2022 04 19 City Council

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Owner-Engineer Agreement  OE 125T v. SP 04.01.22 Page 6 of 8 
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ENGINEER shall notify (1) OWNER and (2) appropriate 
governmental officials if ENGINEER  reasonably 
concludes that doing so is required by applicable laws or 
regulations. 
D. B oth parties acknowledge that ENGINEER’s scope 
of services does not include any services related to 
Constituents of Concern.  If an undisclosed Constituent of 
Concern is encountered, or if investigative, remedial action 
or other professional services are necessary with respect to 
disclosed or undisclosed Constituents of Concern, then 
ENGINEER may, at its option and without liability for 
consequential or any other damages, suspend performance 
of services on the portion of the Project affected thereby 
until OWNER:  (1) retains appropriate specialist 
consultants or contractors to identify and, as appropriate, 
abate, remediate, or remove the Constituents of Concern; 
and (2) warrants that the Site is in full compliance with 
applicable laws and regulations. 
E. If the presence at the Site of undisclosed 
Constituents of Concern adversely affects the performance 
of Engineer’s services under this Agreement, then the 
Engineer shall have the option of (1) accepting an equitable 
adjustment in its compensation or in the time of completion, 
or both; or (2) terminating this Agreement for cause. 
F. Owner acknowledges that ENGINEER  is 
performing professional services for OWNER and that 
ENGINEER is not and shall not be required to become an 
"owner" “arranger,” “operator,” “generator,” or 
“transporter” of hazardous substances, as defined in 
CERCLA, as amended, which are or may be encountered 
at or near the Site in connection with Engineer’s activities 
under this Agreement. 
6.11 Allocation of Risks 
A. Indemnification. 
 1. To the fullest extent permitted by law, 
ENGINEER shall indemnify and hold harmless 
OWNER and OWNER’s officers, direc tors, 
members, partners, consultants, and employees  
from and against any and all costs, losses, and 
damages (including but not limited to reasonable 
fees and charges of all professionals, and all court 
costs) to the extent caused by the negligent acts or 
omissions of ENGINEER or ENGINEER’s officers, 
directors, partners, employees, or consultants in the 
performance services under this Agreement.  
 2. To the fullest extent permitted by law, a party’s 
total liability to the other party and anyone claiming 
by, through, or under the other party for any cost, 
loss, or damages caused in part by the negligence of 
the party and in part by the negligence of the other 
party or any other negligent contributor, shall not 
exceed the percentage share that the party’s 
negligence bears to the total negligence of all 
negligent contributors. 
 4. OWNER agrees that Article 6.10 adequately 
defines ENGINEER’S responsibilities toward the 
discovery of a Constituent of Concern at the Project 
site, and ENGINEER has no liability for such 
discovery.  
B. Mutual Waiver.  To the fullest extent permitted by 
law, OWNER and ENGINEER waive consequential 
damages for claims, disputes or other matters in question 
arising out of or relating to this Agreement. Both the 
OWNER and ENGINEER shall require similar waivers of 
consequential damages protecting all the entities or persons 
named herein in all contracts and subcontracts with others 
involved in this project. 
C. Limitation of Liability.  In recognition of the relative 
risk of bene fits of the project to both OWNER  and 
ENGINEER, the risks have been allocated such that 
OWNER agrees, to the fullest extent permitted by law, to 
limit the liability of ENGINEER and it’s consultants to the 
OWNER and to all construction contractors and 
subcontractors on the project for any and all claims 
expenses from any cause or causes, so that the total 
aggregate liability of ENGINEER and it’s consultants to all 
those named shall not exceed two hundred fifty thousand 
dollars ($250,000.00).  Such claims and causes include, but 
are not limited to negligence, professional errors or 
omissions, strict liability, breach of contract or warranty. 
D. Premium Cost.  If, after the construction has begun, 
an error or omission is discovered and the item can still be 
provided in the planned sequence of construction without a 
premium cost to the OWNER; then the OWNER will pay 
for this entire item just as if it had been inc luded in the 
original Contract Documents.  If this error or omission is 
discovered out of sequence with the planned construction 
schedule resulting in a premium cost, then the ENGINEER 
will pay the premium cost to have this item corrected or 
included, while the OWNER will pay the value of the item 
as if it had been included in the original Contract 
Documents.  If such premium cost falls within two percent 
(2%) of the defined construction cost, then such cost shall 
be the responsibility of the OWNER. 
6.12 Successors, Assigns and Beneficiaries .   
A. The OWNER and ENGINEER, respectively, bind 
themselves, their agents, successors, assigns and legal 
representatives to this Agreement.
 
B. Neither the OWNER nor ENGINEER shall assign 
this Agreement without the written consent of the other. 
C. Nothing contained in this Agreement shall create a 
contractual relationship with or a cause of action in favor of 
a third party against either the OWNER or ENGINEER. 
6.13 Miscellaneous Provisions 
A. Notices.  Notices will be in writing, addressed to the 
appropriate party at its address on the signature page and 
given personally, or by registered or certified mail postage 
prepaid, or by a commercial courier service.  All notices 
shall be effective upon the date of receipt. 
B. Survival and Severability .  All express 
representations, waivers, indemnifications, and 
limitations of liability included in this Agreement will 
survive its completion or termination for any reason.   
Should any provisions of this Agreement be determined to 
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