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HomeMy WebLinkAboutProfessional Service Agreement with HDR Engineering Inc. for Safety Manual SHORT FORM AGREEMENT BETWEEN OWNER AND HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES THIS AGREEMENT is made as of this 16th day of June, 2003, between the City of Meridian ("OWNER") a municipal corporation through its Public Works Department, with principal offices at 660 E Water Tower Lane, Suite 200. Meridian, Idaho 83642- 2300, and HDR ENGINEERING, INC., ("ENGINEER") a Nebraska corporation, with offices at 418 South 9th Street, Suite 301, Boise, Idaho 83702, for services in connection with the project known as Facilities Safety Assessment and Safety Manual Development ("Project"); WHEREAS, OWNER desires to engage ENGINEER to provide professional engineering, consulting and related services ("Services") in connection with the Project; and WHEREAS, ENGINEER desires to render these Services as described in SECTION I, Scope of Services. NOW, THEREFORE, OWNER and ENGINEER in consideration of the mutual covenants contained herein, agree as follows: SECTION I. SCOPE OF SERVICES ENGINEER will provide Services for the Project, which consist of the Scope of Services as outlined on the attached Exhibit A. SECTION II. TERMS AND CONDITIONS OF ENGINEERING SERVICES The "HDR Engineering, Inc. Terms and Conditions for Professional Services," which are attached hereto in Exhibit 8, are incorporated into this Agreement by this reference as if fully set forth herein, SECTION III. RESPONSIBILITIES OF OWNER The OWNER shall provide the information set forth in paragraph 6 of the attached "HDR Engineering, Inc, Terms and Conditions for Professional Services." SECTION IV. COMPENSATION Compensation for ENGINEER'S services under this Agreement shall be on the basis of lump sum. The amount of the lump sum is $64,518.00. Agfeement fof Professional Services ].]999 Lump Sum shall mean a fixed amount which shall be the total compensation agreed upon in advance for Scope of Services. SECTION V. PERIOD OF SERVICE Upon receipt of written authorization to proceed, ENGINEER shall perform the services described within the time periods stated in Exhibit A. Unless otherwise stated in this Agreement, the rates of compensation for ENGINEER'S services have been agreed to in anticipation of the orderly and continuous progress of the project through completion. If any specified dates for the completion of ENGINEER'S services are exceeded through no fault of the ENGINEER, the time for performance of those services shall be automatically extended for a period which may be reasonably required for their completion and all rates, measures and amounts of ENGINEER'S compensation shall be equitably adjusted. SECTION VI. RESPONSIBILITIES OF THE OWNER Owner shall provide documents for review by HDR as detailed in Exhibit A, Scope of Work. Agreement for Professional Sefvices 2 1-1999 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. Cc /Jrf~~'" .J...I Agreement fOf Professional Services C:1v "OWNER" BY: NAME: TITLE: A TIEST: BY: NAME: TITLE: 0 ¡:. I'-t..,.. ,..1; -- ~.~ Robert D. Corrie Mayor City Clerk HDR ENGINEERING, INC. "ENGINEER" BY: NAME: TITLE: ADDRESS: '1?-'I/o3 ~ Vice President 418 South 9th Street, Suite 301, Boise, Idaho 83702 1-1999 EXHIBIT A SCOPE OF SERVICES For Facilities Assessment & Safety Manual Development Project For THE CITY OF MERIDIAN 1.0 BACKGROUND The Public Works Department has a need to develop a Departmental Safety Manual for their facilities which includes wells, a wastewater treatment plant, and construction projects. A facilities assessment of existing facilities is the first step in achieving the development of a safety manual. The City has requested that HDR assist the City in developing this safety manual. 2.0 SCOPE OF SERVICES Task 1: Water Department Facilities Assessment The purpose of this task is to visit specific facilities to assess general applicability of Occupational Safety and Health Administration (OSHA) regulations and Best Management Practices (BMPs) that are recommended by OSHA or other nationai consensus standards. The purpose in identifying observed conditions associated with Water Department facilities and operations is to aid in the development of the Safety Program, and it is not intended that all conditions will be identified. Review of items regulated by agencies such as the United States Environmental Protection Agency, American Disabilities Act, and local building codes other than the National Electric Code are beyond the scope of the assessment. Older electrical installations will be reviewed for National Electric Code (NEC) violations. Water Division facilities to be included in the assessment will consist of 16 well houses, 2 water storage tanks, meter vaults, valve vauits, and a water tower. Since numerous similar meter vaults and valve vaults are located throughout the City, it is anticipated that 5 meter vaults and 5 valve vaults will be assessed. It is anticipated that four Water Division employees will be interviewed, and that the interviews will be conducted during the facility visits. Brad Kruger, HDR's safety professional, will fiy in from Omaha and spend three days reviewing Water Division facilities and conducting interviews, and wili be assisted part-time by Dan Ayers of HDR and Clay Bingham of Taylor Engineering. Clay Bingham will provide the NEC review of Water Division facilities of older installations such as older well pump stations. Task 2: Wastewater Department Facilities Assessment The purpose of this task is to visit specific facilities to assess general applicability of OSHA regulations and BMPs that are recommended by OSHA or other national consensus standards. The purpose in identifying observed conditions associated with Wastewater Department facilities and operations is to aid in the development of the Safety Program, and it is not intended that all violative conditions will be identified. Review of items regulated by agencies such as the Un~ed States Environmental Protection Agency, American Disabilities Act, and local building codes other than the National Electric Code are beyond the scope of the assessment. Older electricai installations and hazardous areas will be reviewed for NEC violations. City of Meridian HDR Engineering, Inc. .1. Facilities Assessment and Safety Manual Consulting Services Scope of Services 6/16/2003 Wastewater Division facilities to be included in the assessment will consist of the Wastewater Treatment Plant (WWTP), the collection system, and lift stations. The WWTP facilities to be reviewed include the laboratory, maintenance facility, influent screens, aeration basins, clarifiers, sludge digestion facilities, centrifuge dewatering facilities, sludge drying beds, the sand filters, UV disinfection facilities, and sludge land application facilities. A minimum of ten lift stations, including two primary types of lift stations used by the City, will be assessed. It is anticipated that one operator from each area, including the sludge farm, will be interviewed during the WWTP facility assessment. Brad Kruger, HDR's safety professional, will fly in from Omaha and spend five days reviewing Wastewater Division facilities, and will be assisted part-time by Dan Ayers of HDR and Clay Bingham of Taylor Engineering. Clay Bingham will provide the NEC review of Wastewater Division facilities of older installations or hazardous areas, Task 3: Construction Site Inspector Assessment Water and Engineering construction inspection employees performing activities while working at contractor controlled construction sites will also be included in the safety assessment. The assessment will not include any contractor or subcontractor activities. It is anticipated that site visits will be conducted at one Water Division construction site and one Engineering Division site. Interviews with Water Division and Wastewater Division construction inspection employees will be conducted at the time of the site visits. Task 4: Assessment Report Development The results of the health and safety assessment will be analyzed to identify subject areas that should be addressed in the Safety program. The results of the assessment will be included in a draft Health and Safety Assessment Summary Report, and five draft copies will be submitted. Upon receipt of the City's comments, the Health and Safety Assessment Summary Report will be finalized; ten final copies will be submitted. This report will give the City a baseline assessment on which to build the safety program. Task 5a: Written Program Development - Policies Based on results of the assessment, and consultations with Department personnel, HDR will develop a Health and Safety Program Manual (Manual), which includes written procedures that address employee health and safety requirements per OSHA parts 1910, 1926 and applicable and appropriate ANSI guidance. The manual will be organized in two parts, it is anticipated that the first part shall include: Policy Statement Health and Safety Organization Personnel Responsibilities Employee Training Health and Safety Equipment Accident Notification & Investigation Substance AbusePolicy Safety Program Enforcement City of Meridian HDR Engineering, Inc. .2- 6/16/2003 Faeiiities Assessment and Safety Manuai Consulting Services Scope of Services HDR will need to receive detailed information from the City in order to complete Part 1 of the Manual. One significant piece of information is what type of Heaith and Safety Management Structure the City anticipates utilizing to implement the Health and Safety Program. HDR anticipates developing a list of required information and discussing various options during the Kick-Off meeting. Task Sb: Written Program Development - Procedures (Optional task, not included in this Scope of Services) The second part shall include Health and Safety Procedures, each addressing a specific hazardous task or situation. A full list of Procedures will be finalized during the Health and Safety Assessment; however, the following Procedures are currently anticipated: Permit Required Confined Space Entry Ladder Safety Slip, Trip, and Fall Protection Electricai Safety Excavation Safety Hazard Communication LockouV Tagout Bloodborne Pathogens Traffic Safety Personal Protective Equipment Emergency Action Plan Noise (Hearing Conservation) Portable Fire Extinguishers Heat Stress Coid Stress First Aidl CPR Defensive Driving Violence in the Workplace Biological Hazards Medical Monitoring Powered Piatforms, Manlifts, and Vehicle Mounted Work Platforms City of Meridian HDR Engineering, Inc. .3- 6/16/2003 Facilities Assessment and Safety Manual Consulting Services Scope of Services Chemical Hygiene Plan for Laboratories Machinery and Machine Guarding Welding, Cutting, and Brazing Gantry Cranes Powered Industrial Trucks Motor Vehicles and Material Handling Equipment A draft list of procedures shall be submitted to the Department for review and comment prior to initiating Procedure deveiopment. However, in order to facilitate development of a Safety Manual, Procedure development addressing known or obvious specific hazardous tasks or situations wiil be initiated prior to finalizing the list of procedures. Development of Part 1 of the Safety Manual will occur throughout the project. HDR anticipates meeting with key personnel from each Division, during the Kick.Off Meeting, to receive input on the format and content of the Procedures. The recommendations from this meeting will be incorporated into the Procedures as long as OSHA or BMP compliance is maintained. In order to further facilitate the development of the Manual, a copy of each draft SectionlProcedure will be submitted bye-mail to the Department for review and comment upon completion, rather than waiting until all draft Procedures have been compieted. A draft Safety Program Manual, addressing the initial comments will be prepared and submitted, for final Department review and comment. Upon receipt of the finai comments, the comments will be incorporated and 10 copies of the final Safety Manual, along with an electronic copy on one or more CDs will be delivered to the Department. The electronic copy will be written in Microsoft Word (latest version). Task 6: Project Management The purpose of this task is to manage and to coordinate project technical resources to a level of service and responsiveness consistent with the project scheduie and budget. HDR will develop and update project scheduie, develop and update a Project Management Plan, develop and update budgetary controis, provide monthiy invoicing and progress reports, manage subconsuitant agreements, coordinate with the project team on project management issues, and identify staffing requirements. HDR's Project Manager will aiso assist the City in coordinating required meetings. These are anticipated to include an initial Kick-Off Meeting and monthiy progress meetings. HDR's Project Manager and Safety Professional will attend the Kick-Off Meeting, while HDR's Project Manager will attend the monthly progress meeting. If additional staff is required during the monthly progress meeting, they will be available by teleconference. Task 7: Quality Assurance/Quality Control HDR will develop a Quality Assurance/Quality Control pian as part of the Project Management Plan prior to commencing work. HDR's Jim Woolcott wiii be assigned the OAlOC task lead to ensure that all deliverables are reviewed and comments incorporated prior to distribution to the City. OAlQC Task Leader will conduct reviews of all project deliverables, or assign senior engineers to conduct reviews of specialized support discipline work. City of Meridian HDR Engineering, inc. .4. Facilities Assessment and Safety Manual Consulting Services Scope of Services 6/16/2003 3.0 DELIVERABLES HDR will provide draft and final copies of the Assessment Report, and draft and final copies of the Safety Manual. 4.0 SCHEDULE Notice to Proceed: June 16, 2003 Kick-Off Meeting: June 23, 2003 Water Department Facilities Site Visits: June 24 - 26, 2003 Water/Wastewater Construction Site Visits: June 27,2003 Wastewater Department Facilities Site Visits: July7-11,2003 Draft Facilities Assessment Report Completion: August 15, 2003 Receive City Comments on Draft Assessment Report: August 29, 2003 September 12, 2003 Final Facilities Assessment Report Completion: Draft Safety Manual- Policies: September 26, 2003 October 17, 2003 Receive City Comments on Draft Safety Manual - Policies: Final Safety Manual- Policies: October 31, 2003 Draft Safety Manual- Procedures (Optional): December 1, 2003 Receive City Comments on Draft Safety Manual (Optional): December 19, 2003 Procedures Safety Manual Completion (Future): January 16, 2004. 5.0 PAYMENTS TO HDR Payment for Basic Services: For the scope of services described in Section 2, Scope of Services, total compensation will be a lump sum of $91,262.00, and as detailed in the following table: Task Amount 01.Water Deaartment Assessment $7015 02.Wastewater Department Assessment 11,463 03.Construction Assessment 1,749 04.Assessment Reaort 27,529 05a-Safety Program Development - Policies 9,002 City of Meridian HDR Engineering, Inc. -5- Facililies Assessment and Safety Manual Consulting Services Scope of Services 6/16/2003 06-Proiect ManaQement - Assessment/Policies 3,140 07-QAlQC - AssessmentlPolicies 4,620 Total $64,518 05b-Safety Manual - Procedures (Optional). Includes costs for Project management and Quality $26,744 Control Payment for Additional Services: Compensation for additional services such as the optional safety Procedure development and follow-on training will be on the basis of a Lump Sum or Per Diem as agreed upon before the initiation of any such services. HDR will not perform any Additional Services activities without written authorization from the Public Works Department. City of Meridian HDR Engineering, Inc. -6- 6/16/2003 Facilities Assessment and Safety Manual Consulting Services Scope of Services EXHIBIT B TERMS AND CONDITION HDR Engineering, Inc. Terms and Conditions for Consulting Services 1. STANDARD OF PERFORMANCE The standard of care for all consulting and related services perlormed orfumished by ENGiNEER and its employees under this Agreement wlll be the care and skill ordinarily used by members of ENGiNEER's profession practicing under the same or simiiar circumstances at the same time and in the same locality. CONSULTANT makes no waITanties, express or implied, under this Agreement or otherwise. in connection with CONSULTANT's services. 2. INSURANCE CONSULTANT agrees to procure and maintain. at its expense, Workers' Compensation insurance as required by statute; Empioyer's Liability of $250,000; Automobile Liability insurance of $1,000,000 combined single limil for bodily injury and property damage covering all vehicies, including hired vehicies, owned and non-owned vehicles; Commercial Generai Liability insurance of $1.000,000 combined single iimil for personal injury and property damage; and Professionai Liabiiity insurance of $1.000.000 per ciaim for protection against ciaims arising out of the perlormance of services under this Agreement caused by negligent acts, errors, or omissions for which CONSULTANT is legally liabie. Upon request, OWNER shall be made an additional insured on Commercial General and Automobile Liabiiity insurance policies and certificates of insurance will be fumished to the OWNER. CONSULTANT agrees to indemnify OWNER for the claims covered by CONSULTANT's insurance. 3. OPINIONS OF PROBABLE COST (COST ESTIMATES) Any opinions of probabie project cost or probable construction cost provided by CONSULTANT are made on the basis of information available to CONSULTANT and on the basis of CONSULTANT's experience and quaiifications. and represents its judgment as an experienced and qualified professional. However. since CONSULTANT has no control over the cost of labor, materials, equipment or services fumished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market cond~ions, CONSULTANT does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probabie cost CONSULTANT prepares. 4. CONSTRUCTION PROCEDURES CONSULTANTs observation or monitoring portions of the work perlormed under construction contracts shall not relieve the contractor from its responsibility for pertorming work in accordance with appiicable contract documents. CONSULTANT shall not controi or have charge of. and shall not be responsible for, construction means, methods. techniques, sequences, procedures of construction, health or safety programs or precautions connected with the work and shall not manage, supervise, control or have charge of construction. CONSULTANT shall not be responsibie for the acts or omissions of the contractor or other parties on the project. CONSULTANT shall be entitled to review all construction contract documents and to require that no provisions extend the duties or liabilities of CONSULTANT beyond those set forth in this Agreement. OWNER agrees to inciude CONSULTANT as an indemnified party in OWNER's construction contracts for the work, which shall protect CONSULTANTto the same degree as OWNER. Further, OWNER agrees that CONSULTANT shall be iisted as an additional insured under the construction contractor's liability insurance policies. 5. CONTROLLING LAW This Agreement is to be governed by the iaw of the state where CONSULTANT's services are perlormed. 6. SERVICES ANP INFORMATION OWNER will provide all criteria and information pertaining to OWNER's requirements for the project, including design objectives and constraints, space. capacity and perlormance requirements. flexibility and expandability, and any budgetary limnations. OWNER will aiso provide copies of any OWNER.fumished Standard Oetails. Standard Specifications, or Standard Bidding Documents which are to be incorporated into the project. OWNER will furnish the services of soils/geotechnicai engineer or other consultants that include reports and appropriate professional recommendations when such services are deemed necessary by CONSULTANT. The OWNER agrees to bear full responsibility for the technical accuracy and content of OWNER-furnished documents and services. in perlorming consultant and reiated services hereunder. it is understood by OWNER that CONSULTANT is not engaged in rendering any type of iegai. insurance or accounting services. opinions or advice. Further, it is the OWNER's sole responsibiiity to obtain the advice of an attorney. insurance counselor or accountant to protect the OWNER's legal and financiai interests. To that end. the OWNER agrees that OWNER or the OWNER's representative wiil examine all studies. reports, sketches, drawings. specifications. proposals and other documents. opinions or advice prepared or provided by CONSULTANT, and will obtain the advice of an attomey, insurance counselor or other consuitant as the OWNER deems necessary to protect the OWNER's interests before OWNER takes action or forebears to take action based upon or reiying upon the services provided by CONSULTANT. 7. SUCCESSORS AND ASSIGNS OWNER and CONSULTANT. respectively. bind themselves, their partners, successors, assigns. and legai representatives to the covenants of this Agreement. Neither OWNER nor CONSULTANT wiil assign, sublet, or transfer any interest in this Agreement or claims arising therefrom without the written consent of the other. B. RE-USE OF DOCUMENTS All documents, inciuding all reports, drawings. specifications, computer software or other items prepared or fumished by CONSULTANT pursuant to this Agreement, are instruments of service.wnh respect to the project. CONSULTANT retains ownership of all such documents. OWNER may retain copies of the documents lor its information and reference in connection with the project; however, none of the documents are intended or represented to be suitabie for reuse by OWNER or others on extensions of the project or on any other project. Any reuse wnhout written verification or adaptation by CONSULTANT for the specific purpose intended wiii be at OWNER's sole risk and without liabiiity or legai exposure to CONSULTANT, and OWNER wiil defend. indemnify and hoid harmless CONSULTANT from all ciaims. damages. iosses and expenses. including attorney's fees, arising or resulting therefrom. Any such verification or adaptation wiil entitle CONSULTANT to further compensation at rates to be agreed upon by OWNER and CONSULTANT. 9. TERMINATION OF AGREEMENT OWNER or CONSULTANT may terminate the Agreement, in whole or in part, by giving seven (7) days written notice, if the other party substantially fails to fuifili its obligations under the Agreement through no fault of the terminating party. Where the method of payment is 'Iump sum." or cost reimbursement, the final invoice will include ail service~ and expenses associated with the project up to the effective date of termination. An equitable adjustment shall also be made to provide for termination settlement costs CONSULTANT incurs as a result of commitments that had become firm before termination, and for a reasonabie profit for services perlormed. 10. SEVERABILITY If any provision of this agreement is held invaiid or unenforceabie. the remaining provisions shail be valid and binding upon the parties. One or more waivers by either party of any provision, term or condition shail not be construed by the other party as a waiver of any subaequent breach of the same provision. term or condition. (11/2001) 11. INVOICES CONSUL TANTwili submit monthly invoices for services rendered and OWNER wiii make prompt payments in response to CONSULTANrs invoices. CONSULTANT will retain receipts for reimbursable expenses in general accordance with Intemal Revenue Service rules pertaining to Ihe support of expenditures for income tax purposes. Receipts wiil be available for inspection by OWNER's auditors upon request. If OWNER disputes any ftems in CONSULTANrs invoice for any reasOn, Including the lack of supporting documentation, OWNER may temporarily delete the disputed item and pay the remaining amount of the invoice. OWNER will promptly notify CONSULTANT of the dispute and request clarification and/or correction. After any dispute has been settled, CONSULTANT will include the disputed Item on a subsequent. regularly scheduled Invoice, or on a special inVOice for the disputed ftem only. OWNER recognizes that late payment of invoices resuits in exlra expenses for CONSULTANT. CONSULTANT retains the right to assess OWNER interest at the rate of one percent (1 %) per month. but not to exceed the maximum rate aiiowed by law. on invoices which are not paid within forty-five (45) days frem the date of the invoice. In the event undispuled portions of CONSULTANT's invoices are not paid when due, CONSULTANT also reserves the right. after seven (7) days prior written notice, to suspend the periormance of its services under this Agreement until all past due amounts have been paid in full. 12. CHANGES The parties agree that no change or modification to this Agreement, or any attachments hereto. shall have any force or effect unless the change is reduced to writing, dated. and made part of this Agreement. The execution of the change shall be authorized and signed in the same manner as this Agreement. Adjustments in the period of services and in compensation shall be in accordance with applicabie paragraphs and sections of this Agreement. Any proposed fees by CONSULTANT are estimates to perform the services required to complete the project as CONSULTANT understands it to be defined. For those projects Involving conceptual or process development services, activities often are not fully definable in the initial planning. In any event, as the project progresses, the facts developed may dictate a change In the services to be performed. which may alter the scope. CONSULTANT will inform OWNER of such situations so that changes in scope and adjustments to the time of perfonnence and compensation can be made as required. If such change, additional services, or suspension of services results in an increase or decrease in the cost of or time required for perfonnanoe of the services, an equitable adjustment shall be made, and the Agreement modified accordingly. 13. CONTROLLING AGREEMENT These Terms and Conditions shaii take precedence over any inconsistent or contradictory provisions contained in any proposal, contract, purchase order, requisition. notice-to-proceed, or like document. 14. EQUAl EMPLOYMENT AND NONDISCRIMINATION In connection with the services under this Agreement, CONSULTANT agrees to comply with the applicable provisions of federal and state Equal Employment Opportunity, and other employment, statutes and regulations. 15. HAZARDOUS MATERIALS OWNER represents to CONSULTANT that. to the best of its knowledge. no hazardous materials are present at the project site. However. in the event hazardous materials are known to be present. OWNER represents that to the best of its knowledge it has disclosed to CONSULTANT the existence of all such hazardous materials. including but not limited to asbestos. PCB's. petroleum. hazardous waste, or radioactive material located at or near the project site, including type. quantity and location of such hazardous materials. It is acknowledged by both parties that CONSULTANT's scope of services do not include services related in any way to hazardous materials. In the event CONSULTANT or any other party encounters undisclosed hazardous materials, Terms & Conditions for Consulting Services CONSULTANT shall have the obligation to notify OWNER and. to the exlent reqUIred by law or regulation, the appropriate govemmental officials, and CONSULTANT may, at its option and without liability for delay, consequential or any other damages to OWNER. suspend performance of services on that portion of the project affected by hazardous materials until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and. as appropnate, abate. remediate, or remove the hazardous materials; and (ii) warrants that the project site Is in full compliance with ail applicable laws and regulations. OWNER acknowledges that CONSULTANT is performing professional services for OWNER and that CONSULTANT is not and shaii not be required to become an "arranger." "operator." "generator," or 'hnsporter" of hazardous materials. as defined in the Comprehensive Environmentai Response. Compensation. and Liability Act of 1990 (CERCLA), which are or may be encountered at or nearthe project site in connection with CONSULTANT's services under this Agreement. If CONSULTANT's services hereunder cannot be performed because of the existence of hazardous materials, CONSULTANT shaii be entitled to terminate this Agreement for cause on 30 days written notice. To tI1e fullest exlent permitted by law, OWNER shall indemnify and hold harmless CONSULTANT. its officers. directors. partners, employees, and subconsultants from and against all costs, losses,and damages (including but not limited to all fees and charges of engineers, architects. attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused by, arising out of or resulting from hazardous materials, provided that (i) any such cost, loss, or damage is attributabie to bodiiy injury. sickness, disease. or death, or injury to or destruction of tangible property (other than completed Work), inciuding the loss of use resulting therefrom, and (ii) nothing in this paragraph shaii obligate OWNER to indemnify any individual or entity from and against the consequences of that individual's or entity's sole negligence or wil~ul misconduct. 16. EXECUTION This Agreement, including the exhibits and schedules made part hereof, constitute the entire Agreement between CONSULTANT and OWNER. supersedes and controls over all prior written or orai understandings. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by the parties. 17. LIMITATION OF LIABILITY CONSULTANT's and its employees' total liability to OWNER for any loss or damage, including but not limited to special and consequential damages arising out of or in connection with the performance of services or any other cause. Including CONSULT ANrs and its employees' professional negligent acts, errors, or omissions, shall not exceed tI1e greater of $50.000 or the total compensation received by CONSULTANT hereunder, except as otherwise provided under tI1is Agreement, and OWNER hereby releases and hoids harmless CONSULTANT and fts employees from any liability above such amount. lB. LITIGATION SUPPORT In tI1e event CONSULTANT is required to respond to a subpoena, govemment inquiry or other legal process related to the services in connection with a legal or dispute resolution proceeding to which CONSULTANT is nota party, OWNER shall reimburse CONSULTANT for reasonable costs in responding and compensate CONSULTANT at its tI1en standard rates for reasonable time incurred In gathering infonnation and documents and attending depositions, hearings. and trial. 19. INDEMNIFICATION OWNER expllcoly waives any right it has to immunity under applicable industrial insurance laws and agrees to indemnify, defend and hoid CONSULTANT, its employees, officers. and directors harmless from any and all liability, losses, costs. expenses and fees arising out of claims or law suits brought by OWNER's employees or any of its subconsultants' employees for bodily injuries or death sustained as a result of CONSULTANT's services performed hereunder, except to the exlent caused by the gross negligence or willful misconduct of CONSULTANT. (11/2001)