.
5.3 The Client may terminate this Agreement for the
Client's convenience and without cause upon giving Olsson not
less than seven (7) calendar days written notice. In the event of
any termination that is not the fault of Olsson, the Client shall
pay Olsson, in addition to payment for services rendered and
reimbursable costs incurred, for all expenses reasonably
incurred by Olsson in connection with the orderly termination of
this Agreement, including but not limited to demobilization,
reassignment of personnel, associated overhead costs, any
fees, costs or expenses incurred by Olsson in preparing or
negotiating any proposals submitted to Client for Olsson's
Scope of Services or Optional Additional Services under this
Agreement and all other expenses directly resulting from the
termination and a reasonable profit of ten percent (10%) of
Olsson's actual costs (including overhead) incurred.
SECTION 6—DISPUTE RESOLUTION
6.1. Mediation
6.1.1 All questions in dispute under this Agreement
shall be submitted to mediation. On the written notice of either
party to the other of the election to submit any dispute under this
Agreement to mediation, each party shall designate their
representatives and shall meet within ten (10) days after the
service of the notice. The parties themselves shall then attempt
to resolve the dispute within ten (10) days of meeting.
6.1.2 Should the parties themselves be unable to
agree on a resolution of the dispute, and then the parties shall
appoint a third party who shall be a competent and impartial
party and who shall be acceptable to each party, to mediate the
dispute. Any third party mediator shall be qualified to evaluate
the performance of both of the parties, and shall be familiar with
the design and construction progress. The third party shall meet
to hear the dispute within ten (10) days of their selection and
shall attempt to resolve the dispute within fifteen (15) days of
first meeting.
6.1.3 Each party shall pay the fees and expenses of
the third party mediator and such costs shall be borne equally
by both parties.
6.2 Arbitration or Litigation
6.2.1 Olsson and Client agree that from time to time,
there may be conflicts, disputes and/or disagreements between
them, arising out of or relating to the services of Olsson, the
Project(s), or this Agreement (hereinafter collectively referred to
as "Disputes") which may not be resolved through mediation.
Therefore, Olsson and Client agree that all Disputes shall be
resolved by binding arbitration or litigation at the sole discretion
and choice of Olsson. If Olsson chooses arbitration, the
arbitration proceeding shall proceed in accordance with the
Construction Industry Arbitration Rules of the AAA.
Page 4 of 9
6.2.2 Client hereby agrees that Olsson shall have the
right to include Client, by consolidation, joinder or other manner,
in any arbitration or litigation involving Olsson and a
subconsultant or subcontractor of Olsson or Olsson and any
other person or entity, regardless of who originally initiated such
proceedings.
6.2.3 If Olsson chooses arbitration or litigation, either
may be commenced at any time prior to or after completion of
the Project(s), provided that if arbitration or litigation is
commenced prior to the completion of the Project(s), the
obligations of the parties under the terms of this Agreement shall
not be altered by reason of the arbitration or litigation being
conducted. Any arbitration hearings or litigation shall take place
in Lincoln, Nebraska, the location of Olsson's home office.
6.2.4 Except to the extent prohibited by law, the
prevailing party in any arbitration or litigation relating to any
Dispute shall be entitled to recover from the other party those
reasonable attorney fees, costs and expenses incurred by the
prevailing party in connection with the Dispute. In the event of
a Dispute involving a Claim (as hereinafter defined) against
Olsson, Olsson shall be considered the "prevailing party" if
Client is awarded materially less than the full amount of
damages claimed by the Client in connection with the Dispute.
In all other Disputes, "prevailing party' shall mean the party (if
any) who obtains all, or substantially all, of the relief requested
by that party in connection with the Dispute.
6.3 Certification of Merit
Client agrees that it will not assert any claim, including but not
limited to, professional negligence, negligence, breach of
contract, misconduct, error, omission, fraud, or
misrepresentation ("Claim") against Olsson, or any Olsson
subconsultant, unless Client has first provided Olsson with a
sworn certificate of merit affidavit setting forth the factual and
legal basis for such Claim (the "Certificate"). The Certificate
shall be executed by an independent engineer ("Certifying
Engineer") currently licensed and practicing in the jurisdiction of
the Project site. The Certificate must contain: (a) the name and
license number of the Certifying Engineer; (b the qualifications
of the Certifying Engineer, including a list of all publications
authored in the previous 10 years and a list of all cases in which
the Certifying Engineer testified within the previous 4 years ; (c)
a statement by the Certifying Engineer setting forth the factual
basis for the Claim; (d) a statement by the Certifying Engineer
of each and every act, error, or omission that the Certifying
Engineer contends supports the Claim or any alleged violation
of any applicable standard of care; (a) a statement by the
Certifying Engineer of all opinions the Certifying Engineer holds
regarding the Claim or any alleged violation of any applicable
standard of care; (f) a list of every document related to the
Project reviewed by the Certifying Engineer; and (g) a list of
every individual who provided Certifying Engineer with any
information regarding the Project. The Certificate shall be
provided to Olsson not less than thirty (30) days prior to any
arbitration or litigation commenced by Client or not less than ten
(10) days prior to the initial response submitted by Client in any
arbitration or litigation commenced by someone other than
Client. The Certificate is a condition precedent to the right of
Client to assert any Claim in any litigation or arbitration and
Client's failure to timely provide a Certificate to Olsson will be
grounds for automatic dismissal of the Claim with prejudice. In
any such instance, Olsson shall be entitled to an award of
attorney's fees, costs, and expenses.
SECTION 7—MISCELLANEOUS
7.1 Reuse of Documents
All documents, including drawings, specifications, reports,
boring logs, maps, field data, data, test results, information,
recommendations, or opinions prepared or furnished by Olsson
(and Olsson's independent professional associates and
consultants) pursuant to this Agreement ("Work Product"), are
all Olsson's instruments of service, do not constitute goods or
products, and are copyrighted works of Olsson. Olsson shall
retain an ownership and property interest in such Work Product
whether or not the Project(s) is completed. If Client has fully
satisfied all of its obligations under this Agreement, Olsson shall
grant Client a limited license to use the Work Product and Client
may make and retain copies of Work Product for use in
connection with the Project(s); however, such Work Product is
for the exclusive use and benefit of Client or its agents in
connection with the Project(s), are not intended to inform, guide
or otherwise influence any other entities or persons with respect
to any particular business transactions, and should not be relied
upon by any entities or persons other than Client or its agents
for any purpose other than the Project(s). Such Work Product is
not intended or represented to be suitable for reuse by Client or
others on extensions of the Project(s) or on any other Project(s).
Client will not distribute or convey such Work Product to any
other persons or entities without Olsson's prior written consent
which shall include a release of Olsson from liability and
indemnification by the third party. Any reuse of Work Product
without written verification or adaptation by Olsson for the
specific purpose intended will be at Client's sole risk and without
liability or legal exposure to Olsson, or to Olsson's independent
professional associates or consultants, and Client shall
indemnify and hold harmless Olsson and Olsson's independent
professional associates and consultants from all claims,
damages, losses and expenses including attorneys' fees arising
out of or resulting therefrom. Any such verification or adaptation
of Work Product will entitle Olsson to further compensation at
rates to be agreed upon by Client and Olsson.
7.2 Electronic Files
By accepting and utilizing any electronic file of any Work Product
or other data transmitted by Olsson, the Client agrees for itself,
its successors, assigns, insurers and all those claiming under or
through it, that by using any of the information contained in the
attached electronic file, all users agree to be bound by the
following terms. All of the information contained in any electronic
file is the work product and instrument of service of Olsson, who
shall be deemed the author, and shall retain all common law,
statutory law and other rights, including copyrights, unless the
same have previously been transferred in writing to the Client.
The information contained in any electronic file is provided for
the convenience to the Client and is provided in "as is" condition.
The Client is aware that differences may exist between the
electronic files transferred and the printed hard -copy original
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
signed and sealed original documents shall govern. Olsson
specifically disclaims all warranties, expressed or implied,
including without limitation, and any warranty of merchantability
or fitness for a particular purpose with respect to any electronic
files. It shall be Client's responsibility to confirm the accuracy of
the information contained in the electronic file and that it
accurately reflects the information needed by the Client. Client
Page 5 of 9
shall not retransmit any electronic files, or any portion thereof,
without including this disclaimer as part of any such
transmissions. In addition, Client agrees, to the fullest extent
permitted by law, to indemnify and hold harmless Olsson, its
officers, directors, employees and sub consultants against any
and all damages, liabilities, claims or costs, including
reasonable attorney's and expert witness fees and defense
costs, arising from any changes made by anyone other than
Olsson or from any reuse of the electronic files without the prior
written consent of Olsson.
7.3 Opinion of Probable Cost
Since Olsson has no control over the cost of labor, materials,
equipment or services furnished by others, or over the
contractor(s)' methods of determining prices, or over competitive
bidding or market conditions, Olsson's Opinion of Probable Cost
provided for herein is made on the basis of Olsson's experience
and qualifications and represent Olsson's best judgment as an
experienced and qualified professional engineer, familiar with
the construction industry. Client acknowledges and agrees that
Olsson cannot and does not guarantee proposals or bids and
that actual total Project(s) or construction costs may reasonably
vary from Olsson's Opinion of Probable Cost. If prior to the
bidding or negotiating phase Client wishes greater assurance as
to total Project(s) or construction costs, Client shall employ an
independent cost estimator as provided in paragraph 3.4.3. If
Olsson's Opinion of Probable Cost was performed in
accordance with its standard of care and was reasonable under
the total circumstances, any services performed by Olsson to
modify the contract documents to bring the construction cost
within any limitation established by Client will be considered
Optional Additional Services and paid for as such by Client. If,
however, Olsson's Opinion of Probable Cost was not performed
in accordance with its standard of care and was unreasonable
under the total circumstances and the lowest negotiated bid for
construction of the Project(s) unreasonably exceeds Olsson's
Opinion of Probable Cost, Olsson shall modify its work as
necessary to adjust the Project(s)' size, and/or quality to
reasonably comply with the Client's budget at no additional cost
to Client. Under such circumstances, Olsson's modification of its
work at no cost shall be the limit of Olsson's responsibility with
regard to any unreasonable Opinion of Probable Cost.
7.4 Prevailing Wages
It is Client's responsibility to determine whether the Project(s) is
covered under any prevailing wage regulations. Unless Client
specifically informs Olsson in writing that the Project(s) is a
prevailing wage project and is identified as such in the Scope of
Services, Client agrees to reimburse Olsson and to defend,
indemnify and hold harmless Olsson from and against any
liability, including costs, fines and attorneys' fees, resulting from
a subsequent determination that the Project(s) was covered
under any prevailing wage regulations.
7.5 Samples
All material testing samples shall remain the property of the
Client. If appropriate, Olsson shall preserve samples obtained
no longer than forty-five (45) days after the issuance of any
document that includes the data obtained from those samples.
After that date, Olsson may dispose of the samples or return
them to Client at Client's cost.
7.6 Standard of Care
Olsson will strive to perform its services in a manner consistent
with that level of care and skill ordinarily exercised by members
of Olsson's profession providing similar services in the same
locality under similar circumstances at the time Olsson's
services are performed. This Agreement creates no other
representation, warranty or guarantee, express or implied.
7.7 Force Majeure
Any delay in the performance of any of the duties or obligations
of either party hereto (except the payment of money) shall not
be considered a breach of this Agreement and the time required
for performance shall be extended for a period equal to the
period of such delay, provided that such delay has been caused
by or is the result of any acts of God, acts of the public enemy,
insurrections, riots, embargoes, labor disputes, including strikes,
lockouts, job actions, boycotts, fires, explosions, floods,
shortages of material or energy, or other unforeseeable causes
beyond the control and without the fault or negligence of the
party so affected. The affected party shall give prompt notice to
the other party of such cause, and shall take promptly whatever
reasonable steps are necessary to relieve the effect of such
cause.
7.8 Equal Employment Opportunity
Olsson and any sub -consultant or subcontractor shall abide by
the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-
741.5(a). These regulations prohibit discrimination against
qualified individuals based on their status as protected veterans
or individuals with disabilities, and prohibit discrimination against
all individuals based on their race, color, religion, sex, sexual
orientation, gender identity or national origin. Moreover, these
regulations require that covered prime contractors and
subcontractors take affirmative action to employ and advance in
employment individuals without regard to race, color, religion,
sex, sexual orientation, gender identity, national origin, disability
or veteran status.
7.9 Confidentiality
In performing this Agreement, the parties may disclose to each
other written, oral, electronic, graphic, machine-readable,
tangible or intangible, non-public, confidential or proprietary data
or information in any form or medium, including but not limited
to: (1) information of a business, planning, marketing,
conceptual, design, or technical nature; (2) models, tools,
hardware, software or source code; and (3) any documents,
videos, photographs, audio files, data, studies, reports,
flowcharts, works in progress, memoranda, notes, files or
analyses that contain, summarize or are based upon any non-
public, proprietary or confidential information (hereafter referred
to as the "Information"). The Information is not required to be
marked as confidential.
7.9.1 Therefore, Olsson and Client agree that the
party receiving Information from the other party to this
Agreement (the "Receiving Party") shall keep Information
confidential and not use the Information in any manner other
than in the performance of this Agreement without prior written
approval of the party disclosing Information (the "Disclosing
Party") unless Client is a public entity and the release of
Information is required by law or legal process.
Page 6 of 9
7.9.2 Prior to the start of construction on the Project,
the existence of discussions between the parties, the purpose
of this Agreement, and this Agreement shall be considered
Information subject to the confidentiality provisions of this
Agreement.
7.9.3 Notwithstanding anything to the contrary herein,
the Receiving Party shall have no obligation to preserve the
confidentiality of any Information which:
7.9.3.1 was previously known to the Receiving
Party free of any obligation to keep it confidential; or
7.9.3.2 is or becomes publicly available by other
than unauthorized disclosures; or
7.9.3.3 is independently developed by the
Receiving Party without a breach of this Agreement; or
7.9.3.4 is disclosed to third parties by the
Disclosing Party without restrictions; or
7.9.3.5 is received from a third party not subject to
any confidentiality obligations.
7.9.4 In the event that the Receiving Party is required
by law or legal process to disclose any of Information of the
Disclosing Party, the Receiving Party required to disclose such
Information shall provide the Disclosing Party with prompt oral
and written notice, unless notice is prohibited by law (in which
case such notice shall be provided as early as may be legally
permissible), of any such requirement so that the Disclosing
Party may seek a protective order or other appropriate remedy.
7.9.5 Notwithstanding anything to the contrary herein
(or to the contrary of any existing or future nondisclosure,
confidentiality or similar agreement between the parties), Olsson
is authorized, to use, display, reproduce, publish, transmit, and
distribute Information (including, but not limited to, videos and
photographs of the Project) on and in any and all formats and
media (including, but not limited to, Olsson's internet website)
throughout the world and in all languages in connection with or
in any manner relating to the marketing, advertising, selling,
qualifying, proposing, commercializing, and promotion of Olsson
and/or its services and business and in connection with any
other lawful purpose of Olsson. In the event of any conflict or
inconsistency between the provisions of this section and any
other prior or future nondisclosure, confidentiality or similar
agreement between the parties, the terms of this section shall
take precedence.
7.9.6 Nothing contained in this Agreement shall be
construed as altering any rights that the Disclosing Party has in
the Information exchanged with or disclosed to the Receiving
Party, and upon request, the Receiving Party will return all
Information received in tangible form to the Disclosing Party, or
at the Receiving Party's option, destroy all such Information. If
the Receiving Party exercises its option to destroy the
Information, the Receiving Party shall certify such destruction to
the Disclosing Party.
7.9.7 The parties acknowledge that disclosure or use
of Information in violation of this Agreement could cause
irreparable harm for which monetary damages may be difficult
to ascertain or constitute an inadequate remedy. Each party
therefore agrees that the Disclosing Party shall be entitled in
addition to its other rights to seek injunctive relief for any
violation of this Agreement.
7.9.8 The obligations of confidentiality set forth herein
shall survive termination of this Agreement but shall only remain
in effect for a period of one (1) yearfrom the date the Information
is first disclosed.
7.10 Damage or Injury to Subterranean Structures or
Utilities, Hazardous Materials, Pollution and Contamination
7.10.1 To the extent that work pursuant to this
Agreement requires any sampling, boring, excavation, ditching
or other disruption of the soil or subsurface at the Site, Olsson
shall confer with Client prior to such activity and Client will be
responsible for identifying, locating and marking, as necessary,
any private subterranean structures or utilities and Olsson shall
be responsible for arranging investigation of public subterranean
structures or utilities through an appropriate utility one -call
provider. Thereafter, Olsson shall take all reasonable
precautions to avoid damage or injury to subterranean
structures or utilities which were identified by Client or the one -
call provider. Olsson shall not be responsible for any damage,
liability or costs, for any property damage, injury or economic
loss arising or allegedly arising from damages to subterranean
structures or utilities caused by subsurface penetrations in
locations approved by Client and/or the one call provider or not
correctly shown on any plans, drawings or utility clearance
provided to Olsson, except for damages caused by the
negligence of Olsson in the use of such information.
7.10.2 It is understood and agreed that any assistance
Olsson may provide Client in the disposal of waste materials
shall not result in Olsson being deemed as a generator,
arranger, transporter or disposer of hazardous materials or
hazardous waste as defined under any law or regulation. Title to
all samples and waste materials remains with Client, and at no
time shall Olsson take title to the above material. Client may
authorize Olsson to execute Hazardous Waste Manifest, Bill of
Lading or other forms as agent of Client. If Client requests
Olsson to execute such documents as its agent, the Hazardous
Waste Manifest, Bill of Lading or other similar documents shall
be completed in the name of the Client. Client agrees to
indemnify and hold Olsson harmless from any and all claims that
Olsson is a generator, arranger, transporter, or disposer of
hazardous waste as a result of any actions of Olsson, including,
but not limited to, Olsson signing a Hazardous Waste Manifest,
Bill of Lading or other form on behalf of Client.
7.10.3 At any time, Olsson can request in writing that
Client remove samples, cuttings and hazardous substances
generated by the Project(s) from the project site or other
location. Client shall promptly comply with such request, and
pay and be responsible for the removal and lawful disposal of
samples, cuttings and hazardous substances, unless other
arrangements are mutually agreed upon in writing.
7.10.4 Client shall release Olsson of any liability for,
and shall defend and indemnify Olsson against any and all
claims, liability and expense resulting from operations under this
Agreement on account of injury to, destruction of, or loss or
impairment of any property right in or to oil, gas, or other mineral
substance or water, if at the time of the act or omission causing
such injury, destruction, loss or impairment, said substance had
not been reduced to physical possession above the surface of
Page 7 of 9
the earth, and for any loss or damage to any formation, strata,
reservoir beneath the surface of the earth.
7.10.5 Notwithstanding anything to the contrary
contained herein, it is understood and agreed by and between
Olsson and Client that the responsibility for pollution and
contamination shall be as follows:
7.10.5.1 Unless otherwise provided herein, Client
shall assume all responsibility for, including control and removal
of, and protect, defend and save harmless Olsson from and
against all claims, demands and causes of action of every kind
and character arising from pollution or contamination (including
naturally occurring radioactive material) which originates above
the surface of the land or water from spills of fuels, lubricants,
motor oils, pipe dope, paints, solvents, ballast, bilge and
garbage, except unavoidable pollution from reserve pits, wholly
in Olsson's possession and control and directly associated with
Olsson's equipment.
7.10.5.2 In the event a third party commits an act or
omission which results in pollution or contamination for which
either Olsson or Client, for whom such party is performing work,
is held to be legally liable, the responsibility therefore shall be
considered as between Olsson and Client, to be the same as if
the party for whom the work was performed had performed the
same and all of the obligations regarding defense, indemnity,
holding harmless and limitation of responsibility and liability, as
set forth herein, shall be specifically applied.
7.11 Controlling Law and Venue
The parties agree that this Agreement and any legal actions
concerning its validity, interpretation or performance shall be
governed by the laws of the State of Nebraska. It is further
agreed that any legal action between the parties arising out of
this Agreement or the performance of services shall be brought
in a court of competent jurisdiction in Nebraska.
7.12 Subconsultants
Olsson may utilize as necessary in its discretion subconsultants
and other subcontractors. Olsson will be paid for all services
rendered by its subconsultants and other subconsultants as set
forth in this Agreement.
7.13 Assignment
7.13.1 Client and Olsson each are hereby bound and
the partners, successors, executors, administrators and legal
representatives of Client and Olsson (and to the extent
permitted by paragraph 7.13.2 the assigns of Client and Olsson)
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.
7.13.2 Neither Client nor Olsson 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
Olsson from employing such subconsultants and other
subcontractors as Olsson may deem appropriate to assist in the
performance of services under this Agreement.
7.13.3 Nothing under this Agreement shall be
construed to give any rights or benefits in this Agreement to
anyone other than Client and Olsson, and all duties and
responsibilities undertaken pursuant to this Agreement will be
for the sole and exclusive benefit of Client and Olsson and not
for the benefit of any other party. There are no third -party
beneficiaries of this Agreement.
7.14 Indemnity
Olsson and Client mutually agree, to the fullest extent permitted
by law, to indemnify and hold each other harmless from any and
all damages, liabilities or costs, including reasonable attorneys'
fees and defense costs, relating to third party personal injury or
third party property damage and arising from their own negligent
acts, errors or omissions in the performance of their services
under this Agreement, but only to the extent that each party is
responsible for such damages, liabilities or costs on a
comparative basis of fault.
7.15 Limitation on Damages
7.15.1 Notwithstanding any other provision of this
Agreement, and to the fullest extent permitted by law, neither
parry'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.
7.15.2 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, strict
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).
7.15.3 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, attorneys' fees 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
Page 8 of 9
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.
7.16 Entire Agreement/Severability
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. If any part of this Agreement is found
to conflict with applicable law, such part alone shall be null and
void and considered stricken, but the remainder of this
Agreement shall be given full force and effect.
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SCOPE OF SERVICES
This exhibit is hereby attached to and made a part of Letter Agreement for Professional
Services dated November 19, 2024 between Jorgensen + Associates ("Client") and Olsson, Inc.
("Olsson") providing for professional services. Olsson's Scope of Services for Agreement is
indicated below.
PROJECT DESCRIPTION AND LOCATION
Project will be located at: Mud Creek, Washington County, Arkansas
Project Description: Floodplain Analysis and Letter of Map Revision (LOMR)
SCOPE OF SERVICES
Olsson shall provide the following services (Scope of Services) to Client for the Project:
Phase 100 — Mud Creek Floodplain Analysis $15,800.00
Olsson shall provide the following services:
• Perform general Project coordination, including emails and telephone calls with Client
• Attend one (1) teleconference meeting, if required, with Client. Attend one (1)
teleconference meeting, as required, with City of Fayetteville, Arkansas City
Floodplain Administrator to address minor questions. Additional coordination
requirements with Client or others not specifically mentioned in Scope of Services to
discuss or explain Project results will be considered as Additional Services.
• Perform Project coordination activities with Federal Emergency Management Agency
(FEMA) Technical Reviewer as needed to address questions regarding submittal
LOMR Change application
• Obtain copy of effective hydrologic and hydraulic modeling, if available, for Mud Creek
from FEMA Engineering Library or other source. Please note that receipt of FEMA
effective hydraulic model may take up to one (1) to two (2) months as it is subject to
outside influences (e.g., FEMA Library schedule, data transfers, et cetera).
• Review effective modeling to confirm that it matches what is shown in current Flood
Insurance Study information for Washington County, Arkansas and Incorporated
Areas, dated January 25, 2024
o Create replica hydrologic and hydraulic modeling for Project area using
FEMA Standards and Technical Reference guidelines, if no hydrologic or
hydraulic models are available at time of analysis
o Collection of additional data to extend models beyond proposed Project
extents or processing of additional datasets may be required and shall be
considered as additional services and may extend timeline
Obtain publicly available topographic data for Project area and process data in
preparation for further refinement of existing hydraulic modeling and floodplain
mapping
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Upon completion of review, Olsson shall make updates to effective hydrologic model,
where necessary, to develop a proposed conditions model. If no hydrologic model is
available, Olsson shall create a replica hydrologic model using FEMA Standard and
Technical Reference guidelines. Updates to hydrologic modeling may include, but are
not limited to:
o Review and updated as needed, land use and Manning's roughness
coefficient data
o Recalculate Time of Concentration for Project Area
Continue to hydraulic analysis if there is No Adverse Impact to hydrologic conditions
of Mud Creek (e.g., no increase in reported flows). If a No -Adverse -Impact condition
is not achieved, Olsson shall perform up to one (1) additional modeling scenario in an
attempt to meet a No -Adverse -Impact condition. If additional modeling scenarios,
outside of additional scenario run listed above, are required, these tasks may be
performed as Additional Services.
Refine hydraulic modeling to add additional detailed information using data acquired,
as necessary at Project location to create Existing Conditions/Corrected Effective
Model. These updates may include, but are not limited to:
o Update United States Army Corps of Engineers (USACE) HEC-RAS
(Version 6.x) program
o Review and update Manning's "n" roughness coefficients, as needed
o Define downstream boundary condition for current Project area of interest
o Incorporation of any survey or topographic data deemed necessary for
modeling Project area
o Develop floodway encroachments along Mud Creek upstream of Highway
265 to Fayetteville, Arkansas city limits
Use developed copy of Corrected Effective model and modify geometry to develop a
Proposed Conditions Model, representing proposed development. Results of
Proposed Conditions model will be compared against results of Corrected Effective
model to determine if development creates an adverse impact on neighboring
properties.
If No -Adverse -Impact condition is achieved, Olsson shall prepare a short report with
supporting documentation for submittal to Client describing methods used and results
determined in analysis for submission to City of Fayetteville, Arkansas Floodplain
Administrator. If No -Adverse -Impact condition is not achieved, Olsson shall perform
up to one (1) additional model scenario in an attempt to meet a No -Adverse -Impact
condition. If additional modeling scenarios, outside of one (1) scenario run listed above
is required, these tasks may be performed as Additional Services
Prepare preliminary LOMR application, including supporting mapping and profiles
along Project area, and submit to Client for review and comment. Floodplain
information will be prepared to FEMA's Floodplain Boundary Standards and DFIRM
format.
Address up to one (1) set of comments provide by Client and City of Fayetteville,
Arkansas Floodplain Administrator within two (2) weeks following receipt. After
addressing comments, Olsson shall finalize No -Adverse -Impact documentation.
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Phase 200 — LOMR Application and Fee
Olsson shall provide the following services:
$11,700.00
• Update preliminary LOMR application with as -built data provided by Client
• Prepare a draft property Owner notification for inclusion in LOMR Application
• Upon acceptance of LOMR by Client, Olsson shall finalize and submit final LOMR
application to City of Fayetteville, Arkansas Floodplain Administrator for approval and
then to FEMA for review and acceptance
• Address comments received by Client, Fayetteville, Arkansas Floodplain
Administrator, or FEMA's LOMR Reviewer regarding hydraulic analysis, LOMR
Application details, and property Owner notifications within two (2) weeks after receipt.
Questions directed to development will be Client's responsibility.
• Work with City of Fayetteville, Arkansas to distribute property Owner notifications upon
approval from FEMA
• Current LOMR review fee for an online submittal is $8,000.00. Initial fee is included in
this Scope of Services. If review fee changes prior to submittal of LOMR, Additional
Services in amount of increase will be required. All outstanding invoices, as well as
review fee, must be paid in full before submittal of LOMR to FEMA.
• Anticipate completion of Report and Documentation will be completed within two (2)
weeks from completion of Hydraulic Analysis
PROJECT TOTAL: $27,500.00
ASSUMPTIONS
Project area for hydrologic analysis will be all areas that drain to N Crossover Road,
Fayetteville, Arkansas approximately 1,200 feet downstream of Project Location
Project area for hydraulic analysis will be from effective lettered cross section G
upstream to Fayetteville City Limits as shown on Washinton County, Arkansas, and
Incorporated Areas Flood Insurance Rate Map (FIRM) 05143CO230G, dated January
25, 2024
o Survey data will be provided to Olsson by Client for Project area and
structures along Mud Creek required to perform analyses. Necessary
survey data shall be certified by a registered Professional Surveyor in State
of Arkansas and shall be provided in a Horizontal Datum of NAD83,
Arkansas State Plane North Zone (US Survey Foot) and a Vertical Datum
of NAVD 88. Olsson shall perform coordination with surveyor to describe
information required.
EXCLUSIONS
Coordination with impacted property Owners and/or local, state, or federal entities
that may have a regulatory jurisdiction over Project area, such as Arkansas Natural
Resources Division, U.S. Fish and Wildlife, USACE, et cetera unless identified in
Project Scope of Services specifically. If needed, coordination for these entities may
be performed as Additional Services.
Additional data of analyses requested by Client of City will be considered as
Additional Services, unless identified in the above Scope of Services
Meetings with Client or Others not specifically described in the above Scope of
Services will be considered as Additional Services
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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.
Page 4 of 4
REIMBURSABLE EXPENSE SCHEDULE
The expenses incurred by Olsson or Olsson's independent professional associates or consultants
directly or indirectly in connection with the Project shall be included in periodic billing as follows:
Classification
Automobiles (Personal Vehicle)
Suburban's and Pick -Ups
Automobiles (Olsson Vehicle)
Other Travel or Lodging Cost
Meals
Printing and Duplication including Mylars and Linens
In -House
Outside
Postage & Shipping Charges for Project Related Materials
including Express Mail and Special Delivery
Film and Photo Developing
Telephone and Fax Transmissions
Miscellaneous Materials & Supplies Applicable to this Project
Copies of Deeds, Easements or other Project Related Documents
Fees for Applications or Permits
Sub -Consultants
Taxes Levied on Services and Reimbursable Expenses
Cost
$0.67/mile*
$0.75/mile*
$95.00/day
Actual Cost
Actual Cost
Actual Cost
Actual Cost+10%
Actual Cost
Actual Cost+10%
Actual Cost+10%
Actual Cost+10%
Actual Cost+10%
Actual Cost+10%
Actual Cost+10%
Actual Cost
"Rates consistent with the IRS Mileage Rate Reimbursement Guidelines (Subject to Change).
Eff. 01/2024 Page 1 of 1
