basic ordering agreement between loudoun county sanitation …

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BASIC ORDERING AGREEMENT between

LOUDOUN COUNTY SANITATION AUTHORITY (DBA: LOUDOUN WATER) and

___________________________________________ for

CIVIL ENGINEERING, SURVEYING, AND RELATED SERVICES

THIS IS AN AGREEMENT made as of the latest date in the agreement block between Loudoun County Sanitation Authority, DBA Loudoun Water (“LOUDOUN WATER”) and ______________________________ (“ENGINEER”). LOUDOUN WATER intends to utilize ENGINEER to complete a variety of separate assignments or tasks under individual Task Orders, all of which will be written under, and governed, by this Basic Ordering Agreement (BOA). Collectively, the work called for in these Task Orders shall comprise the “Program.” This Agreement is not a commitment by LOUDOUN WATER to issue any Task Orders to ENGINEER. LOUDOUN WATER’s Solicitation number RFP 2020-009-121001 dated February 14, 2020, and all Addenda issued thereto, are hereby incorporated into this Agreement (Exhibit A). LOUDOUN WATER and ENGINEER, in consideration of their mutual covenants herein, agree as follows concerning professional engineering services by ENGINEER with respect to the Program and the payment for those services by LOUDOUN WATER as set forth below. Execution of this Agreement by ENGINEER and LOUDOUN WATER constitutes LOUDOUN WATER’s written authorization to ENGINEER to commence the services described in such Task Orders on the date provided in the future Task Orders, each of which will be described, negotiated, and authorized separately.

ARTICLE 1 – DEFINITIONS 1.01 Definitions. Wherever used in this BOA the following terms have the meanings indicated

which are applicable to both the singular and plural thereof: A. Agreement. Agreement means this Basic Ordering Agreement between LOUDOUN

WATER and ENGINEER for Professional Services, including the Exhibits. The term “BOA” refers to this Agreement.

B. Constituent of Concern—Asbestos, petroleum, radioactive material, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§5101 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. (“RCRA”); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; or (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material.

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C. Construction Cost. Construction Cost means the total cost of construction of each Task Order Project designed or specified by ENGINEER. Construction Cost does not include ENGINEER’s compensation and expenses, the cost of land, rights-of-way, or compensation for, or damages to, properties, or LOUDOUN WATER’s legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to LOUDOUN WATER. Construction Cost is one of the items comprising Total Project Costs.

D. Contractor. Contractor means the person or entity with whom LOUDOUN WATER enters into a written agreement covering construction work to be performed or furnished with respect to each Task Order Project.

E. Deliverable. The ENGINEER’s work product, which is submitted to LOUDOUN WATER, and includes, but is not limited to, reports, sketches, schematics, specifications, and drawings developed under a Task Order.

F. ENGINEER’s Consultant. ENGINEER’s Consultant means a person or entity having a contract with ENGINEER to provide services as ENGINEER’s independent professional consultant engaged directly on the Project.

G. Laws and Regulations; Laws or Regulations. Any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. For purposes of this Agreement, Loudoun Water’s Engineering Design Manual, or EDM, is considered a code.

H. Program Manager. ENGINEER’s employee assigned to LOUDOUN WATER and responsible for the conduct of the work, schedule and fee of all Task Orders to be completed under this Agreement. The Program Manager is the primary contact between LOUDOUN WATER and ENGINEER and is also known as the Client Manager. LOUDOUN WATER will also identify its Program Manager who will be responsible for the overall administration of the BOA for LOUDOUN WATER.

I. Project Manager. The employees identified by each party and for each party to manage the work included on an individual Task Order.

J. Reimbursable Expenses. Reimbursable Expenses means the expenses incurred by ENGINEER directly in connection with the performance or furnishing of services on a Task Order for which LOUDOUN WATER shall pay ENGINEER.

K. Resident Project Representative. Resident Project Representative means the authorized representative of ENGINEER who will assist ENGINEER at the site during the Construction Phase of a project when called for under a particular Task Order. The Resident Project Representative will be ENGINEER’s agent or employee and under ENGINEER’s supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by LOUDOUN WATER. The duties, responsibilities, and limitations of the Resident Project Representative will be set forth in the Task Order.

L. Short-form General Conditions. An abbreviated version of the Standard General Conditions that may be used on small, short-duration, simple projects that require little

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coordination with LOUDOUN WATER’s operational staff. M. Standard General Conditions. Standard General Conditions means the Loudoun Water

General Conditions of the Construction Contract, most current version. N. Task Order. The individual project assigned to the ENGINEER containing the Work

Plan, schedule, estimated fee, and purchase order. O. Team Charter. The Project document produced by the ENGINEER in collaboration

with LOUDOUN WATER establishing roles and responsibilities of individuals and organizations; project milestones; decision-making protocols; project expectations; and an organization chart which illustrates the hierarchy and relationships of the ENGINEER’s employees assigned to the project and LOUDOUN WATER’s role as the project owner.

P. Total Project Costs. Total Project Costs means the sum of the Construction Cost, allowances for contingencies, the total costs of professional and related services provided by ENGINEER and (on the basis of information furnished by LOUDOUN WATER) allowances for other items, such as charges of all other professionals and consultants, the cost of land and rights-of-way, compensation for or damages to properties, interest and financing charges and other services to be provided by others to LOUDOUN WATER.

Q. Work Plan. The individual scopes of work, separated into six phases as described in Article 3, and defining the work effort (including whether the service will be performed by the ENGINEER or an ENGINEER’s Consultant) and steps to be accomplished in order to complete a particular Task Order. Each Task Order will have a separate Work Plan. The Work Plan is also known as the Scope of Work.

ARTICLE 2 – SERVICES OF ENGINEER 2.01 ENGINEER shall provide LOUDOUN WATER professional engineering, surveying, and

related services in all aspects of the Program to which this Agreement applies as hereinafter provided. Examples of the types of services that may be provided under this BOA are included in Exhibit A. ENGINEER shall serve as LOUDOUN WATER’s professional engineering representative for each Task Order of the Program.

2.02 Task Order. ENGINEER’s services will be detailed in a Task Order for each specific project. The general format of a Task Order is shown in Exhibit C to this Agreement. Each Task Order will describe the specific services to be performed and Deliverables to be provided.

2.03 Standards of Performance A. Standard of Care. The standard of care for all professional engineering and related

services preformed or furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality.

B. Independent Contractor. In the performance of the services under this agreement, ENGINEER shall be an independent contractor, maintaining complete control of the ENGINEER’s personnel and operations. As such, ENGINEEER shall pay all salaries,

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wages, expenses, social security taxes, federal and state unemployment taxes and any similar taxes relating to the performance of this agreement. The ENGINEER, its employees, and agents shall in no way be regarded as employees of LOUDOUN WATER.

C. Consultants. ENGINEER may employ such ENGINEER’s Consultants as ENGINEER deems necessary to assist in the performance or furnishing of professional civil engineering, surveying and related services hereunder. LOUDOUN WATER shall not require ENGINEER to employ any Consultant unacceptable to ENGINEER. ENGINEER shall be solely responsible for the management and performance of its Consultants.

D. Coordination with Other Documents. Loudoun Water has developed its own Standard General Conditions of the Construction Contract, which is used on most construction contracts. Loudoun Water has also developed an abbreviated version called the Short-form General Conditions. Loudoun Water will determine which version (standard or short-form) will be used as the general conditions for Task Orders that will result in construction projects. The ENGINEER shall be responsible for reviewing whichever version is in use, and ensuring its Deliverables use the terms defined in the general conditions selected for the Project covered by the Task Order.

E. Technical Accuracy of Information 1. Provided by LOUDOUN WATER to ENGINEER. Unless stated otherwise in a

Task Order, any information provided by LOUDOUN WATER to ENGINEER, including but not limited to surveys, geotechnical information, and record drawings, is provided as information only, and LOUDOUN WATER does not guarantee the accuracy of such information. ENGINEER shall verify such information, as necessary, to perform its work.

2. Provided by ENGINEER to LOUDOUN WATER. LOUDOUN WATER shall not be responsible for discovering errors and deficiencies in the technical accuracy of ENGINEER’s services and Deliverables. ENGINEER shall correct errors in its Deliverables and deficiencies in technical accuracy without additional compensation.

F. Compliance with Laws and Regulations. ENGINEER and LOUDOUN WATER shall comply with applicable Laws and Regulations. 1. ENGINEER shall comply with the policies, procedures, and instructions of

LOUDOUN WATER that are applicable to ENGINEER's performance of services under this Agreement and that LOUDOUN WATER provides to ENGINEER in writing, subject to the standard of care set forth herein, and to the extent compliance is not inconsistent with professional practice requirements.

2. Each Task Order is based on Laws and Regulations and LOUDOUN WATER-provided written policies and procedures as of the date the Task Order is issued.

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G. Quality Assurance/Quality Control 1. The ENGINEER shall provide and maintain quality assurance/quality control

(QA/QC) procedures acceptable to LOUDOUN WATER covering the services under this Agreement. Complete records of all QA/QC procedures performed by the ENGINEER for each Task Order shall be maintained and made available to LOUDOUN WATER during Agreement performance and for as long afterwards as the Agreement requires.

2. LOUDOUN WATER has the right to review all QA/QC records for services provided for each Task Order, to the extent practicable at all times and places during the term of this Agreement. LOUDOUN WATER shall perform its review of the QA/QC records in a manner that will not unduly delay the work.

3. If any of the QA/QC records show the ENGINEER’s services do not conform to Agreement requirements, LOUDOUN WATER may require the ENGINEER to perform the services again in conformity with Agreement requirements at no increase in compensation. When the defects in services cannot be corrected by re-performance, LOUDOUN WATER may require the ENGINEER to take necessary action to ensure that future performance conforms to Agreement requirements and reduce the Task Order price to reflect the reduced value of the services performed, which will be deemed to have failed to meet the standard of care set forth in this Article 2.

4. If the ENGINEER fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with Agreement requirements, LOUDOUN WATER may (a) by separate contract or otherwise, perform the services and charge to the ENGINEER any cost incurred by LOUDOUN WATER that is directly related to the performance of such service or (b) terminate this Agreement for default.

ARTICLE 3 – TASK ORDERS--GENERAL 3.01 Consistent with this section, the ENGINEER will collaborate with LOUDOUN WATER’S

Project Manager to develop a Work Plan, which will be incorporated into a Task Order. 3.02 Task Order Structure. Task Orders shall be structured into the following six phases:

Phase Description 1 Planning Phase 2 Design Phase 3 Permit Phase 4 Bidding Phase 5 Construction Phase 6 Operational Phase

3.03 When providing services for Task Orders that do not include all six phases, ENGINEER

shall note which phases are not included. Certain phases may include, for reporting purposes, categories within the phase, such as “basic services” and “additional services.” These categories will be identified in the Task Order.

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3.04 Task Order Template. The Task Order sample is attached hereto as Exhibit C, which includes general descriptions of services that may be provided. LOUDOUN WATER reserves the right to alter or change the Task Order template as LOUDOUN WATER determines is necessary or in LOUDOUN WATER’s best interests. Task Orders shall describe, in detail, the following: A. Background (need for the project); B. Project Description; C. Work Plan (by phase) and Deliverables; D. Schedule for performing; E. Estimated cost of the services described by the Work Plan; and F. Any special conditions related to the Work Plan, including any additional Loudoun

Water responsibilities not addressed in the BOA. 3.05 Task Order Development. The procedures for individual Task Orders shall be as follows:

Step 1: The ENGINEER shall be notified by LOUDOUN WATER, in writing, of the scope of a particular task to be performed, whereupon the ENGINEER and LOUDOUN WATER shall mutually develop a description of the Task Order project. Step 2: The ENGINEER shall prepare a written Work Plan, including the schedule, estimated person-hours per phase by category, ENGINEER’s Consultant costs and other direct costs, a list of materials and resources required of LOUDOUN WATER, and the estimated not-to-exceed fee. Depending on the nature of the work in the Task Order, LOUDOUN WATER may develop the initial scope of services. LOUDOUN WATER will determine the Deliverables that are to be provided by the ENGINEER under each Task Order, including the form of the Deliverables (e.g., hard, electronic copy, etc.) Step 3: Following negotiations and LOUDOUN WATER’s approval of the Task Order, a purchase order shall be issued by LOUDOUN WATER, signifying the approval of the Task Order and constituting the notice to proceed with the work. No work is authorized until the ENGINEER has been issued a purchase order. Work performed prior to such issuance shall be performed at the ENGINEER’s risk.

3.06 Task Order Reporting. The ENGINEER shall advise LOUDOUN WATER of the progress of the work on a monthly basis using LOUDOUN WATER’s standard monthly “Task Order Status Report” (Exhibit D), which shall be included as an attachment to the ENGINEER’s invoice. LOUDOUN WATER may change the Task Order Status Report, requesting different information or altering the format of the report, as LOUDOUN WATER determines is necessary or in LOUDOUN WATER’s best interests. The Task Order Status Report shall include, at a minimum, the following information: A. A complete description of the work performed during the period covered by the

invoice. B. Changes or modifications in the Work Plan, which will affect the fee and/or schedule.

Such changes shall be brought to the attention of LOUDOUN WATER as soon as the ENGINEER recognizes the change within the monthly report under “variances” and thereafter in a written Proposed Amendment to the Task Order.

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C. Additional work effort beyond the agreed upon Work Plan or schedule, which shall be authorized by LOUDOUN WATER in writing, in advance.

D. An updated or revised schedule for performing the Work Plan. E. Hours and cost expended by subtask.

3.07 Deliverables provided under a Task Order. Each Task Order will define Deliverables that are to be provided by the ENGINEER to LOUDOUN WATER, including the form of the Deliverables (electronic or hard copy). Note certain Task Orders, such as staff augmentation, permitting assistance, etc., may not include Deliverables. A. Design and Study Reports. Reports provided under a Task Order will, as appropriate,

contain schematic layouts, sketches, and conceptual design criteria with appropriate exhibits to indicate the agreed-to requirements, considerations involved, and ENGINEER’S recommended solution(s). For each recommended solution ENGINEER will provide the following, which will be separately itemized: opinion of probable Construction Cost; proposed allowances for contingencies; the estimated total costs of design, professional, and related services to be provided by ENGINEER and its Consultants; and, on the basis of information furnished by LOUDOUN WATER, a tabulation of other items and services included within the definition of Total Project Costs.

B. Design Documents. The individual Task Orders will define the design criteria and Deliverables, which may include a preliminary engineering report, schematic design, and percent design submittals (e.g., 30%, 60%, etc. through Bidding Documents). LOUDOUN WATER will review the design submittals to ensure LOUDOUN WATER’S needs and design preferences are included. The ENGINEER may be required to facilitate design review workshops to discuss the design and operational considerations included in the design.

C. Bidding Documents. The ENGINEER is responsible for developing bidding documents using the terms and structure defined in either the Standard General Conditions or the Short-form General Conditions. For most Task Orders, the ENGINEER will develop the Drawings and Specifications (Division 2+) only. LOUDOUN WATER will prepare the “front-ends” of the bidding documents, including the Invitation to Bid, Instructions to Bidders, Agreement, all Bond forms, Standard General Conditions (or Short-form General Conditions), and Supplementary Conditions. LOUDOUN WATER may develop most, or all, of the Division 1 Specifications, but this determination will be Task Order-specific and defined in the Task Order.

ARTICLE 4 – LOUDOUN WATER’S RESPONSIBILITIES 4.01 Except as otherwise provided in each Task Order, LOUDOUN WATER shall:

A. Provide the services and information described in this Section in a timely manner so as not to delay the services of ENGINEER.

B. Designate a Project Manager in writing for each Task Order. Loudoun Water’s Project Manager will transmit instructions, receive information, interpret and define LOUDOUN WATER’s policies and decisions with respect to ENGINEER’s services.

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C. Provide all criteria and information as to LOUDOUN WATER’s requirements for each Task Order shall come from LOUDOUN WATER’s Project Manager, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, scheduling constraints, and any budgetary limitations. LOUDOUN WATER will furnish copies of all design and construction standards which LOUDOUN WATER will require to be included in the Drawings and Specifications.

D. Facilitate or provide access to available information pertinent to each Task Order including previous reports and any other data relative to design or construction.

E. Examine alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by ENGINEER and render decisions pertaining thereto in a timely manner.

F. Provide data prepared by or services of others, including explorations and tests of subsurface conditions at or contiguous to the site, the services of an independent testing laboratory, or hydrographic surveys over and above that stipulated in each Task Order. For limits regarding the use of information provided by LOUDOUN WATER to the ENGINEER, see paragraph 2.03.E.1.

G. Arrange for access to and make provisions for ENGINEER to enter upon public and private property as required for ENGINEER to perform services under this Agreement.

H. Advise ENGINEER of the identity and scope of services of independent consultants employed by LOUDOUN WATER to perform or furnish services in regard to each Task Order. If LOUDOUN WATER designates a person or entity other than, or in addition to, ENGINEER to represent LOUDOUN WATER at the site, LOUDOUN WATER shall define the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER.

I. Attend the pre-bid conference; bid opening, pre-construction conferences, construction progress and other job-related meetings, and substantial completion and final payment inspections.

ARTICLE 5 – TIMES FOR RENDERING SERVICES 5.01 Time is of the essence with respect to the ENGINEER’s performance of work under this

Agreement. The work included in a Task Order will be completed to the LOUDOUN WATER’s satisfaction within the negotiated schedule for each Task Order.

5.02 If in any Task Order, specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided and if such periods of time or dates are materially changed or extended through no fault of ENGINEER, then LOUDOUN WATER will provide additional time and compensation to the Engineer, as necessary, in a Task Order amendment. If LOUDOUN WATER has requested changes in the scope, extent, or character of the Task Order, the time of performance of ENGINEER’s services shall be adjusted in writing as an amendment to each Task Order affected.

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ARTICLE 6 – CONTRACT TERMS AND LIMITS 6.01 All work under this Agreement shall be assigned within one (1) year from the date of the

Agreement. This Agreement will be extended automatically for up to four (4) additional one-year periods. LOUDOUN WATER will provide written notice 60 days in advance of the renewal date if it elects not to extend this Agreement.

6.02 Individual Task Orders shall not exceed $2,500,000 in value and the sum of all Task Orders shall not exceed $6,000,000 in the course of a one-year term in accordance with the Code of Virginia § 2.2-4303.1 as amended.

ARTICLE 7 – BASIS OF COMPENSATION 7.01 The bases of compensation (compensation methods) for the ENGINEER’s services shall be

identified in the Task Order. The Parties shall agree on one of the following two bases of compensation for services under a Task Order: A. Lump Sum (plus any expenses expressly eligible for reimbursement); or B. Direct Labor Costs Time a Factor (plus any expenses expressly eligible for

reimbursement). 7.02 Lump Sum. The Lump Sum amount shall include full and complete compensation for

ENGINEER’s services and those of the ENGINEER’s Consultant, if any, including labor costs, overhead, profit, and expenses. A. Reimbursable Expenses, which are described in 7.03.D below, shall be identified in the

Task Order as not included in the lump sum amount. Engineer shall include an estimate of the Reimbursable Expenses with its Lump Sum pricing proposal.

B. Total compensation under the Lump Sum method shall be equal to: Lump Sum Amount for ENGINEER’s labor and its Consultants + Reimbursable Expenses

7.03 Direct Labor Costs (DLC) Times a Factor. The DLC Times a Factor compensation method shall be itemized and calculated as described below. A. “Direct Labor Costs” means salaries and wages (basic, premium and incentive) paid to

personnel, but does not include indirect payroll related costs or fringe benefits. The direct labor hourly rates, which will be the basis for determining the Direct Labor Costs, are identified in Exhibit B. Changes in the hourly rate ranges of the ENGINEER’s personnel resulting from periodic review by the ENGINEER will be submitted to LOUDOUN WATER no more frequently than annually and may, with prior written consent of LOUDOUN WATER, be incorporated into this Agreement by written amendment. Notwithstanding the foregoing, no increase shall be made in the hourly rates ranges of the ENGINEER’s personnel for a period of one year after the date hereof and thereafter, no such increase shall exceed any change in the Consumer Price Index during the immediately preceding year. As employed herein, the term “Consumer Price Index” shall mean the Consumer Price Index for all Urban Users for Washington-Baltimore, as published by the Bureau of Labor Statistics, U.S. Department of Labor.

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B. Factor. Under this compensation method, LOUDOUN WATER shall pay ENGINEER for services performed or furnished under Article 2 in accordance with the provisions included in Exhibit B the factor below, which covers all overhead costs and profit: 1. General. For all services performed by principals and employees engaged directly

on the Task Order project (except for ENGINEER's Resident Project Representative), a factor of ______ shall be applied against the Direct Labor Costs.

2. Resident Project Representative Services. For services of ENGINEER's Resident Project Representative performed or for services where LOUDOUN WATER provides office space for the ENGINEER on a full-time basis, a factor of ______ shall be applied against the Direct Labor Costs.

C. ENGINEER's Consultants. For services of ENGINEER's Consultants engaged to perform or furnish services under this compensation method, the amount billed to ENGINEER therefore times a factor of 1.05. Unless otherwise approved in a Task Order, ENGINEER's Consultants shall invoice on an hourly basis in the same manner as the ENGINEER and shall not utilize Direct Labor Hourly Costs times a factor greater than ENGINEER’s approved factor without LOUDOUN WATER's consent. ENGINEER include its Consultants’ invoices as attachments to ENGINEER’s invoice.

D. Reimbursable Expenses. Reimbursable Expenses include, but are not limited to, authorized travel and subsistence (which shall be limited to common carrier, coach class, and a per diem authorized in advance by LOUDOUN WATER), ground transportation, laboratory fees, reproduction expenses, mailing expenses and special supplies. Reimbursable Expenses shall not be marked up.

E. The total compensation under this method shall be equal to: (DLC x Factor) + (Engineer’s Consultants x 1.05) + Reimbursable Expenses

F. Estimated Compensation for Services. ENGINEER's estimate of the amount that will become payable for services performed under this compensation method (including Reimbursable Expenses) will be based on each Task Order. Each Task Order amount for services under this Agreement performed under this compensation method will be based on a not-to-exceed estimate. Compensation shall not exceed the estimated amount included in the Task Order without authorization by LOUDOUN WATER.

G. Notice of Exceeding the Estimated Compensation Amount. If it becomes apparent to ENGINEER at any time that ENGINEER cannot complete the work for the not-to-exceed amount included in the Task Order, ENGINEER shall promptly, and no later than the time when the ENGINEER has expended 80% of the not-to-exceed Task Order amount, give LOUDOUN WATER written notice thereof, and shall advise LOUDOUN WATER that the ENGINEER has determined it needs additional moneys to complete the work. Promptly thereafter LOUDOUN WATER and ENGINEER shall review the matter of compensation for such services, and either: 1. LOUDOUN WATER shall agree to additional compensation; or 2. LOUDOUN WATER and ENGINEER shall agree to a reduction in the remaining

services to be rendered by ENGINEER under this Agreement so that total compensation for such services will not exceed said estimated amount.

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H. Notwithstanding the foregoing Paragraph 7.03.G, if LOUDOUN WATER has determined the work has progressed inefficiently through no fault of LOUDOUN WATER, LOUDOUN WATER has the right to direct the ENGINEER complete the work without additional compensation, to which the ENGINEER shall comply, and any additional compensation ENGINEER deems it is due shall be subject to the dispute provisions in Article 13. The ENGINEER shall only be paid for services rendered if ENGINEER exceeds the estimated amount when LOUDOUN WATER and ENGINEER have agreed in advance to an increase in the compensation due to ENGINEER.

7.04 Service as a Witness. Unless agreed to otherwise by LOUDOUN WATER, for services performed by ENGINEER's principals and employees as consultants or witnesses in any litigation, arbitration, or other legal or administrative proceeding, ENGINEER shall be compensated on a Direct Labor Costs Times a Factor basis for the time spent to prepare for, and appear in, any such litigation, arbitration, or proceeding. Compensation for ENGINEER's Consultants for such services will be on the basis provided in Paragraph 7.03.

7.05 Records of Costs A. ENGINEER’s Costs. Records of ENGINEER’s costs pertinent to ENGINEER’s

compensation under this Agreement by the Direct Labor Costs Time a Factor method and for Reimbursable Expenses will be kept in accordance with Generally Accepted Accounting Practices (GAAP). Copies will be made available to LOUDOUN WATER at cost upon request of LOUDOUN WATER.

B. Records of ENGINEER’s Subcontractor’s Costs. ENGINEER further agrees to include in any subcontract entered into in connection with a Task Order, a provision to the effect that the ENGINEER’s Subcontractor (Consultant) agrees to the same provisions as Paragraphs 7.05.A and 8.02 (for payments to subcontractors to the Engineer’s Consultants).

ARTICLE 8 – PAYMENTS TO ENGINEER FOR SERVICES AND EXPENSES 8.01 Invoicing and Payment

A. The ENGINEER shall submit a single copy of individual invoices, by Task Order, to include a detailed itemization of all charges, and the basis of compensation, all as described below. 1. Lump Sum. The ENGINEER’s invoice shall include the ENGINEER’s estimate of

the proportion of the total services actually completed during the billing period plus those Reimbursable Expenses incurred during the period that are expressly identified as reimbursable in the Task Order.

2. Direct Labor Costs Times a Factor. The ENGINEER’s invoice shall be itemized by: a. Task or subtask, showing the ENGINEER’s direct labor costs in performing

work by task or subtask; b. Costs for the ENGINEER’s Consultants; and

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c. Reimbursable Expenses. B. Task Order Status Report. The ENGINEER shall submit with each invoice a

completed Task Order Status Report in the form included in Exhibit D. C. ENGINEER agrees to submit invoices for services rendered and expenses incurred

within twenty-one (21) days following the end of the month during which such service was rendered or expense incurred.

D. All such invoices will be paid promptly by LOUDOUN WATER unless any items thereon are questioned, in which event payment will be withheld pending verification of the amount invoiced and the validity of the invoiced item. LOUDOUN WATER will present its objections or questions regarding any items in ENGINEER’s invoice in writing and within 20 days of receipt of the invoice. The ENGINEER shall provide complete cooperation during any such investigation. All invoices shall include the purchase order number, date of services, a listing of staff (name and/or employee number), labor category for work performed, actual hours worked and actual billing rates. Invoices shall be forwarded to the following address:

LOUDOUN WATER Attn: Accounts Payable 44865 Loudoun Water Way Ashburn, VA 20147

E. If Loudoun Water fails to make any payment due to ENGINEER for services and expenses within forty-five (45) days after receipt of the ENGINEEER’S invoice, the amounts due to the ENGINEER will be increased at the rate of one-tenth percent (0.1%) per month from said forty-fifth (45th) day; and, in the event of a disputed or contested billing, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. Any amounts withheld due to a good faith dispute shall not be subject to interest charges so long as they are paid within forty-five (45) days of resolution of the dispute.

8.02 Payment Requirements Related to Subcontractors (ENGINEER’s Consultants) A. ENGINEER shall take one of the two following actions seven days after receipt of

amounts paid by LOUDOUN WATER for work performed by the subcontractor (including, but not limited to, ENGINEER’s Consultants) under this Agreement: 1. Pay the subcontractor for the proportionate share of the total payment received from

LOUDOUN WATER attributable to the work performed by the subcontractor under this Agreement; or

2. Notify LOUDOUN WATER and subcontractor, in writing, of the ENGINEER’s intention to withhold all or part of the subcontractor’s payment with the reason for nonpayment.

B. The ENGINEER’s agreement with subcontractors shall contain a payment clause requiring (i) individual subcontractors to provide their social security numbers, and (ii) proprietorships, partnerships, and corporations to provide their federal employer identification numbers; and an interest clause that obligates the ENGINEER to pay interest to the subcontractor on all amounts owed by ENGINEER that remain unpaid

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after seven days following payment by LOUDOUN WATER for work performed by the subcontractor under this agreement, except for amounts withheld as allowed in Paragraph 8.02.A. above.

ARTICLE 9 – OPINIONS OF COST 9.01 ENGINEER’s opinions of Construction Costs and Total Project Costs provided for herein

are to be made on the basis of ENGINEER’s experience and qualifications and represent ENGINEER’s best judgment as an experienced and qualified professional engineer generally familiar with the construction industry. It is understood that ENGINEER cannot and does not guarantee that bids or actual costs will not vary from opinions of Total Project or Construction Costs prepared by ENGINEER.

ARTICLE 10 – SUSPENSION AND TERMINATION 10.01 Suspension

A. By LOUDOUN WATER: LOUDOUN WATER may suspend a Task Order for up to 90 days upon seven days written notice to ENGINEER.

B. By ENGINEER: ENGINEER may suspend services under a Task Order (a) if LOUDOUN WATER has failed to pay ENGINEER for invoiced services and expenses, as set forth in Paragraph 8.01, or (b) in response to the presence of Constituents of Concern at the Site, as set forth in Paragraph 13.08.

C. General. A suspension on a specific Task Order, whether by LOUDOUN WATER or ENGINEER, shall not affect the duty of the two parties to proceed with their obligations under other Task Orders.

10.02 Termination A. Task Order, for Cause by Either Party. The obligation to provide further services

under a specific Task Order may be terminated for cause by either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms of the specific Task Order or this Agreement, whose terms govern the specific Task Order, through no fault of the terminating party.

B. Task Order, for Cause by ENGINEER. Engineer may terminate a Task Order: 1. upon seven days written notice if LOUDOUN WATER demands that ENGINEER

furnish or perform services contrary to ENGINEER’s responsibilities as a licensed professional; or

2. upon seven days written notice if the ENGINEER’s services under a Task Order are delayed or suspended for more than 90 days for reasons beyond ENGINEER’s control, or as the result of the presence at the Site of undisclosed hazardous materials.

C. Notwithstanding the foregoing, neither this Agreement nor the Task Order will terminate under Paragraph 10.02 A. and B if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be

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reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice.

D. Termination for Convenience by LOUDOUN WATER: LOUDOUN WATER may terminate a Task Order, or any portion or a Task Order, or this Agreement for LOUDOUN WATER’s convenience, effective upon ENGINEER’s receipt of notice from LOUDOUN WATER.

E. Termination for Non-Appropriation of Funds. If funds are not appropriated for any succeeding fiscal year subsequent to the one in which this Agreement is entered into, for the purposes of this Agreement, then LOUDOUN WATER may terminate this Agreement upon thirty (30) days prior written notice to ENGINEER. Should termination be accomplished in accordance with this paragraph, LOUDOUN WATER shall be liable only for payments due through the effective date of termination. LOUDOUN WATER agrees that should it terminate in accordance with this paragraph, it shall not obtain services which are substantially equal to or similar to those for which this Agreement was entered into during the same fiscal year to which the termination applies. This provision shall survive any termination of ENGINEER.

F. Effective Date of Termination: The terminating party under this Article 10 may set the effective date of termination at a time up to 30 days later than otherwise provided to allow ENGINEER to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Task Order materials in orderly files.

G. Payments Upon Termination: 1. In the event of any termination under this Article 10, ENGINEER will be entitled to

invoice LOUDOUN WATER and to receive full payment for all services performed or furnished in accordance with the specific Task Order and, if applicable, this Agreement, and for all expenses incurred through the effective date of termination, to the extent that the specific Task Order (or Task Orders) allows reimbursement for such expenses. Upon making such payment, LOUDOUN WATER shall have the full ownership and rights to the use of documents or Deliverables, at LOUDOUN WATER’s sole risk, subject to the provisions of Article 13.02.

2. In the event of termination by LOUDOUN WATER for convenience or by ENGINEER for cause, ENGINEER shall be entitled, in addition to invoicing for those items identified in Paragraph 10.02.G.1, to invoice LOUDOUN WATER and receive payment of a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with ENGINEER’s Consultants, and other related close-out costs, using the basis of compensation for services, as stated in the specific Task Order.

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ARTICLE 11 – INSURANCE 11.01 Insurance. ENGINEER shall secure and maintain throughout the duration of the

Agreement, insurance of such type and in such amounts as may be necessary to protect its interests and the interests of LOUDOUN WATER against hazards or risks of loss as hereinafter specified: A. Comprehensive General Liability

1. $1,000,000 Bodily Injury per occurrence and aggregate 2. $1,000,000 Property Damage per occurrence and aggregate 3. Comprehensive General Form 4. Independent Contractors Coverage 5. Products/Completed Operations 6. Broad Form Contractual Liability 7. Personal Injury Liability

B. Comprehensive Automobile Liability 1. $1,000,000 Combined Single Limits 2. Statutory Uninsured Motorist Coverage 3. Hired, Owned, Used and Non-Owned Coverage

C. Worker's Compensation and Employer's Liability 1. Statutory Coverage for Virginia 2. $1,000,000 Employer's Liability 3. Broad Form All States Endorsement 4. Compliance with all Federal Statutes, including U.S. Longshoreman and Harbor

Worker’s Act, the Jones Act, and Federal Employees Act

D. Umbrella / Excess Liability – Additional $ 1,000,000 liability coverage over the primary limits for Comprehensive General Liability, Comprehensive Automobile Liability, and the Employer's Liability

E. Professional Liability - Errors and Omissions Insurance – Not less than $3,000,000 per claim/aggregate limit, and upon request, ENGINEER shall provide higher limits commensurate with the responsibilities of its work under this Agreement, as determined by LOUDOUN WATER in its reasonable discretion.

11.02 Additional Coverage. For a particular Task Order Project, LOUDOUN WATER may request that ENGINEER provide additional insurance coverage, different limits or revised deductibles in excess of those specified. If so requested by LOUDOUN WATER, and if commercially available, ENGINEER shall obtain such additional insurance coverage, different limits or revised deductibles, for such periods of time as requested by LOUDOUN WATER. LOUDOUN WATER shall reimburse the ENGINEER for the additional cost of this coverage.

11.03 Coverage Provisions: A. All deductibles or self-insured retention shall appear on the certificate(s) and shall be

subject to approval by LOUDOUN WATER. At the option of LOUDOUN WATER,

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either; the insurer shall reduce or eliminate such deductible or self-insured retention; or the ENGINEER shall be required to procure a bond guaranteeing payment of losses and related claims expenses.

B. LOUDOUN WATER, its officers/ officials, employees, agents and volunteers shall be added as "additional insured" as their interests may appear. This provision does not apply to Professional Liability or Workers' Compensation/Employers' Liability.

C. The ENGINEER's insurance shall be primary over any applicable insurance or self-insurance maintained by LOUDOUN WATER.

D. The ENGINEER shall provide thirty (30) days written notice to LOUDOUN WATER before any cancellation, suspension, or void of coverage in whole or part, where such provision is reasonable.

E. All coverages for subcontractors of the ENGINEER shall be subject to all of the requirements stated herein.

F. Failure to comply with any reporting provisions of the policy(s) shall not affect coverage provided LOUDOUN WATER, its officers/officials, agents, employees and volunteers.

G. The insurer shall agree to waive all rights of subrogation against LOUDOUN WATER, its officers/officials, agents, employees or volunteers for any act, omission or condition of premises which the parties may be held liable by reason of negligence.

H. The ENGINEER shall furnish LOUDOUN WATER Certificates of Insurance including endorsements affecting coverage. The certificates are to be signed by a person authorized by the insurance company(s) to bind coverage on its behalf, if executed by a broker, notarized copy of authorization to bind, or certify coverage must be attached.

I. All insurance shall be placed with insurers maintaining an A.M. Best rating of no less than an A:VII. If A.M. Best rating is less than A:VII, approval must be received from LOUDOUN WATER’s Procurement Agent.

J. All coverage’s designated herein shall be as broad as the Insurance Services Office (ISO) forms filed for use with the Commonwealth of Virginia.

11.04 Indemnification. ENGINEER shall indemnify and hold harmless LOUDOUN WATER and LOUDOUN WATER’s members, officers, authorized representatives and employees from and against any and all claims, losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: A. any material breach of the representations, warranties, agreements and covenants of

ENGINEER contained in this Agreement; B. any injuries to persons or property caused by any negligent or willful and wrongful act

or omission of ENGINEER or its subcontractors, subconsultants, employees, or other authorized representatives;

C. any claims filed against LOUDOUN WATER by a subcontractor, subconsultant or employee of ENGINEER, except for such claims by subcontractor, subconsultant or

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employee of ENGINEER arising out of LOUDOUN WATER’s negligence or intentional misconduct.

11.05 Percentage Share of Negligence. To the fullest extent permitted by Laws and Regulations, the ENGINEER’S total liability to Loudoun Water and anyone claiming by, through, or under LOUDOUN WATER for any cost, loss, or damages caused in part by the negligence or responsibility of the ENGINEER shall not exceed the percentage share that the ENGINEER’S negligence or responsibility bears to the total negligence or responsibility of LOUDOUN WATER, ENGINEER, and all other entities and individuals.

ARTICLE 12 – CONTROLLING LAW 12.01 Controlling Law. This Agreement shall be interpreted and enforced in accordance with the

laws of the Commonwealth of Virginia. Any action or proceeding arising out of or related to this Agreement shall be brought only in the courts of competent jurisdiction in the Commonwealth of Virginia, County of Loudoun.

12.02 Tax Exempt. LOUDOUN WATER is exempt from, and will not pay any, federal, state or local taxes which may be applicable to the transactions contemplated by this Agreement, including without limitation any Federal Excise Tax, Transportation Tax or VA Sales and Use Tax. LOUDOUN WATER’s federal tax exempt identification number is: 54-0716770.

12.03 Drug-Free Workplace. For purposes hereof, a “drug-free workplace” shall mean the site for the performance of the contract contemplated by this Agreement or a Task Order. During the performance of this Agreement, ENGINEER agrees to: A. provide a drug-free workplace for ENGINEER’s employees; B. post in conspicuous places, available to employees and applicants for employment, a

statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in ENGINEER’s workplace and specifying the actions that will be taken against employees for violations of such prohibition;

C. state in all solicitations or advertisements for employees placed by or on behalf of ENGINEER that ENGINEER maintains a drug-free workplace; and

D. include the provisions of the foregoing clauses in every subcontract of over $10,000, so that the provisions will be binding upon each subcontractor or vendor.

12.04 Prohibitions. ENGINEER acknowledges and agrees that: A. alcoholic beverages, firearms and illegal drugs are prohibited in all LOUDOUN

WATER facilities and on all LOUDOUN WATER property; and B. ENGINEER’s employees are prohibited from engaging in the unlawful manufacture,

sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the work contemplated by this Agreement or a Task Order.

12.05 Employment of Unauthorized Aliens. ENGINEER hereby covenants and agrees that it does not, and shall not during the performance of this Agreement, knowingly employ an

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unauthorized alien as such term is defined in the Federal Immigration Reform and Control Act of 1986.

12.06 Non-Discrimination. A. LOUDOUN WATER does not discriminate against faith-based organizations. B. A faith-based organization contracting with LOUDOUN WATER (i) shall not

discriminate against any recipient of goods, services, or disbursements made pursuant to a contract on the basis of the recipient's religion, religious belief, refusal to participate in a religious practice, or on the basis of race, age, color, gender or national origin and (ii) shall be subject to the same rules as other organizations that contract with public bodies to account for the use of the funds provided; however, if the faith-based organization segregates public funds into separate accounts, only the accounts and programs funded with public funds shall be subject to audit by the public body. Nothing in clause (ii) shall be construed to supersede or otherwise override any other applicable state law.

C. Consistent with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104-193, funds provided for expenditure pursuant to contracts with public bodies shall not be spent for religious worship, instruction, or proselytizing; however, this prohibition shall not apply to expenditures pursuant to contracts, if any, for the services of chaplains.

D. Nothing in this section shall be construed as barring or prohibiting a faith-based organization from any opportunity to make a bid or proposal or contract on the grounds that the faith-based organization has exercised the right, as expressed in 42 U.S.C. (§ 2000 e-1 et seq.), to employ persons of a particular religion.

E. LOUDOUN WATER shall provide to each individual who applies for or receives goods, services, or disbursements provided pursuant to a contract between it and a faith-based organization a notice in bold face type that states: "Neither the public body's selection of a charitable or faith-based provider of services nor the expenditure of funds under this Agreement is an endorsement of the provider's charitable or religious character, practices, or expression. No provider of services may discriminate against you on the basis of religion, a religious belief, or your refusal to actively participate in a religious practice. If you object to a particular provider because of its religious character, you may request assignment to a different provider. If you believe that your rights have been violated, please discuss the complaint with your provider or notify the appropriate person as indicated in this form."

F. During the performance of this Agreement, ENGINEER agrees as follows: 1. ENGINEER will not discriminate against any employee or applicant for

employment because of race, religion, color, sex, national origin, age, disability, or other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of ENGINEER. ENGINEER agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

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2. ENGINEER, in all solicitations or advertisements for employees placed by or on behalf of ENGINEER, will state that ENGINEER is an equal opportunity employer.

3. Notices, advertisements, and solicitations placed in accordance with federal laws, rules, or regulations shall be deemed sufficient for the purpose of meeting the requirements herein.

4. ENGINEER will include the provisions of Article 11.07.F in every subcontract and/or sub-consulting agreement related to this Agreement and any Task Order issued in connection with it over $10,000, in order that the provisions above will be binding upon each subcontractor, sub-consultant and vendor

12.07 Notice of Required Disability Legislation Compliance A. LOUDOUN WATER is required to comply with state and federal disability legislation:

The Rehabilitation Act of 1973 Section 504, The Americans with Disabilities Act (ADA) for 1990 Title II and The Virginians with Disabilities Act of 1990.

B. Specifically, LOUDOUN WATER may not, through its contractual and/or financial arrangements, directly or indirectly avoid compliance with Title II of the Americans with Disabilities Act, Public Law 101-336, which prohibits discrimination by public entities on the basis of disability. Subtitle A protects qualified individuals with disability from discrimination on the basis of disability in the services, programs, or activities of all State and local governments. It extends the prohibition of discrimination in federally assisted programs established by the Rehabilitation Act of 1973 Section 504 to all activities of State and local governments, including those that do not receive Federal financial assistance, and incorporates specific prohibitions of discrimination on the basis of disability in Titles I, III, and V of the Americans with Disabilities Act. The Virginians with Disabilities Act of 1990 follows the Rehabilitation Act of 1973 Section 504.

12.08 Safety. The ENGINEER and ENGINEER’s Consultants shall comply with all Occupational Safety and Health Administration (OSHA), state and county safety and occupational health standards, rules and regulations. The ENGINEER and ENGINEER’s Consultants shall be held responsible for the safety of their employees as well as any unsafe acts or conditions by their employees that may cause injury or damage to any persons or property within and around the work area under this Program.

12.09 Licensure. To the extent required by the Commonwealth of Virginia (see, e.g., Sections 54.1-406 et seq. of the Code of Virginia), the ENGINEER shall be duly licensed to perform the services required to be delivered pursuant to this Agreement.

12.10 Business, Professional, and Occupational License Requirement. In executing this Agreement, the ENGINEER agrees to conform to local business license tax requirements where applicable. Questions should be referred to the Commissioner of the Revenue’s Office (703) 777-0260 in Loudoun County, Virginia.

12.11 Ethics in Public Contracting. The Ethics in Public Contracting provisions of Sections 2.2-4367 through 2.2-4377 of the Code of Virginia are applicable to all contracts entered into by LOUDOUN WATER.

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ARTICLE 13 – GENERAL CONSIDERATIONS 13.01 Contractual Disputes. Unless otherwise specified in this Agreement, the following shall

apply to contractual disputes: A. ENGINEER shall give written notice to the LOUDOUN WATER’S Program Manager

of its intent to file a claim for money or other relief within ten (10) calendar days of the occurrence or the beginning of the work upon which the claim is to be based, or when ENGINEER has submitted a proposed modification of the Agreement or Task Order, within ten (10) calendar days following LOUDOUN WATER’s rejection of the proposed modification.

B. The written claim shall be submitted to LOUDOUN WATER’S Program Manager no later than thirty (30) days after completion of the work upon which the claim is based. The General Manager, or his designee, shall render a final decision within sixty (60) days of receipt of the written claim.

C. ENGINEER may not institute a legal action prior to the receipt of the General Manager’s final written decision on the claim unless the General Manager fails to render a decision within ninety (90) days of receipt of the claim. Failure of LOUDOUN WATER to render a decision within the time frames outlined above shall not result in ENGINEER being awarded the relief claimed or in any other relief of penalty. The sole remedy for LOUDOUN WATER’s failure to render a decision within the time frames above shall be ENGINEER’s right to institute immediate legal action. A failure of LOUDOUN WATER to render a final decision within the above time frames shall be deemed a final decision denying the claim by LOUDOUN WATER. The decision of the General Manager shall be final and conclusive unless the contractor appeals by instituting legal proceedings as provided in the Code of Virginia § 2.2-4364.

13.02 Ownership and Access of Program Documents. A. All Deliverables and other instruments of service created by or on behalf of

ENGINEER in connection with the Program, and any and all copyrights and other intellectual property rights therein (together referred to herein as the “Instruments of Services”) shall be deemed for all purposes to be the property of LOUDOUN WATER upon payment for the services completed to date during which the Instruments of Service were prepared. Notwithstanding any provision to the contrary contained in this Agreement, ENGINEER shall retain sole ownership to its preexisting information including but not limited to computer programs, software, standard details, figures, templates and specifications, subject to a limited, non-exclusive license which is hereby granted to LOUDOUN WATER for the use of the same.

B. All designs, drawings, specifications, Deliverables and other documents (whether in hard copy or electronic form), and other work products of ENGINEER under this Agreement are Instruments of Service for this Program whether the Program is completed or not and are not intended or represented to be suitable for re-use on any other project or extensions of this Program. Reuse or adaptation of the instruments of service of ENGINEER by LOUDOUN WATER on extensions of this Program, any

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other project or any use other than their specific written purpose shall be at LOUDOUN WATER’s sole risk without liability or legal exposure to the ENGINEER.

C. Except as expressly set forth in Article 13.02, this provision is not intended to and shall not be construed to confer upon any person or entity that is not a party of this Agreement any right of access to the Program Documents under statute or otherwise.

13.03 Examination of Records. LOUDOUN WATER and any duly authorized representatives (each, an “Auditing Party”) shall, at any time (and from time to time) during the term of this Agreement and until the date that is five (5) years after the date on which final payment shall have been made hereunder and all other pending matters shall have been resolved, have access to all Program Documents in the possession, custody, control or ownership of ENGINEER for purposes of performing an audit or examination. The Program Documents shall include, but shall not be limited to job diaries, bid proposal worksheets, subcontracts, purchase orders, daily reports, invoices, scheduling materials, financial and accounting records, internal memoranda, notes and other documents, records and materials relating in any way to the Program; provided, however, that the term "Program Documents" shall in no event be construed to include documents, records, or other materials protected by the attorney-client privilege or back-up documentation related to services provided under a lump sum basis (exclusive of Reimbursable Expenses). The ENGINEER hereby covenants and agrees that, within 10 days after ENGINEER receives written notice from an Auditing Party, it shall (i) make the Program Documents available for inspection and copying during the ENGINEER’s regular business hours by such Auditing Party, with copies being provided at a reasonable cost payable by the Auditing Party; and (ii) deliver to the Auditing Party an index of all documents and materials which ENGINEER claims are protected by the attorney-client privilege, stating for each such document the addressee(s), the author(s), any other recipients, the date, length (if applicable), the type of document or material, and a description of the subject matter sufficient to assess the applicability of the claim of privilege without revealing information itself privileged. Any failure on the part of ENGINEER to comply with the provisions of this Paragraph 8.3 shall constitute a breach of this Agreement and, regardless of whether such failure occurs during the term of this Agreement, or within the five (5) year period commencing on the date of final payment hereunder, shall constitute sufficient grounds for debarment of the ENGINEER. The ENGINEER hereby agrees that it shall pay and be responsible for all costs and expenses (including court costs and attorney's fees) incurred by an Auditing Party in enforcing this provision. The ENGINEER also agrees to include in any subcontract for more than $10,000 entered into as a result of this Agreement, a provision to the effect that the subcontractor agrees that LOUDOUN WATER or any duly authorized representative shall, until the expiration of five (5) years after final payment under the subcontract, have access to an the right to examine and copy any of its directly pertinent books, documents, papers and records related to such subcontract.

13.04 Successors and Assigns; Modification A. LOUDOUN WATER and ENGINEER each is hereby bound and the partners,

successors, executors, administrators and legal representatives of LOUDOUN WATER and ENGINEER (and to the extent permitted by Paragraph 13.04.B. the assigns of LOUDOUN WATER and ENGINEER) are hereby bound to the other party to this

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Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement.

B. Neither LOUDOUN WATER nor ENGINEER may assign, sublet or transfer any rights under or interest (including, but without limitation, monies that may become due or monies that are due or responsibility to perform any Task Order issued in connection with this Agreement) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. No substitution, change, modification, or deviation from the terms of this Agreement shall be made without prior written authorization from LOUDOUN WATER.

C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose or give rise to any

duty owed by ENGINEER to any other person or entity, or to any surety for, or employee of any other person or entity, except for LOUDOUN WATER, or give any rights in or benefits under this Agreement to anyone other than LOUDOUN WATER and ENGINEER.

2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of LOUDOUN WATER and ENGINEER and not for the benefit of any other party.

13.05 Survival. All express representations, indemnifications or limitations of liability made in or given in this Agreement will survive the completion of all services of ENGINEER under this Agreement or the termination of this Agreement for any reason.

13.06 Antitrust. By entering into this Agreement, the ENGINEER conveys, sells, assigns, and transfers to LOUDOUN WATER all rights, title and interest in and to all causes of the action it may now have or hereafter acquire under the antitrust laws of the United States and LOUDOUN WATER, relating to the particular goods or services purchased or acquired by LOUDOUN WATER under this Agreement.

13.07 No Third-Party Beneficiaries. Unless specified otherwise in a Task Order, the Engineer is not, and shall not be deemed to be, an agent of Loudoun Water. No third party is entitled to rely for any purpose on any of the representations, warranties and agreements of LOUDOUN WATER and the ENGINEER set forth herein. Neither LOUDOUN WATER nor the ENGINEER shall be liable to any third party because of any reliance on the representations, warranties, and agreements of LOUDOUN WATER and the ENGINEER contained in this Agreement.

13.08 Constituents of Concern A. ENGINEER shall have no duty or responsibility under this Agreement to determine the

existence, location, quantity, type or composition of any Constituents of Concern that

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may exist at the site, unless such obligation is set forth specifically within a particular Task Order.

B. During the performance of services covered by this Agreement, if ENGINEER becomes aware of, or suspects the existence of, Constituents of Concern on-site or in a facility included in any Task Order Project, ENGINEER shall notify LOUDOUN WATER immediately, and shall take no further action with respect to such Constituents of Concern until so instructed by LOUDOUN WATER.

13.09 Use of LOUDOUN WATER Name. No advertising, sales, promotion or other materials of the ENGINEER or its agents or representatives may identify or reference this Agreement or LOUDOUN WATER in any manner absent LOUDOUN WATER's prior written consent. As a condition of entering into this Agreement, the ENGINEER further agrees to refrain from the following, absent LOUDOUN WATER's prior written approval: (a) making any statement to the media regarding the subject matter of this Agreement or any Task Order issued in connection with this Agreement; or (b) making any statement to the media on any issue which is in LOUDOUN WATER's judgment likely to cause LOUDOUN WATER or LOUDOUN WATER staff to be viewed as anything other than neutral with respect to the subject matter of this Agreement or any Task Order issued in connection with this Agreement, or cast doubt on the competence or integrity of LOUDOUN WATER or the ENGINEER. Failure to comply with this requirement by the ENGINEER shall constitute a material breach and shall entitle LOUDOUN WATER to terminate this Agreement for default as set forth herein.

13.10 Severability. If any portion of any of this Agreement is held to be illegal, invalid, or unenforceable, such provision shall be fully severable and the remainder of this Agreement shall remain in full force and effect.

13.11 Force Majeure. Neither the ENGINEER nor LOUDOUN WATER shall be responsible for any delay caused by a contingency beyond their control for natural events and/or political and special events including, but not limited to, earthquakes, floods, fire, plague, acts of God, and other natural disasters, terrorism, riots or civil disturbances; war, whether declared or not; strikes (excluding strikes which are specific to the site or the ENGINEER or any of its subcontractors); nuclear or chemical contamination or requirements of governmental agencies other than LOUDOUN WATER.

13.12 Confidentiality. As part of this Agreement LOUDOUN WATER may provide to ENGINEER documents and data files considered confidential. It is the ENGINEER’s responsibility to secure access to these data, all maps, and all products derived thereby, and to treat said documents and data as confidential and may not be copied or distributed without LOUDOUN WATER’s prior written permission.

13.13 Waiver: A party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement.

13.14 Non-Exclusive Agreement: Nothing herein shall establish an exclusive relationship between LOUDOUN WATER and ENGINEER. LOUDOUN WATER may enter into similar agreements with other professionals for the same or different types of services

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contemplated hereunder, and ENGINEER may enter into similar or different agreements with other project owners for the same or different services contemplated hereunder.

ARTICLE 14 – NOTICES 14.01 All communications, notices and disclosures required or permitted by this Agreement shall

be in writing and shall be deemed to have been given at the earlier of the date when actually delivered to the person indicated below or when sent by nationally recognized overnight carrier or certified or registered mail, postage prepaid, return receipt requested and addressed as follows, unless and until either party notifies the other in accordance with this Section of a change of address. All notices shall be effective upon the date of receipt. If to the ENGINEER: If to LOUDOUN WATER: Firm LOUDOUN WATER Mailing Address 44865 Loudoun Water Way City, State Zip Ashburn, Virginia 20146 Attn: NAME Attn.: Thom Lipinski, P.E. Title: Title: Director, Planning and Engineering

ARTICLE 15 – PROGRAM MANAGERS LOUDOUN WATER ENGINEER:

Name: Thomas Lipinski Print Name:

Email: [email protected] E-mail:

15.01 Change in Program Manager. Any change in the assigned ENGINEER’s Program Manager must be approved by LOUDOUN WATER as a written amendment to this Agreement.

ARTICLE 16 – EXHIBITS AND SPECIAL PROVISIONS 16.01 This Agreement is subject to the provisions of the Exhibits listed below, which are attached

to and made a part of the Agreement. 16.02 This Agreement (together with the Exhibits) constitutes the entire agreement between

LOUDOUN WATER and ENGINEER and supersedes all prior written or oral understandings. There are no promises, terms, conditions, or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations, or agreements, written or verbal, between the parties hereto. This Agreement may only be amended, supplemented, modified or cancelled by a duly executed written instrument.

16.03 The terms and conditions set forth in this Agreement apply to each Task Order as if set forth in the Task Order, unless specifically modified. In the event of conflicts between this Agreement and a Task Order, the conflicting provisions of the Task Order shall take precedence for that Task Order. The provisions of this Agreement shall be modified only by a written instrument. Such amendments shall be applicable to all Task Orders issued after the effective date of the amendment if not otherwise set forth in the amendment.

mailto:[email protected]

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16.04 A Task Order, which will be issued with a notice to proceed signed by the project manager, under this Agreement (including any incorporated exhibits or attachments) constitutes the entire agreement between LOUDOUN WATER and ENGINEER with respect to the specific project, and supersedes all prior written or oral understandings, except to the extent that the terms of this Agreement also apply to the Task Order. Such a Task Order may only be amended, supplemented, modified, or canceled by a written instrument duly executed by both parties. Amendments to such a Task Order should be based whenever possible on the format of exhibits to this Agreement.

* * * * * *

IN WITNESS WHEREOF, the parties hereto execute this Agreement.

LOUDOUN WATER Loudoun County Sanitation Authority

ENGINEER:

Authorized Signature:

Authorized Signature:

Print Name: Carla P. Burleson Print Name:

Title: General Manager Title:

Date: Date:

EXHIBITS:

Exhibit Exhibit Title No. of Pages

A: Request for Proposal 17 B: Rate Schedule and Reimbursement Policy 4 C: Sample Form of Task Order 17 D: Task Order Status Report Template 1

Numbered Task Orders as developed during the Agreement period TBD