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HomeMy WebLinkAbout08-25 RESOLUTION113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 8-25 File Number: 2024-00949 FARMINGTON BRANCH FLOOD STUDY (COST SHARE AGREEMENT): A RESOLUTION TO APPROVE A COST SHARE AGREEMENT WITH FAYETTEVILLE PUBLIC SCHOOLS AND TITAN TLH, LLC. IN THE AMOUNT OF $33,050.00 FOR A DETAILED ENGINEERING FLOOD STUDY OF THE FARMINGTON BRANCH FLOODPLAIN WHEREAS, Fayetteville Public Schools has recently proposed improvements to John L. Colbert Middle School which partially lies within a floodplain on the property; and WHEREAS, Titan TLH, LLC currently has property south of the school under contract and is planning a development that could also encroach into the floodplain; and WHEREAS, the current proposed improvements to the school and the proposed development south of the school would be required to provide a flood study; and WHEREAS, rather than have each development provide individual flood studies, staff recommends a cost share agreement that will provide for a detailed analysis of the broader floodplain in that area. 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 and Titan TLH, LLC in the amount of $33,050.00 for a detailed engineering flood study of Farmington Branch from the city limits to West Martin Luther King Jr. Blvd and Farmington Branch Tributary from Farmington Branch to the upstream limits of the current Zone A floodplain, with the cost of the study split equally between the parties. PASSED and APPROVED on January 7, 2025 Approved: E-SIGNED by Molly Rawn on 2025-01-14 21:49:42 GMT Molly Rawn, Mayor NNA" I I rR NI Attest: ` •'STY 0, sGi E-SIGNED by Kara Paxton 20: FAYETTEVILLE:�= on 2025-01-14 23:19:39 GMT �•q 511'� y •RKgNSP�S� Kara Paxton, City Clerk Treasurer/Z,,/��I TO \` 0``��� 1111 Il Page 1 CITY OF FAYETTEVILLE ARKANSAS MEETING OF JANUARY 7, 2025 CITY COUNCIL MEMO 2024-00949 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 $33,050 with Fayetteville Public Schools and Titan TLH, LLC for a detailed engineering flood study of Farmington Branch from the City Limits to W Martin Luther King Jr Blvd and Farmington Branch Tributary from Farmington Branch to the upstream limits of the current Zone A floodplain. RECOMMENDATION: Staff recommends approval of a cost share agreement in the amount of $33,050 with Fayetteville Public Schools and Titan TLH, LLC for a detailed engineering flood study of Farmington Branch from the City Limits to W Martin Luther King Jr Blvd and Farmington Branch Tributary from Farmington Branch to the upstream limits of the current Zone A floodplain. BACKGROUND: Fayetteville Public Schools (FPS) has recently proposed improvements to John L Colbert Middle School which partially lies within the Zone A floodplain on the property. In addition, Titan TLH, LLC currently has property south of the school under contract which could also encroach within the Zone A floodplain. DISCUSSION: The current proposed improvements to the school and the proposed development south of the school would be required to provide a flood study for any proposed encroachment into the Zone A floodplain. Rather than have each development provide their own analysis of the stream, staff feels it much more efficient and accurate to analyze the developments together. Additionally, there is a considerable Zone A area on Farmington Branch south of these locations. To more accurately analyze the developments in question, some study of Farmington Branch is also required. The city and surrounding property owners would benefit from this detailed study as well. As such, staff is proposing to enter into a cost share agreement that would perform a detailed analysis of Farmington Branch and the Farmington Branch tributary in question. The current proposal is for each party to pay 1/3 of the cost of the study. This allows for some economy of scale and a reduced cost to all parties as compared to performing flood studies individually. As also stated, staff feels that the results would be much more accurate by taking into consideration the system and proposed improvements as a whole and be beneficial to all parties included. BUDGET/STAFF IMPACT: The total cost of the study is proposed to be $33,050 with the total cost being split equally by all parties. The Mailing address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 City portion would be $11,017 and the source of funding would be 02108.1, Sales Tax Capital Improvement Other Drainage Improvements. ATTACHMENTS: SRF (#3) , Farmington Branch and Tributary Flood Study Cost Share (#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 #: 2024-00949 Approval of a cost share agreement in the amount of $33,050 with Fayetteville Public Schools and Titan TLH, LLC for a detailed engineering flood study of Farmington Branch from the City Limits to W Martin Luther King Jr Blvd and Farmington Branch Tributary from Farmington Branch to the upstream limits of the current Zone A floodplain. A RESOLUTION TO APPROVE A COST SHARE AGREEMENT WITH FAYETTEVILLE PUBLIC SCHOOLS AND TITAN TLH, LLC. IN THE AMOUNT OF $33,050.00 FOR A DETAILED ENGINEERING FLOOD STUDY OF THE FARMINGTON BRANCH FLOODPLAIN WHEREAS, Fayetteville Public Schools has recently proposed improvements to John L. Colbert Middle School which partially lies within a floodplain on the property; and WHEREAS, Titan TLH, LLC currently has property south of the school under contract and is planning a development that could also encroach into the floodplain; and WHEREAS, the current proposed improvements to the school and the proposed development south of the school would be required to provide a flood study; and WHEREAS, rather than have each development provide individual flood studies, staff recommends a cost share agreement that will provide for a detailed analysis of the broader floodplain in that area. 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 and Titan TLH, LLC in the amount of $33,050.00 for a detailed engineering flood study of Farmington Branch from the city limits to West Martin Luther King Jr. Blvd and Farmington Branch Tributary from Farmington Branch to the upstream limits of the current Zone A floodplain, with the cost of the study split equally between the parties. Page 1 Chris Brown Submitted By City of Fayetteville Staff Review Form 2024-949 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 $33,050 with Fayetteville Public Schools and Titan TLH, LLC for a detailed engineering flood study of Farmington Branch from the City Limits to W Martin Luther King Jr Blvd and Farmington Branch Tributary from Farmington Branch to the upstream limits of the current Zone A floodplain. 4470.621.8810-5314.00 Account Number 02108.1 Project Number Budgeted Item? Yes Does item have a direct cost? Yes Is a Budget Adjustment attached? No Budget Impact: Sales Tax Capital Improvement Fund Other Drainage Improvements Project Title Total Amended Budget Expenses (Actual+Encum) Available Budget Item Cost Budget Adjustment Remaining Budget $ 311,130.00 $ 59,224.96 $ 251,905.04 $ 11,017.00 240,888.04 V20221130 Purchase Order Number: Previous Ordinance or Resolution # Change Order Number: Original Contract Number: Comments: Approval Date: CONTRACTUAL AGREEMENT FOR COST SHARE OF FARMINGTON BRANCH AND TRIBUTARY FLOOD STUDY This Agreement, made and entered into on this day of January 2025, by and between the City of Fayetteville, Arkansas ("City"), Titan TLH, LLC ("Titan"), and Fayetteville Public School District ("FPS"), witnesseth: WHEREAS, FPS and Titan have planned developments on the East side of S Rupple Road just north of W Martin Luther King Jr BLVD which may encroach or already encroach into Zone A floodplain areas; and WHEREAS, Due to the fact Zone A floodplain exists on the properties a detailed flood study is required to be performed; and WHEREAS, the City has an interest in extending the detailed flood study for Farmington Branch from the City limits to W Martin Luther King Jr Blvd, all of which is outside of the proposed project areas for FPS and Titan; and WHEREAS, FPS, the City and Titan recognize that a full and complete flood study of the entire area as shown in Exhibit A is beneficial to all parties. NOW, THEREFORE, the City of Fayetteville, Arkansas, Fayetteville Public School District and Titan TLH, LLC agree as follows: 1. The City of Fayetteville, Arkansas agrees to: A. Reimburse FPS for 1/3 of the cost of the detailed floodplain study from the end of the existing detailed study including Farmington Branch from the City limits to W Martin Luther King Jr BLVD and Farmington Branch Tributary from its confluence with Farmington Branch to the upstream limits of the current Zone A area. The total cost of said study shall not exceed $33,050 as shown in Exhibit B unless agreed upon by all parties in advance. B. Payments due to FPS shall be remitted within sixty (60) days after receipt of valid invoices. C. Withhold all permit approvals from any development required to contribute to the study until proof of payment is provided. 2. Titan, TLH, LLC agrees to: A. Reimburse FPS for 1/3 of the cost of the detailed floodplain study from the end of the existing detailed study including Farmington Branch from the City limits to W Martin Luther King Jr Blvd and Farmington Branch Tributary from its confluence with Farmington Branch to the upstream limits of the current Zone Page 1 of 3 A area. The total cost of said study shall not exceed $33,050 as shown in Exhibit B unless agreed upon by all parties in advance. B. Payments due to FPS shall be remitted within sixty (60) days after receipt of valid invoices. 3. 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 l-lEC-RAS files. C. Pay for the study (with reimbursement of 1/3 of the cost of the full study amount by the City of Fayetteville and 1 /3 of the cost of the full study amount by Titan TLH, LLC. The total cost of said study shall not exceed $33,050 without agreement by all 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 By: JOI 1zc? ATTEST: an CITY OF FAYETTEVILLE, ARKANSAS E-SIGNED by Molly Rawn By: on 2025-01-14 21:49:45 GMT MOLLY RAWN Mayor ATTEST: `�WARK 1111,161 E-SIGNED by Kara Paxton��: By: on 2025-01-14 23:19:44 GNP_ FAYE17EVILLE;X= KARA PAXTON, City Clerk Ikk r 5 GT N C; J N`�� W1,1111110 x Page 2 of 3 TITAN TLH, LLC C� By: —1/O 4i TONYA HA RIS, Incorporator/Organizer WITNESS: B Page 3 of 3 EXHIBIT B olsson a LETTER AGREEMENT FOR PROFESSIONAL SERVICES November 20, 2024 Jorgensen & Associates Attn: Blake Jorgensen, PE 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") North Fork Farmington Branch and North Fork Farmington Branch Tributary 1, Fayetteville, 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 the event of any conflict or inconsistency between this Letter Agreement, and General Provisions regarding services to be performed by Olsson, terms of the 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 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. 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 the 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., Federal Emergency Management Agency (FEMA) Effective Model, Client -provided development data) Anticipated Phase 200 Completion Date: Three (3) months following receipt of as -built data 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). 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 Thirty - Three Thousand Fifty Dollars ($33,050.00) plus reimbursable expenses in accordance with 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 the 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 2of3 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. 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, INC. By 0-44-407� Lee Beshoner, PE, CFM By &i4 r-7"- - Brent Johnson, PE, enior Team Leader 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: JORGENSEN & ASSOCIATES M Signature Print Name Title Dated Attachments General Provisions Scope of Services Reimbursable Expense Schedule 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 20, 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 Page 3 of 9 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; (e) 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) year from 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 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. 7.15.2 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. Page 9 of 9 SCOPE OF SERVICES This exhibit is hereby attached to and made a part of the Letter Agreement for Professional Services dated November 20, 2024 between Jorgenson + Associates ("Client") and Olsson, Inc. ("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: North Fork Farmington Branch and North Fork Farmington Branch Tributary 1, Fayetteville, 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: DESIGN SERVICES Phase 100 — North Fork Farmington Branch and Tributary 1 Floodplain Analysis $20,350.00 Olsson shall provide the following services • Perform general project coordination, including project emails and telephone calls with Client. • Attend one (1) teleconference meeting, if required, with Client. Coordination time, 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. • Project coordination activities with Federal Emergency Management Agency (FEMA) Technical Reviewer, as required, to address questions regarding submittal Letter of Map Change application. • Obtain a copy of effective hydrologic and hydraulic modeling, if available, for North Fork Farmington Branch (NFFB) and North Fork Farmington Branch Tributary 1 (NFFBT1) from FEMA Engineering Library or other source. Please note that receipt of FEMA effective 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 The project area for hydrologic analysis will be all areas that drain to N Holland Drive, Fayetteville, Arkansas extending approximately 2,300 feet downstream of the Project Location. Page 1 of 4 o The project area for the hydraulic analysis will be from NFFB effective lettered cross section F upstream to Highway 62 (Martin Luther King Junior Blvd), Fayetteville, Arkansas and NFFBT1 from its confluence with NFFB upstream to S Dinsmore Trail, Fayetteville, Arkansas as shown on Washinton County, Arkansas, and Incorporated Areas Flood Insurance Rate Map (FIRM) 05143CO215G, dated January 25, 2024. o If collection of additional data to extend models beyond proposed Project extents or processing of additional datasets is required, these tasks will 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. Upon completion of review, Olsson shall make updates to effective hydrologic model, where necessary, to develop a proposed conditions model. 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. If there is No Adverse Impact to hydrologic conditions of North Fork Farmington Branch and North Fork Farmington Branch Tributary 1 (e.g., no increase in reported flows), Olsson shall continue to hydraulic analysis. 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 may be performed as Additional Services. Refine hydraulic modeling to add additional detailed information, as necessary at Project location to create Existing Conditions/Corrected Effective Model. These updates may include, but are not limited to: o Update USACE's HEC-RAS (Version 6.x) program. o Review and update Manning's "n" roughness coefficients, as required. 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 NFFB, from effective cross section E upstream to Highway 62, and NFFBT1, from the confluence with NFFB upstream to S Dinsmore Trail, Fayetteville, Arkansas. Use 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 proceed with report. 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 may be performed as Additional Services. If a No -Adverse Impact condition is achieved, Olsson shall finalize and prepare a short report with supporting documentation for submittal to Client, describing methods used Page 2 of 4 and results determined in this analysis for submission to City of Fayetteville, Arkansas Floodplain Administrator. Prepare preliminary LOMR application, including supporting mapping and profiles along Project area, and submit it 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 from Client and City Floodplain Administrator within two (2) weeks following receipt. After addressing comments, Olsson shall finalize No -Adverse -Impact documentation. Phase 200 — LOMR Application and Fee Olsson shall provide the following services $12,700.00 • Update preliminary LOMR application from report with as -built data provided by Client. • Prepare draft property Owner notification for inclusion in LOMR Application. • Upon Client's acceptance of LOMR, Olsson shall finalize and submit final LOMR application to City of Fayetteville, Arkansas Floodplain Administrator for approval and to FEMA for review and acceptance. • Address comments from Client, City 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 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. PROJECT TOTAL: $33,050.00 ADDITIONAL SERVICES If no hydrologic or hydraulic models are available at time of analysis, Olsson shall create replica hydrologic and hydraulic modeling for Project area using FEMA standards and Technical Reference guidelines. ASSUMPTIONS Survey data will be provided by Client for Project area and structures along NFFB and NFFBT1 in Project area. 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, as 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, U.S. Army Corps of Engineers, et cetera unless identified in the above Scope of Services specifically. If required, coordination for these entities may be performed as Additional Services. Page 3 of 4 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 olsson a 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). 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