===== PDF PAGE 20 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO INFRASTRUCTURE COMMITTEE AGENDA ITEM SUMMARY ITEM TITLE: AGENDA ITEM NUMBER: Resolution No. 23-R-0068 - Engineering Enterprises, Inc. - Professional Engineering Services for Preparation of a Lead COMMITTEE AGENDA DATE: August 3, 2023 COUNCIL AGENDA DATE: August 21 , 2023Service Line Replacement Plan in an Amount Not to Exceed $68, 184.00 STAFF REVIEW: Mehul T. Patel, P.E., CFM- Director of Public Works SIGNATURE _________ _ APPROVED BY CITY ADMINISTRATOR: Michael L. Guttman SIGNATURE. _________ _ ITEM SUMMARY: The Lead Service Line Replacement and Public Notification Act that became effective on January 1, 2022, requires the City of West Chicago to develop, implement, and maintain a comprehensive Water Service Line (WSL) Inventory and a Lead Service Line Replacement (LSLR) Plan. On April 13, 2023, the City completed its initial WSL inventory based on the best available information and submitted to the Illinois Environmental Protection Agency (IEPA). Based on the available information, the City has approximately 551 full or partial lead water service lines. The Initial LSLR Plan is due April 15, 2024, with annual updates required in 2025 and 2026. The Final LSLR Plan is due before April 15, 2027. Engineering Enterprises, Inc. (EEi) has successfully worked with multiple communities within the Chicagoland area to prepare a LSLR Plan as well as a Project Plan. EEi's proposed fees of $68, 184.00 is reasonable for the required effort based on EEi's experience performing similar services for other Chicagoland communities. The information required to be included in LSLRP requires similar efforts regardless of the number of services present in a community. This is an unbudgeted item in FY 2023, but there are unused funds from the Waste Lime Sludge Removal Project (about $244,400.00). Staff recommends awarding the professional services contract to EEi. ACTIONS PROPOSED: Approve Resolution No. 22-R-0068 authorizing the Mayor to execute a contract with Engineering Enterprises, Inc. of Sugar Grove, IL for professional engineering services related to the preparation of Lead Service Line Replacement Plant in an amount not to exceed $68, 184.00. COMMITTEE RECOMMENDATION: ===== PDF PAGE 21 ===== [Extraction: embedded PDF text] RESOLUTION NO. 23-R-0068 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE WITH ENGINEERING ENTERPRISES, INC. OF SUGAR GROVE, IL FOR PROFESSIONAL ENGINEERING SERVICES RELATED TO THE PREPARATION OF LEAD SERVICE LINE REPLACEMENT PLAN IN AN AMOUNT NOT TO EXCEED $68,184.00. BE IT RESOLVED by the City Council of the City of West Chicago, in regular session assembled, that the Mayor is hereby authorized to execute a Contract with Engineering Enterprises, Inc. of Sugar Grove, IL for professional engineering services related to the preparation of Lead Service Line Replacement Plant in an amount not to exceed $68, 184.00, in substantially the form attached hereto and incorporated herein as Exhibit "A". APPROVED this 21st day of August 2023. AYES: NAYES: ABSTAIN: ABSENT: Mayor, Ruben Pineda ATTEST: Executive Office Manager, Valeria Perez ===== PDF PAGE 22 ===== [Extraction: embedded PDF text] July 20, 2023 Mr. Mehul Patel, P.E., CFM Director of Public Works City of West Chicago 1400 Hawthorn Lane West Chicago, IL 60185 Re: PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN City of West Chicago, DuPage County, IL Dear Mr. Patel: Enclosed for your review and consideration are two copies of our proposed agreement for the subject project. The attached agreement includes a detailed scope of services and estimate of level of effort and associated cost for the project. We are proposing to provide our professional engineering services for a fixed fee amount of $68, 184. Our proposed schedule indicates submitting the Project Plan to the IEPA by the end of November 2023, assuming project initiation by mid-August and timely receipt of requested information. We look forward to working with you and members of your staff on this project. If you have any questions or require any additional information, please do not hesitate to contact us. Respectfully submitted, ENGINEERING ENTERPRISES, INC. Jeffrey W. Freeman, P.E., CFM, LEED AP Chief Executive Officer JWF/vh Enclosures pc: STD, TGH, VH, ARS, DMT - EEi (Via E-mail) ===== PDF PAGE 23 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN Agreement for Professional Services PWSLP Project Plan and LSL Replacement Plan THIS AGREEMENT, by and between the City of West Chicago, hereinafter referred to as the "City" or "OWNER" and Engineering Enterprises, Inc. hereinafter referred to as the "Contractor" or "ENGINEER" agrees as follows: A. Services: The Engineer shall furnish the necessary personnel, materials, equipment and expertise to make the necessary investigations, analysis and calculations along with exhibits, cost estimates and narrative, to complete all necessary engineering services to the City as indicated on the included Attachment A. B. Term: Services will be provided beginning on the date of execution of this agreement and continuing, until terminated by either party upon 7 days written notice to the non- terminating party or upon completion of the Services. Upon termination the Contractor shall be compensated for all work performed for the City prior to termination. C. Compensation and maximum amounts due to Contractor: Contractor shall receive as compensation for all work and services to be performed herein an amount based on the Estimate of Level of Effort and Associated Cost included in Attachment B. The professional engineering services will be paid for as a fixed fee in the amount of $68, 184. All payments will be made accordingly to the Illinois State Prompt Payment Act and not less than once every thirty days. D. Changes in Rates of Compensation: In the event that this contract is designated in Section B hereof as an Ongoing Contract, Contractor, on or before February 1st of any given year, shall provide written notice of any change in the rates specified in Section C hereof (or on any attachments hereto) and said changes shall only be effective on and after May 1st of that same year. E. Ownership of Records and Documents: Contractor agrees that all books and records and other recorded information developed specifically in connection with this agreement shall remain the property of the City. Contractor agrees to keep such information confidential and not to disclose or disseminate the information to third parties without the consent of the City. This confidentiality shall not apply to material or information, which would PAGE 1•• ===== PDF PAGE 24 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN otherwise be subject to public disclosure through the freedom of information act or if already previously disclosed by a third party. Upon termination of this agreement, Contractor agrees to return all such materials to the City. The City agrees not to modify any original documents produced by Contractor without Contractor's consent. Modifications of any signed duplicate original document not authorized by ENGINEER will be at OWNER's sole risk and without legal liability to the ENGINEER. Use of any incomplete, unsigned document will, likewise, be at the OWNER's sole risk and without legal liability to the ENGINEER. F. Governing Law: This contract shall be governed and construed in accordance with the laws of the State of Illinois. Venue shall be in Kane County, Illinois. G. Independent Contractor: Contractor shall have sole control over the manner and means of providing the work and services performed under this agreement. The City's relationship to the Contractor under this agreement shall be that of an independent contractor. Contractor will not be considered an employee to the City for any purpose. H. Certifications: Employment Status: The Contractor certifies that if any of its personnel are an employee of the State of Illinois, they have permission from their employer to perform the service. Anti-Bribery: The Contractor certifies it is not barred under 30 Illinois Compiled Statutes 500/50-5(a) - (d) from contracting as a result of a conviction for or admission of bribery or attempted bribery of an officer or employee of the State of Illinois or any other state. Loan Default: If the Contractor is an individual, the Contractor certifies that he/she is not in default for a period of six months or more in an amount of $600 or more on the repayment of any educational loan guaranteed by the Illinois State Scholarship Commission made by an Illinois institution of higher education or any other loan made from public funds for the purpose of financing higher education (5 ILCS 385/3). Felony Certification: The Contractor certifies that it is not barred pursuant to 30 Illinois Compiled Statutes 500/50-10 from conducting business with the State of Illinois or any agency as a result of being convicted of a felony. Barred from Contracting: The Contractor certifies that it has not been barred from contracting as a result of a conviction for bid-rigging or bid rotating under 720 Illinois Compiled Statutes 5/33E or similar law of another state. PAGE2•II ===== PDF PAGE 25 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN Drug Free Workplace: The Contractor certifies that it is in compliance with the Drug Free Workplace Act (30 Illinois Compiled Statutes 580) as of the effective date of this contract. The Drug Free Workplace Act requires, in part, that Contractors, with 25 or more employees certify and agree to take steps to ensure a drug free workplace by informing employees of the dangers of drug abuse, of the availability of any treatment or assistance program, of prohibited activities and of sanctions that will be imposed for violations; and that individuals with contracts certify that they will not engage in the manufacture, distribution, dispensation, possession, or use of a controlled substance in the performance of the contract. Non-Discrimination, Certification, and Equal Employment Opportunity: The Contractor agrees to comply with applicable provisions of the Illinois Human Rights Act (775 Illinois Compiled Statutes 5), the U.S. Civil Rights Act, the Americans with Disabilities Act, Section 504 of the U.S. Rehabilitation Act and the rules applicable to each. The equal opportunity clause of Section 750.10 of the Illinois Department of Human Rights Rules is specifically incorporated herein. The Contractor shall comply with Executive Order 11246, entitled Equal Employment Opportunity, as amended by Executive Order 11375, and as supplemented by U.S. Department of Labor regulations (41 C.F.R. Chapter 60). The Contractor agrees to incorporate this clause into all subcontracts under this Contract. International Boycott: The Contractor certifies that neither it nor any substantially owned affiliated company is participating or shall participate in an international boycott in violation of the provisions of the U.S. Export Administration Act of 1979 or the regulations of the U.S. Department of Commerce promulgated under that Act (30 ILCS 582). Record Retention and Audits: If 30 Illinois Compiled Statutes 500/20-65 requires the Contractor (and any subcontractors) to maintain, for a period of 3 years after the later of the date of completion of this Contract or the date of final payment under the Contract, all books and records relating to the performance of the Contract and necessary to support amounts charged to the City under the Contract. The Contract and all books and records related to the Contract shall be available for review and audit by the City and the Illinois Auditor General. If this Contract is funded from contracUgrant funds provided by the U.S. Government, the Contract, books, and records shall be available for review and audit by the Comptroller General of the U.S. and/or the Inspector General of the federal sponsoring agency. The Contractor agrees to cooperate fully with any audit and to provide full access to all relevant materials. United States Resident Certification: (This certification must be included in all contracts involving personal services by non-resident aliens and foreign entities in accordance with requirements imposed by the Internal Revenue Services for withholding and reporting federal income taxes.) The Contractor certifies that he/she is a: .x. United States Citizen Resident Alien Non-Resident Alien PAGE3·• ===== PDF PAGE 26 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN The Internal Revenue Service requires that taxes be withheld on payments made to non resident aliens for the performance of personal services at the rate of 30%. Tax Payer Certification : Under penalties of perjury, the Contractor certifies that its Federal Tax Payer Identification Number or Social Security Number is (provided separately) and is doing business as a (check one): _Individual _Real Estate Agent _Sole Proprietorship _Government Entity _Partnership _Tax Exempt Organization (IRC 501 (a) only) lL Corporation _Not for Profit Corporation _Trust or Estate _ Medical and Health Care Services Provider Corp. I. Indemnification: Contractor shall indemnify and hold harmless the City and City's agents, servants, and employees against all loss, damage, and expense which it may sustain or for which it will become liable on account of injury to or death of persons, or on account of damage to or destruction of property resulting from the performance of work under this agreement by Contractor or its Subcontractors, or due to or arising in any manner from the wrongful act or negligence of Contractor or its Subcontractors of any employee of any of them. In the event that the either party shall bring any suit, cause of action or counterclaim against the other party, the non-prevailing party shall pay to the prevailing party the cost and expenses incurred to answer and/or defend such action, including reasonable attorney fees and court costs. In no event shall the either party indemnify any other party for the consequences of that party's negligence, including failure to follow the ENGINEER's recommendations. J. Schedule Contractor agrees to complete the project in accordance with the schedule summarized within Attachment C. K. Additional Terms or Modification: The terms of this agreement shall be further modified as provided on the Attachments. Except for those terms included on the Attachments, no additional terms are included as a part of this agreement. All prior understandings and agreements between the parties are merged into this agreement, and this agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. In the event that any provisions of this agreement shall be held to be invalid or unenforceable, the remaining provisions shall be valid and binding on the parties. The list of Attachments are as follows: Attachment A: Scope of Services Attachment B: Estimated Level of Effort and Associated Cost PAGE4·• ===== PDF PAGE 27 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN Attachment C: Anticipated Project Schedule Attachment D: Standard Terms and Conditions L. Notices: All notices required to be given under the terms of this agreement shall be given mail, addressed to the parties as follows: For the City of West Chicago: For the Engineer: Director of Public Works Engineering Enterprises, Inc. 475 Main Street 52 Wheeler Road West Chicago, IL 60185 Sugar Grove Illinois 60554 Either of the parties may designate in writing from time to time substitute addresses or persons in connection with required notices. Agreed to this _day of ____ , 2023. City of West Chicago: Engineering Enterprises, Inc.: Attest: Attest: Title: ________ _ Project Manager PAGES•II ===== PDF PAGE 28 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO, IL PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN ATTACHMENT A- SCOPE OF SERVICES PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN City of West Chicago, DuPage County, IL The Lead Service Line Replacement and Public Notification Act (Act) that became effective on January 1, 2022, requires the City of West Chicago to develop, implement, and maintain a comprehensive Water Service Line (WSL) Inventory and a Lead Service Line Replacement (LSLR) Plan. The City is currently conducting the required WSL Inventory, which must be submitted to the Illinois Environmental Protection Agency (IEPA) before April 15, 2024. The Initial LSLR Plan is due April 15, 2024 with annual updates required in 2025 and 2026. The Final LSLR Plan is due before April 15, 2027. The City is seeking engineering services to assist in developing the Initial LSLR Plan. The City's intent is to implement a multi-year lead service line replacement program utilizing funds from the IEPA Public Water Supply Loan Program (PWSLP). To be eligible for the loan, which in some cases may include principal forgiveness, the City must prepare and submit to IEPA a PWSLP Project Plan for review and approval by the IEPA. The City is seeking engineering services to prepare the necessary PWSLP Project Plan. The following list of work items establishes the scope of engineering services for this project: Task 1 - PWSLP Project Plan 1.1 Project Management • Budget tracking • Management of personnel and the engineering contract • General coordination with the City 1.2 Project Kick-Off Meeting • Kick-Off Meeting - EEi will lead a Project Kick-Off Meeting to establish expectations and overall objectives I timelines for the project (1 meeting total) • Coordination, attendance, and meeting outline and minutes 1.3 Prepare Request for Information (RFI) and coordinate with the City regarding loan application requirements. 1.4 Prepare Project Plan including any necessary exhibits and submit to the IEPA. Work includes but is not limited to: • Apply for National Historic Preservation Act and IDNR sign-offs • Complete IEPA Loan Applicant Environmental Checklist • Prepare project cost estimates • Prepare Existing User Charge and 0, M and R Certification Sheet • Revise Project Plan (if necessary) per comments from the IEPA 1.5 Prepare and submit to the City the notification for the Preliminary Environmental Impact Determination (PEID) public hearing. PAGE 1•IJ ===== PDF PAGE 29 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO, IL PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN Task 2 - Initial LSLR Plan 2.1 Project Management • Budget tracking • Management of personnel and the engineering contract • General coordination with the City 2.2 Project Kick-Off Meeting • Kick-Off Meeting - EEi will lead a Project Kick-Off Meeting to establish expectations and overall objectives I timelines for the project (1 meeting total) • Coordination, attendance, and meeting outline and minutes 2.3 Create an Initial LSLR Plan to replace each LSL or galvanized service line connected to downstream lead piping. 2.3.1 Develop a plan for posting the LSLR Plan and other related materials on the City's website. 2.3.2 Summarize the City's Material Inventory including: • Total number of service lines; • Total number of suspected lead service lines; • Total number of known lead service lines; • Total number of lead service lines that have been replaced each year beginning in 2020 2.3.3 Develop a proposed lead service line replacement schedule that includes 1-year, 5-year, 10-year, 15-year, and 20-year goals. 2.3.4 Conduct an analysis of costs and financing options for replacing the lead service lines connected to the community water supply's distribution system, which shall include, but shall not be limited to: • A detailed accounting of costs associated with replacing lead service lines and galvanized lines that are or were connected downstream to lead piping; • Measures to address affordability and prevent service shut-offs for customers or ratepayers; and • Consideration of different scenarios for structuring payments between the utility and its customers over time. 2.3.5 Develop a plan for prioritizing high-risk facilities, such as preschools, daycare centers, daycare homes, group daycare homes, parks, playgrounds, hospitals, and clinics, as well as high-risk areas identified by the community water supply. 2.3.6 Create a map of the areas where lead service lines are expected to be found and the sequence with which those areas will be inventoried, and lead service lines replaced. 2.3. 7 Identify measures for how the community water supply will inform the public of the plan and provide an opportunity for public comment. 2.3.8 Identify measures to encourage diversity in hiring in the workforce required to implement the plan. PAGE2·• ===== PDF PAGE 30 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO, IL PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN 2.4 Workshops 2.4.1 Workshop #1 - EEi will present preliminary findings and ideas for all the items in Task 1. EEi will also lead a discussion to develop consensus with the Public Works Department on the preferences for each item under Task 1. Attendees will include the Public Works Department and Engineering Division of Public Works. 2.4.2 Workshop #2 - EEi will present the Public Works Department's preferences developed during Workshop #1 to a broader audience and lead a discussion to develop consensus I support with the attendees. Attendees will include the City Adminstrator's Office, Communications Department, Finance Department, Community Development, and Public Works Department. 2.5 Report Preparation and Presentations - Initial LSLR Plan 2.5.1 Prepare Draft Initial LSLR Plan for City review • Initial draft due to Staff 1/26/24 • Incorporate comments from Staff and updated plan due 2/16/24 2.5.2 City Council Presentation • 1st Reading 3/5/24 • Approval by City Council tentative 3/12/24 2.5.3 Finalize Initial LSLR Plan by incorporating comments from staff and the City Council and the Final Material Inventory. 2.5.4 Submit Initial LSLR Plan by April 15, 2024, to Illinois EPA on behalf of the City. Task 3 - LSLR Policy Framework Support 3.1 Prepare LSLR policy framework memorandum for eventual submittal to the City Council. 3.2 Attend one (1) City Council Meeting in support of LSLR policy discussions between Public Works Staff and the City Council. The above scope for the Lead Service Line Project and Replacement Plan summarizes the work items that will be completed for this contract. Additional work items, including additional meetings beyond the meetings defined in the above scope shall be considered outside the scope of the base contract and will be billed in accordance with the Standard Schedule of Charges. EXCLUSIONS AND POTENTIAL ADDITIONAL WORK ITEMS Exclusions - LSLR Project Plan ~ Coordination with Army Corps of Engineers if project involves construction in or a near a stream bank, floodway and/or wetland. ~ Coordinating and submitting publications to the newspaper. ~ Obtaining the certified copy of the advertisement for the PEID public hearing. PAGE3·• ===== PDF PAGE 31 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO, IL PWSLP PROJECT PLAN AND LSL REPLACEMENT PLAN » Attending the PEID public hearing. » Preparing written correspondence to IEPA regarding comments or questions received at the PEID public hearing. » Preparing written correspondence to IEPA regarding comments or questions received during the 10-day comment period following the PEID public hearing. Exclusions - LSLR Plan » Completion of LSLR Plan for 2025, 2026 and 2027 submittals. Potential Additional Work Items - Fees are Variable Depending on Particular Desired Scope, so Costs Not Included in Fee Estimates and Requires Further Discussion » Development of City LSLR program webpage » Water Service Line inventory consultation » Attendance at additional City Council meetings besides the City Council meetings specifically identified in the above scope » City Council Meeting presentations besides the presentation specifically identified in the above scope » Funding Nomination Form for IEPA SRF Funding » Financial cost option analysis (i.e., rate studies, payment structures) » Public Relations Assistance » Design/Construction Engineering PAGE4•II ===== PDF PAGE 32 ===== [Extraction: OCR (rendered-page OCR)] ATTACHMENT B - ESTIMATE OF LEVEL OF EFFORT AND ASSOCIATED COST PROFESSIONAL ENGINEERING SERVICES CLIENT PROJECT NUMBER City of West Chicago WV2301 PROJECT TITLE DATE PREPARED BY PWSLP Project Plan and LSL Replacement Plan VHJWF ROLE Ee PIC SPM SPEIl PE GIS ADMIN TASK DESCRIPTION PERSON] WET STD | Ton | -VH| Ku | EMC | Mu] DRA | HRS | COST RATE so $239 $231 San $196 $165 $125 $70 [Proj ject Management - "241 $ 5,280 5,280 ih 3 |City Coordination <4 4 = $ 7,708 4 1 Project Plan IEPA Coordination PWSLP Project Plan Seess 3 1 J ae soe es $ 29, ang .2_|Project Management 2.3 _|Initial LSLR Plan 2.4 |Workshops 2.5 |Report Preparation and Presentation LSLR Replacment Plan Phase 1 (Subtotal): LSLR Policy Framework Memorandum aS SD 2 Se 3 3 City Council Meeting Attendance aa 1,788 LSLR Policy Framework Support (Subtotal):|_ |] S|] =] 7] 2-20 $4,033 | PWSLP Project Plan and LSL Replacement Plan:| 16 | 23 | 48] 124] 7| 347 | $ 68,184 EEI STAFF JWF Jeffrey Freeman, PE, CFM, LEED AP KMM Kristen Meehan, PE STD Steve Dennison, PE EMC Emily Conti, El VH Veronica Hall, PE MJT Matthew Taylor TGH Tim Holdeman DRA Deborah Anderson to 52 Wheeler Road, Sugar Grove. IL 60554 Tel: 630.466.6700 Fax: 630.465.6701 www.eeiweb.com ===== PDF PAGE 33 ===== [Extraction: OCR (rendered-page OCR)] ATTACHMENT C - ESTIMATE SCHEDULE CLIENT PROJECT NUMBER City of West Chicago WV2301 PROJECT TITLE DATE PREPARED BY PWSLP Project Plan and LSL Replacement Plan 7/20/23 VH/JWE TASK NO. TASK DESCRIPTION — 1.2/1.3. |City Coordination L =saee Plan 1.5 _|IEPA Coordination Report Preparation and Presentation LSLR Policy Framework memorandum City Council Meeting Attendance 52 Wheeler Road, Sugar Grove, IL 60554 Tel: 630.466.6700 Fax: 630.466.6701 www ===== PDF PAGE 34 ===== [Extraction: embedded PDF text] ENGINEERING ENTERPRISES, INC. JUNE 2023 ATTACHMENT D: STANDARD TERMS AND CONDITIONS Agreement: These Standard Terms and Conditions, together with the Professional Services Agreement, constitute the entire integrated agreement between the OWNER and Engineering Enterprises, Inc. (EEi) (hereinafter "Agreement"), and take precedence over any other provisions between the Parties. These terms may be amended, but only if both parties consent in writing. Standard of Care: In providing services under this Agreement, the ENGINEER will endeavor to perform in a matter consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under same circumstances in the same locality. ENGINEER makes no other warranties, express or Implied, written or oral under this Agreement or otherwise, in connection with ENGINEER'S service. Construction Engineering and Inspection: The ENGINEER shall not supervise, direct, control, or have authority over any contractor work, nor have authority over or be responsible for the means, methods, techniques sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety of the site, nor for any failure of a contractor to comply with laws and regulations applicable to such contractor's furnishing and performing of its work. The ENGINEER neither guarantees the performance of any contractor nor assumes responsibility for contractor's failure to furnish and perform the work in accordance with the contract documents. The ENGINEER is not responsible for the acts or omissions of any contractor, subcontractor, or supplies, or any of their agents or employees or any other person at the site or otherviise furnishing or performing any work. Shop drawing and submittal review by the ENGINEER shall apply to only the items in the submissions and only for the purpose of assessing if upon installation or incorporation in the project work they are generally consistent with the construction documents. OWNER agrees that the contractor is solely responsible for the submissions and for compliance with the construction documents. OWNER further agrees that the ENGINEER'S review and action in relation to these submissions shall not constitute the provision of means, methods, techniques, sequencing or procedures of construction or extend or safety programs or precautions. The ENGINEER'S consideration of a component does not constitute acceptance of the assembled items. The ENGINEER'S site observation during construction shall be at the times agreed upon in the Project Scope. Through standard, reasonable means the ENGINEER will become generally familiar with observable completed work. If the ENGINEER observes completed work that is inconsistent with the construction documents, that information shall be communicated to the contractor and OWNER for them to address. Opinion of Probable Construction Costs: ENGINEER'S opinion of probable construction costs represents ENGINEER'S best and reasonable judgment as a professional engineer. OWNER acknowledges that ENGINEER has no control over construction costs of contractor's methods of determining pricing, or over competitive bidding by contractors, or of market conditions or changes thereto. ENGINEER cannot and does not guarantee that proposals, bids or actual construction costs will not vary from ENGINEER'S opinion of probable construction costs. Copies of Documents & Electronic Compatibility: Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. When transferring documents in electronic media format, ENGINEER makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of the project. Changed Conditions: If, during the term of this Agreement, circumstances or conditions that were not originally contemplated by or known to the ENGINEER are revealed, to the extent that they affect the scope of services, compensation, schedule, allocation of risks, or other material terms of this Agreement, the ENGINEER may call for renegotiation of appropriate portions of this Agreement. The ENGINEER shall notify the OWNER of the changed conditions necessitating renegotiation, and the ENGINEER and the OWNER shall promptly and in good faith enter into renegotiation of this Agreement to address the changed conditions. If terms cannot be agreed to, the parties agree that either party has the absolute right to terminate this Agreement, in accordance with the termination provision hereof. Hazardous Conditions: OWNER represents to ENGINEER that to the best of its knowledge no Hazardous Conditions (environmental or otherwise) exist on the project site. If a Hazardous Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER and, to the extent of applicable Laws and Regulations, appropriate governmental officials. It is acknowledged by both parties that ENGINEER's scope of services does not include any services related to a Hazardous Condition. In the event ENGINEER or any other party encounters a Hazardous Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Condition; and (ii) warrants that the project site is in full compliance with applicable Laws and Regulations. Consequential Damages: Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the OWNER nor the ENGINEER, their respective officers, directors, partners, employees, contractors, or subcontractors shall be liable to the other or shall make any claim for any incidental, indirect, or consequential damages arising out of or connected in any way to the Project or to this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of PAGE 1•II ===== PDF PAGE 35 ===== [Extraction: embedded PDF text] ENGINEERING ENTERPRISES, INC. JUNE 2023 profit, loss of business, loss of income, loss of reputation, or any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract, and breach of strict or implied warranty. Both the OWNER and the ENGINEER shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in this project. Termination: This Agreement may be terminated for convenience, without cause, upon fourteen (14) days written notice of either party. In the event of termination, the ENGINEER shall prepare a final invoice and be due compensation as set forth in the Professional Services Agreement for all costs incurred through the date of termination. Either party may terminate this Agreement for cause upon giving the other party not less than seven (7) calendar days' written notice for the following reasons: (a) Substantial failure by the other party to comply with or perform in accordance with the terms of the Agreement and through no fault of the terminating party; (b) Assignment of the Agreement or transfer of the project without the prior written consent of the other party; (c) Suspension of the project or the ENGINEER'S services by the OWNER for a period of greater than ninety (90) calendar days, consecutive or in the aggregate. (d} Material changes in the conditions under which this Agreement was entered into, the scope of services or the nature of the project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. Payment of Invoices: Invoices are due and payable within 30 days of receipt unless otherwise agreed to in writing. Third Party Beneficiaries: Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the OWNER or the ENGINEER. The ENGINEER'S services under this Agreement are being performed solely and exclusively for the OWNER'S benefit, and no other party or entity shall have any claim against the ENGINEER because of this Agreement or the performance or nonperformance of services hereunder. The OWNER and ENGINEER agree to require a similar provision in all contracts with contractors, subcontractors, vendors and other entities involved in this Project to carry out the intent of this provision. Force Majeure: Each Party shall be excused from the performance of its obligations under this Agreement to the extent that such performance is prevented by force majeure (defined below) and the nonperforming party promptly provides notice of such prevention to the other party. Such excuse shall be continued so long as the condition constituting force majeure continues. The party affected by such force majeure also shall notify the other party of the anticipated duration of such force majeure, any actions being taken to avoid or minimize its effect after such occurrence, and shall take reasonable efforts to remove the condition constituting such force majeure. For purposes of this Agreement, "force majeure" shall include conditions beyond the control of the parties, including an act of God, acts of terrorism, voluntary or involuntary compliance with any regulation, law or order of any government, war, acts of war (whether war be declared or not), labor strike or lock-out, civil commotion, epidemic, failure or default of public utilities or common carriers, destruction of production facilities or materials by fire, earthquake, storm or like catastrophe. The payment of invoices due and owing hereunder shall in no event be delayed by the payer because of a force majeure affecting the payer. Addltional Terms or Modification: All prior understandings and agreements between the parties are merged into this Agreement, and this Agreement may not be modified orally or in any manner other than by an Agreement in writing signed by both parties. In the event that any provisions of this Agreement shall be held to be invalid or unenforceable, the remaining provisions shall be valid and binding on the parties. Assignment: Neither party to this Agreement shall transfer or assign any rights or duties under or interest in this Agreement without the prior written consent of the other party. Subcontracting normally contemplated by the ENGINEER shall not be considered an assignment for purposes of this Agreement. Waiver: A party's waiver of, or the failure or delay in enforcing any provision of this Agreement shall not constitute a waiver of the provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. Attorney's Fees: In the event of any action or proceeding brought by either party against the other under this Agreement, the prevailing party shall be entitled to recover from the other all costs and expenses including without limitation the reasonable fees of its attorneys in such action or proceeding, including costs of appeal, if any, in such amount as the Court may adjudge reasonable. Fiduciary Duty: Nothing in this Agreement is intended to create, nor shall it be construed to create, a fiduciary duty owed to either party to the other party. EEi makes no warranty, express or implied, as to its professional services rendered. Headings: The headings used in this Agreement are inserted only as a matter of convenience only, and in no way define, limit, enlarge, modify, explain or define the text thereof nor affect the construction or interpretation of this Agreement. PAGE 2·•