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HomeMy WebLinkAboutHDR Kittitas County Recycling Feasbility Study Contract 02242021Agreement for Professional Services 1 1/2020 SHORT FORM AGREEMENT BETWEEN OWNER AND HDR ENGINEERING, INC. FOR PROFESSIONAL SERVICES THIS AGREEMENT is made as of this ________ day of __________________, 20___, between Kittitas County (“OWNER”) a municipal corporation, with principal offices at 205 West 5th Street, Ellensburg, WA 98926, and HDR ENGINEERING, INC., (“ENGINEER” ) with principal office at 8404 Indian Hills Drive, Omaha, NE 68114 for services in connection with the project known as Secondary Recycling Market Feasbility Study (“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, which are attached hereto in Exhibit B, 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 Time and Materials. Time and Materials shall mean actual labor hours at the rates included in Exhibit A, to be paid as total compensation for each hour an employee works on the project, plus Reimbursable Expenses. Compensation terms are defined as follows: Reimbursable Expense shall mean the actual expenses incurred directly or indirectly in connection with the Project for transportation travel, subconsultants, subcontractors, technology charges, telephone, telex, shipping and express, and other incurred expense. Agreement for Professional Services 2 1/2020 SECTION V. PERIOD OF SERVICE Upon receipt of written authorization to proceed, ENGINEER shall perform the services within the time period(s) described 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. Agreement for Professional Services 3 1/2020 SECTION VI. SPECIAL PROVISIONS IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. “OWNER” BY: NAME: TITLE: ADDRESS: HDR ENGINEERING, INC. “ENGINEER” BY: NAME: Rob Berman TITLE: Washington Area Operations Manager ADDRESS: 929 108th Ave NE, Suite 1300 Bellevue, WA 98004 EXHIBIT A SCOPE OF SERVICES Background Kittitas County (County), in partnership with Central Washington University, Yakima County, and the Ellensburg Business Development Authority has been awarded a grant from the Washington State Department of Ecology (Ecology) Recycling Development Center. This grant will support a feasibility study of secondary recycling markets with an eye towards a regional, comprehensive action plan. The feasibility study will consider the County’s unique position geographically at the crossroads of two interstate freeways, a strong community desire to protect natural capital, and demonstrated ability to build and sustain effective public/private partnerships. Ellensburg, WA is a top ten micro-region for population growth and is the hub for progressive economic development. Recently the County joined neighboring Yakima County and banned the acceptance of glass materials from their recycling streams. This ban was brought about by the cost of the long haul to recycling facilities in the state. While this has been a challenge for the citizens, the County recognized that the situation also presented an opportunity to look at glass and other recyclable materials with an innovative eye for a sustainable, secondary market. The County has an opportunity to become known as the secondary recycling marketplace in central Washington due to its geographic location. The County has requested for HDR to conduct the secondary recycling market feasibility study and action plan. Provided below is a summary of the tasks required to develop the feasibility study and comprehensive action plan. Scope of Services Task 1: Project Management OBJECTIVE The purpose of this task is to monitor, control, and adjust scope, schedule, and budget; and to provide monthly status reporting, accounting, and invoicing for the project. HDR SERVICES • Schedule, manage, and allocate project resources based on schedule, budget, work plan, and activities. • Provide monthly, scheduled communication with the County Project Manager, including calls, emails, meetings, workshops, and other communication appropriate based on the activity. • Prepare monthly electronic progress reports and invoices. CLIENT RESPONSIBILITIES • Attend monthly check-in meetings. • Timely review and payment of monthly invoices and progress reports. KEY UNDERSTANDINGS • Invoices and progress reports will be submitted electronically on a monthly basis. • Progress reports will be no more than two (2) pages and will include: o Summary of the work completed during the previous month o Identification of project issues o Documentation of staff hours spent during current period • HDR’s Project Manager will be available for phone or email correspondence on project management issues or questions, but no in-person meetings are planned. DELIVERABLES • Up to four (4) monthly invoice and progress reports (electronic PDF). Task 2: Project Initiation and Scope Refinement OBJECTIVE The purpose of this task is to bring the HDR and County project teams together at the start of the project to confirm the goals, objectives, issues, and concerns related to the feasibility study. HDR SERVICES • Facilitate virtual project kick-off meeting with HDR and County teams. • Provide a written data request detailing data required to develop the feasibility study. • Review data provided by the County to be used in the development of the feasibility study. • Coordinate with the County on data clarifications and additional data needs. • Coordinate and facilitate a virtual kick-off meeting. CLIENT RESPONSIBILITIES • Provide requested data in a timely manner. • Provide additional data or clarifications to support the study analyses. • Have appropriate County staff attend and participate in the kick-off meeting. KEY UNDERSTANDINGS • Data will be provided by the County in electronic format. • The kick-off meeting will be 2 hours in length. • Up to three (3) HDR staff will virtually attend and participate in the kick-off meeting; no in- person meeting required. DELIVERABLES • Data request (electronic format - e.g., PDF, Excel, Word). • Kick-off meeting agenda and meeting handout (electronic format). Task 3: Stakeholder Engagement OBJECTIVE The purpose of this task is to facilitate stakeholder engagement to review goals and objectives relating to recycling markets, development of strategies, and potential opportunities available and solicit feedback on draft project documents. HDR SERVICES • One (1) HDR staff member will facilitate up to two (2) stakeholder engagement meetings or presentations either virtually or in person at venues coordinated by the County. • Hold internal meetings with County to discuss content and review materials for both stakeholder meetings. • Facilitate an initial kick-off meeting with stakeholders to review goals and objectives relating to recycling markets, development of strategies, and potential opportunities available; • Upon completion of the draft Feasibility Study and Preliminary Action Plan, facilitate a second meeting to review and solicit feedback on the draft documents. • Prepare stakeholder engagement meeting presentation materials. CLIENT RESPONSIBILITIES • Coordinate the dates and times of the stakeholder engagement meetings with HDR. • Review and comment on the HDR developed presentation materials. ASSUMPTIONS • HDR will provide the presentation materials to the County in electronic format (e.g., PPT, PDF). • If desired, additional public presentations beyond the two (2) proposed stakeholder engagement meetings can be provided on a time and material basis as agreed in writing between the County and HDR for an additional fee. • Budget includes in-person attendance for up to two (2) meetings by one HDR staff member, including travel. If County determines meetings are to be virtual, travel time will not be expended. • In person meetings will follow current County, HDR, state, and local protocols for COVID- 19 precautions. DELIVERABLES • Draft and final stakeholder engagement meetings and presentation materials in electronic format for up to two (2) meetings either virtually or in-person. Task 4: Research Recyclable End-Markets and Benchmarking Exercise OBJECTIVE The purpose of this task is to conduct a benchmarking exercise that includes up to five (5) like- sized jurisdictions, both local and regional, relating to recycling acceptance, handling, marketing, and end-use that establishes existing conditions. HDR SERVICES • Identify up to five (5) like sized, innovative, and successful recycling management practices or initiatives that may be replicated in Kittitas County relating to recycling acceptance, handling, marketing, and end-use of materials. • Conduct research on feasible uses and end-markets for recyclables collected with emphasis on innovation and sustainable opportunities that exist both locally and in the region. • Conduct additional research on existing recycling options and facilities available in the region that provide sustainable end-uses for materials. • Develop a draft and final technical memo summarizing existing conditions in the region, feasible end-use markets, and potential, sustainable technologies that could be duplicated in Kittitas County to establish long-term recyclable materials markets. • Conduct one (1) meeting to present preliminary results to the County to explore benefits and drawbacks of potential sustainable technologies that could be duplicated. CLIENT RESPONSIBILITIES • Identify attendees and participate in a preliminary results workshop and provide feedback. • Review and provide one set of consolidated comments on the draft technical memo. ASSUMPTIONS • Up to two (2) HDR staff will attend the workshop either virtually or in-person. If County determines meeting is to be virtual, travel time will not be expended. • In person meetings will follow current County, HDR, state, and local protocols for COVID- 19 precautions. • Workshop will be held at County offices. DELIVERABLES • Draft and final workshop agenda and presentation materials (Word, PDF, and PowerPoint format, as appropriate, electronic only). • Draft and final workshop notes (Word format, electronic only). • Draft and final technical memo (Word format, electronic only). Task 5: Secondary Recycling Market Feasibility Study and Preliminary Action Plan OBJECTIVE As identified in the Task 4 technical memo, up to five (5) identified successful recycling management practices and technologies will be selected as potential candidates to create a foundation for future recycling management options and infrastructure needed in the region. The objective of this task is to further evaluate these options; determine whether they will meet the goals and objectives; and determine whether they may be economically viable, environmentally sound, socially acceptable, and achievable in the region. A preliminary action plan will be presented through a planning matrix for implementation. HDR SERVICES • Develop up to five (5) planning-level opinions of probable construction costs for the selected recycling management practices and technologies. • Develop up to five (5) planning-level estimates of probable annual operating costs for the selected recycling management practices and technologies. • Develop the draft secondary recycling market feasibility study and preliminary action plan. • Conduct one (1) meeting to present the draft feasibility study and preliminary action plan with the County. • Develop the final feasibility study and preliminary action plan. CLIENT RESPONSIBILITIES • Identify attendees and participate in a preliminary results meeting and provide feedback. • Review and provide one set of consolidated comments on the draft feasibility study and preliminary action plan. ASSUMPTIONS • Estimated costs will be developed on the HDR’s team knowledge of previous facility designs, current industry standards and operating information that is available. • Up to two (2) HDR staff will attend the review meeting either virtually or in-person. If County determines meeting is to be virtual, travel time will not be expended. • In person meetings will follow current County, HDR, state, and local protocols for COVID- 19 precautions. • Workshop will be held at County Offices. DELIVERABLES • Draft and final meeting agenda and presentation materials (Word, PDF, and PowerPoint format, as appropriate, electronic only). • Draft and final meeting notes (Word format, electronic only). • Draft and final feasibility study and preliminary action plan (Word format, electronic only). Schedule • County issues notice to proceed (NTP) – Estimated March 10, 2021 • HDR issues request for information (RFI) – Within 2 days of NTP • County provides RFI documents – Within 1 week of NTP • Initial kick-off meeting – Within 1 week of NTP • Initial stakeholder engagement meeting – 2 weeks after initial kick-off meeting • HDR issues draft technical benchmarking memo – 1 week after stakeholder engagement • Conduct County workshop to review technical memo – 1 week after draft technical benchmarking memo issued • HDR issues final technical benchmarking memo – 1 week after workshop • HDR issues draft secondary recycling market feasibility study and preliminary action plan – 3 weeks after final benchmarking memo • Conduct County workshop to review feasibility study and preliminary action plan – 2 weeks after draft feasibility study • Conduct stakeholder engagement meeting to review feasibility study and preliminary action plan – 3 weeks after workshop • HDR issues final feasibility study and preliminary action plan – 2 weeks after stakeholder engagement Estimated Fees and Disbursements Compensation for proposed services will be billed on a Time and Materials basis. The total fee for these services is not to exceed $34,500.00, unless mutually agreed upon by HDR and the Client. Table 1. Schedule of Fees Task Task Name Amount 1 Project Management $1,700.00 2 Project Initiation and Scope Refinement $2,200.00 3 Stakeholder Engagement $6,600.00 4 Research Recyclable End-Markets and Benchmarking Exercise $16,700.00 5 Secondary Recycling Market Feasibility Study and Preliminary Action Plan $7,300.00 TOTAL $34,500.00 Table 2. Schedule of Billing Rates Terms and Conditions These services are proposed to be completed under HDR’s standard Professional Services Agreement and Terms and Conditions. This proposal is valid for 30 working days from the date of submission. Thereafter, it may be subject to change. Rate Category Rate Project Manager $190 Senior Solid Waste Planner $225 Senior Solid Waste Engineer $225 Solid Waste Planner $150 Solid Waste Engineer $175 Strategic Communications Specialist $135 Technical Editor $120 Project Accountant $120 EXHIBIT B TERMS AND CONDITIONS HDR Engineering, Inc. Terms and Conditions for Consulting Services 1. STANDARD OF PERFORMANCE The standard of care for all professional engineering, consulting and related services performed or furnished by CONSULTANT and its employees under this Agreement will be the care and skill ordinarily used by members of CONSULTANT’s profession practicing under the same or similar circumstances at the same time and in the same locality. CONSULTANT makes no warranties, express or implied, under this Agreement or otherwise, in connection with CONSULTANT’s services. 2. INSURANCE/INDEMNITY CONSULTANT agrees to procure and maintain, at its expense, Workers' Compensation insurance as required by statute; Employer's Liability of $250,000; Automobile Liability insurance of $1,000,000 combined single limit for bodily injury and property damage covering all vehicles, including hired vehicles, owned and non-owned vehicles; Commercial General Liability insurance of $1,000,000 combined single limit for personal injury and property damage; and Professional Liability insurance of $1,000,000 per claim for protection against claims arising out of the performance of services under this Agreement caused by negligent acts, errors, or omissions for which CONSULTANT is legally liable. OWNER shall be made an additional insured on Commercial General and Automobile Liability insurance policies and certificates of insurance will be furnished to the OWNER. CONSULTANT agrees to indemnify OWNER for third party personal injury and property damage claims to the extent caused by CONSULTANT's negligent acts, errors or omissions. However, neither Party to this Agreement shall be liable to the other Party for any special, incidental, indirect, or consequential damages (including but not limited to loss of use or opportunity; loss of good will; cost of substitute facilities, goods, or services; cost of capital; and/or fines or penalties), loss of profits or revenue arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or causes, including but not limited to any such damages caused by the negligence, errors or omissions, strict liability or breach of contract. 3. ESTIMATES Any estimates of project cost, value or savings provided by CONSULTANT are intended to allow a comparative evaluation between alternatives and do not constitute a detailed evaluation or prediction of actual project costs, value or savings. Any such estimates are made on the basis of information available to CONSULTANT and on the basis of CONSULTANT's experience and qualifications, and represents its judgment as an experienced and qualified professional engineer. However, since CONSULTANT has no control over the impact of various factors that impact the actual project cost, value or savings, CONSULTANT does not guarantee that the actual project cost, value or savings will not vary from CONSULTANT’s estimates. 4. CONTROLLING LAW This Agreement is to be governed by the law of the state where CONSULTANT's services are performed. 5. SUCCESSORS, ASSIGNS AND BENEFICIARIES OWNER and CONSULTANT, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the covenants of this Agreement. Neither OWNER nor CONSULTANT will assign, sublet, or transfer any interest in this Agreement or claims arising therefrom without the written consent of the other. No third party beneficiaries are intended under this Agreement. 6. SERVICES AND INFORMATION OWNER will provide all criteria and information pertaining to OWNER's requirements for the project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations. OWNER will also provide copies of any OWNER-furnished Standard Details, Standard Specifications, or Standard Bidding Documents which are to be incorporated into the project. OWNER will furnish the services of soils/geotechnical engineers 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 performing professional engineering, consulting and related services hereunder, it is understood by OWNER that CONSULTANT is not engaged in rendering any type of legal, insurance or accounting services, opinions or advice. Further, it is the OWNER’s sole responsibility to obtain the advice of an attorney, insurance counselor or accountant to protect the OWNER’s legal and financial interests. To that end, the OWNER agrees that OWNER or the OWNER’s representative will 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 attorney, insurance counselor or other consultant as the OWNER deems necessary to protect the OWNER’s interests before OWNER takes action or forebears to take action based upon or relying upon the services provided by CONSULTANT. 7. RE-USE OF DOCUMENTS All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by CONSULTANT pursuant to this Agreement, are instruments of service with respect to the project. CONSULTANT retains ownership of all such documents. OWNER may retain copies of the documents for its information and reference in connection with the project; however, none of the documents are intended or represented to be suitable for reuse by OWNER or others on extensions of the project or on any other project. Any reuse without written verification or adaptation by CONSULTANT for the specific purpose intended will be at OWNER's sole risk and without liability or legal exposure to CONSULTANT, and OWNER will defend, indemnify and hold harmless CONSULTANT from all claims, damages, losses and expenses, including attorney's fees, arising or resulting therefrom. Any such verification or adaptation will entitle CONSULTANT to further compensation at rates to be agreed upon by OWNER and CONSULTANT. 8. TERMINATION OF AGREEMENT OWNER or CONSULTANT may terminate the Agreement, in whole or in part, by giving seven (7) days written notice to the other party. Where the method of payment is "lump sum," or cost reimbursement, the final invoice will include all services 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 reasonable profit for services performed. 9. SEVERABILITY If any provision of this agreement is held invalid or unenforceable, the remaining provisions shall be valid and binding upon the parties. One or more waivers by either party of any provision, term or condition shall not be construed by the other party as a waiver of any subsequent breach of the same provision, term or condition. 10. CONTROLLING AGREEMENT These Terms and Conditions shall take precedence over any inconsistent or contradictory provisions contained in any proposal, contract, purchase order, requisition, notice-to-proceed, or like document. 11. INVOICES CONSULTANT will submit monthly invoices for services rendered and OWNER will make payments to CONSULTANT within thirty (30) days of OWNER's receipt of CONSULTANT's invoice. CONSULTANT will retain receipts for reimbursable expenses in general accordance with Internal Revenue Service rules pertaining to the support of expenditures for income tax purposes. Receipts will be available for inspection by OWNER's auditors upon request. If OWNER disputes any items in CONSULTANT's 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 item only. OWNER recognizes that late payment of invoices results in extra 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 allowed by law, on invoices which are not paid within thirty (30) days from the date OWNER receives CONSULTANT’s invoice. In the event undisputed 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 performance 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 applicable 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 performance 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 performance of the services, an equitable adjustment shall be made, and the Agreement modified accordingly. 13. 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 for individuals based on color, religion, sex, or national origin, or disabled veteran, recently separated veteran, other protected veteran and armed forces service medal veteran status, disabilities under provisions of executive order 11246, and other employment, statutes and regulations, as stated in Title 41 Part 60 of the Code of Federal Regulations § 60-1.4 (a-f), § 60-300.5 (a-e), § 60-741 (a-e). 14. 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 oral understandings. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by the parties. 15. ALLOCATION OF RISK OWNER AND CONSULTANT HAVE EVALUATED THE RISKS AND REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING CONSULTANT’S FEE RELATIVE TO THE RISKS ASSUMED, AND AGREE TO ALLOCATE CERTAIN OF THE RISKS, SO, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF CONSULTANT (AND ITS RELATED CORPORATIONS, SUBCONSULTANTS AND EMPLOYEES) TO OWNER AND THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE LESSER OF $1,000,000 OR ITS FEE, FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF CONSULTANT’S SERVICES OR THIS AGREEMENT REGARDLESS OF CAUSE(S) OR THE THEORY OF LIABILITY, INCLUDING NEGLIGENCE, INDEMNITY, OR OTHER RECOVERY. 16. LITIGATION SUPPORT In the event CONSULTANT is required to respond to a subpoena, government inquiry or other legal process related to the services in connection with a legal or dispute resolution proceeding to which CONSULTANT is not a party, OWNER shall reimburse CONSULTANT for reasonable costs in responding and compensate CONSULTANT at its then standard rates for reasonable time incurred in gathering information and documents and attending depositions, hearings, and trial. 17. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than the OWNER and CONSULTANT and has no third-party beneficiaries. All work product will be prepared for the sole and exclusive use of the OWNER and is not for the benefit of any third party and may not be distributed to, disclosed in any form to, used by, or relied upon by, any third party without the prior written consent of CONSULTANT, which consent may be withheld in its sole discretion. OWNER agrees to indemnify CONSULTANT and its officers, employees, subcontractors, and affiliated corporations from all claims, damages, losses, and costs, including but not limited to litigation expenses and attorney's fees arising out of or related to the unauthorized disclosure, change, or alteration of such work product. Use of any report or any information contained therein by any party other than OWNER shall be at the sole risk of such party and shall constitute a release and agreement by such party to defend and indemnify CONSULTANT and its affiliates, officers, employees and subcontractors from and against any liability for direct, indirect, incidental, consequential or special loss or damage or other liability of any nature arising from said party’s use of such report or reliance upon any of its content. To the maximum extent permitted by law, such release from and indemnification against liability shall apply in contract, tort (including negligence), strict liability, or any other theory of liability. 18. DISCLAIMER In preparing reports, CONSULTANT relies, in whole or in part, on data and information provided by the OWNER and third parties, which information has not been independently verified by CONSULTANT and which CONSULTANT has assumed to be accurate, complete, reliable, and current. Therefore, while CONSULTANT has utilized the customary professional standard of care in preparing this report, CONSULTANT does not warrant or guarantee the conclusions set forth in reports which are dependent or based upon data, information or statements supplied by third parties or the OWNER. 19 OPERATIONAL TECHNOLOGY SYSTEMS OWNER agrees that the effectiveness of operational technology systems (“OT Systems”) and features designed, recommended or assessed by CONSULTANT are dependent upon OWNER’s continued operation and maintenance of the OT Systems in accordance with all standards, best practices, laws, and regulations that govern the operation and maintenance of the OT Systems. OWNER shall be solely responsible for operating and maintaining the OT System in accordance with applicable industry standards (i.e. ISA, NIST, etc.) and best practices, which generally include but are not limited to, cyber security policies and procedures, documentation and training requirements, continuous monitoring of assets for tampering and intrusion, periodic evaluation for asset vulnerabilities, implementation and update of appropriate technical, physical, and operational standards, and offline testing of all software/firmware patches/updates prior to placing updates into production. Additionally, OWNER recognizes and agrees that OT Systems are subject to internal and external breach, compromise, and similar incidents. Security features designed, recommended or assessed by CONSULTANT are intended to reduce the likelihood that OT Systems will be compromised by such incidents. However, CONSULTANT does not guarantee that OWNER’s OT Systems are impenetrable and OWNER agrees to waive any claims against CONSULTANT resulting from any such incidents that relate to or affect OWNER’s OT Systems. 20. FORCE MAJEURE CONSULTANT shall not be responsible for delays caused by factors beyond CONSULTANT’s reasonable control, including but not limited to delays because of strikes, lockouts, work slowdowns or stoppages, government ordered industry shutdowns, power or server outages, acts of nature, widespread infectious disease outbreaks (including, but not limited to epidemics and pandemics), failure of any governmental or other regulatory authority to act in a timely manner, failure of the OWNER to furnish timely information or approve or disapprove of CONSULTANT’s services or work product, or delays caused by faulty performance by the OWNER’s or by contractors of any level or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing. When such delays beyond CONSULTANT’s reasonable control occur, the OWNER agrees that CONSULTANT shall not be responsible for damages, nor shall CONSULTANT be deemed in default of this Agreement, and the parties will negotiate an equitable adjustment to CONSULTANT’s schedule and/or compensation if impacted by the force majeure event or condition.