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Engineering Services AGREEMENT BETWEEN CITY OF SALINA AND KONZA NATURAL RESOURCES CONSULTANTS, INC. FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of June R, 1999 ("Effective Date") between the City of Salina ("CITY") and Konza Natural Resources Consultants, Inc. ("KONZA"). CITY intends to determine appropriate measures which may be taken to minimize flood damages to property located within and downstream of the site ("Project"). The site of the Project is the drainage area of approximately 570 acres in Sections 16, 17, 20, and 21, Township 14 South, Range 2 West, above the bridge located approximately 440 feet east of the intersection of Country Club Road and Holmes Road, in Saline County, Kansas ("Drainage Area"). CITY and KONZA in consideration of their mutual covenants as set forth herein agree as follows: ARTICLE 1 - SCOPE OF SERVICES TO BE PROVIDED BY KONZA A. KONZA shall: Carry out the work described below in two Phases to provide engineering services necessary to: define the rate and volume of flooding related to current and projected levels of urban development within the Drainage Area; and develop a plan containing alternative measures which the CITY can apply, and/or cause to be applied, to minimize increased flood damages due to such development. Concept Phase 1. Develop preliminary estimates of flood discharges and depths of flooding at selected points within and downstream of the Drainage Area under current and projected levels of urban development. 2. Supplement existing topographic information as necessary to determine the effective amount of detention storage in existing and potential impoundments within the Drainage Area. 3. Provide a written report to CITY which documents the estimated changes in flood discharges and depths of flooding within and downstream ofthe Drainage Area under current and projected levels of development, recommends and generally locates control measures that KONZA determines are needed to address any increases in flooding, and outlines the design and likely costs of such control measures. Preliminary Design Phase After reviewing the Concept Phase report, CITY may direct KONZA to begin this Phase: 1. Refine the preliminary flood discharges and depths of flooding performed in the Concept Phase to sufficient detail for preliminary design of proposed control measures. Konza Natural Resources Consultants, Inc, - PaRe lol7 Advancing the ethical. innovative, and sustainable development of natural resources 2. Supplement existing topographic information as necessary to perform preliminary design of proposed control measures. 3. Provide preliminary design information and estimated cost to upgrade the existing detention dam located in the SW 1/4, SE 1/4, NE 1/4 Section 17, Township 14 South, Range 2 West, if such an upgrade is determined to be an appropriate measure during the Concept Phase. 4. Provide preliminary design information and cost estimates for new detention facilities and other control measures as determined in the Concept Phase. Strictly for CITY's information, two sites for such detention facilities that have been identified in proposal stage review include a dam to be located in the SE 1/4, SE 1/4, NE 1/4 Section 17, Township 14 South, Range 2 West, and a dam to be located on City property above Crawford St. near the intersection with Seitz Drive. 5. Provide a written report recommending to CITY which alternative control measures ought to be constructed, describing what impact those control measures will likely have on current and future flooding in and downstream of the Drainage Area, describing any alternative control measures analyzed and the reasons for not recommending them, and detailing preliminary design information and cost estimates for the recommended control measures (hereinafter "Services"). ARTICLE 2 - CITY'S RESPONSIBILITIES A. CITY shall: 1. make provisions for KONZA's access.to property as needed to provide Services. 2. provide all criteria and full information as to CITY's requirements for the Project, including design objectives and constraints, performance requirements, any budgetary limitations; and furnish copies of all standard forms, design standards, and construction standards which CITY will require to be included in the plans and specifications. 3. make available to KONZA all existing records, maps, plans and other information possessed by CITY which are relevant to KONZA in the completion of the work under this Agreement. CITY shall be responsible for, and instruct KONZA to rely upon, the accuracy and completeness of all information furnished by CITY pursuant to this Article. 4. examine all alternate solutions, studies, reports, sketches, plans, and other documents presented by KONZA and render in writing decisions pertaining thereto. 5. designate in writing a person to act as CITY's representative with respect to the Services to be performed or furnished by KONZA under this Agreement. Such person shall have complete authority to transmit instructions, receive information, interpret and define CITY's policies and decisions with respect to KONZA's services for the Project. 6. give prompt written notice to KONZA whenever CITY observes or otherwise becomes aware of: (a) any development that affects the Scope of Services or the Times For Rendering Services defined in this Agreement, or (b) any defect or nonconformance in KONZA' s Services. Konza Natural Resources Consultants, Inc. - Page 2 0(7 Advancing the ethical, innovative, and sustainable development of natural resources ARTICLE 3 - TIMES FOR RENDERING SERVICES A. Upon this Agreement becoming effective, KONZA is authorized to begin Services as set forth herein. B. KONZA's services and compensation under this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion. The target date for completion of all work described under the Concept Phase of this Agreement is October 31, 1999. If CITY directs KONZA to undertake the Preliminary Design Phase on or prior to November 30, 1999 the target date for completion of all work described under the Preliminary Design Phase is March 31, 2000. If CITY directs KONZA to undertake the Preliminary Design Phase on some date after November 30, 1999 but prior to the expiration of this contract, the target date for completion of all work under that Phase will be adjusted to provide KONZA a minimum of 120 calender days to complete the work. It is understood that weather or other unforeseen factors beyond KONZA's control could cause delays in completing the Project on schedule. C. This contract will expire on April 30, 2000 unless extended by written modification, however it may be terminated earlier as provided in paragraph D of this Article and in Article 7. If the target date for completion of the Preliminary Design Phase is later than March 31, 2000, as provided for in paragraph B of this Article, the contract will expire 30 calender days after the target date for completion of that Phase of work. Fees earned by KONZA as of the termination date will be paid by the CITY, after which all materials developed by KONZA before the termination date will be furnished to CITY, except as provided in paragraph D of this Article. D. This contract will be automatically terminated by failure of CITY to pay, within 90 days of receiving an invoice for the amount due, fees earned by KONZA, unless a written agreement is made for delayed payment(s). In case of termination due to non-payment of fees, no materials developed after the date of the last payment will be furnished to CITY. E. If CITY fails to give prompt written authorization to proceed with any Phase of services after completion of the immediately preceding Phase, or if KONZA's services are delayed through no fault of KONZA, KONZA may, after giving seven days written notice to CITY, suspend services under this Agreement. ARTICLE 4 - PAYMENTS TO KONZA A. CITY shall pay KONZA a fee for Services performed or furnished under this Agreement as set forth in this Article. The fee shall be the sum of the following amounts: 1. Actual salary costs for Services performed for the Project during the billing period 2. Overhead costs of 1.32 times actual salary costs 3. Profit equal to 15% of the sum of actual salary costs and overhead costs 4. The actual cost to rent a drill rig(s) for geological exploration of possible dam sites and related soil tests B. Fees CITY pays to KONZA under this Agreement shall not exceed $7,000.00 for the Concept Phase and shall not exceed $18,000.00 for the Preliminary Design Phase unless this Agreement is modified in writing. Konza Natural Resources Consultants, Inc. - Page 3 0[7 Advancing the ethical, innovative, and sustainable development of natural resources C. Other Provisions Concerning Payments 1. Invoices will be prepared in accordance with KONZA's standard invoicing practices and will be submitted to CITY by KONZA monthly. 2. Invoices are due and payable within 30 days of receipt. If CITY fails to make any payment due KONZA for services and expenses within 30 days after receipt of KONZA's invoice therefor, the amounts due KONZA will be increased.at the rate of 1.0% per month from said thirtieth day. In addition, KONZA may, after giving seven days written notice to CITY, suspend services under this Agreement until KONZA has been paid in full all amounts due for services, expenses, and other related charges. Payments will be credited first to interest and then to principal. ARTICLE 5 - STANDARDS OF PERFORMANCE A. The standard of care for all professional engineering and related services performed or furnished by KONZA under this Agreement will be the care and skill ordinarily used by members of KONZA's profession practicing under similar circumstances at the same time and in the same locality. KONZA makes no other warranties, express or implied, under this Agreement or otherwise, in connection with KONZA' s services. B. KONZA may employ such KONZA's Consultants as KONZA deems necessary to assist in the performance or furnishing of the services. KONZA shall not be required to employ any consultant unacceptable to KONZA. C. KONZA shall not be required to sign any documents, no matter by whom requested, that would result in KONZA's having to certify, guarantee, or warrant the existence of conditions whose existence KONZA cannot ascertain. CITY agrees not to make resolution of any dispute with KONZA or payment of any amount due to KONZA in any way contingent upon KONZA's signing any such certification. D. KONZA's opinions of probable construction cost are to be made on the basis of KONZA's experience and qualifications. However, KONZA cannot and does not guarantee that proposals, bids, or actual construction cost will not vary from opinions of probable construction cost prepared by KONZA. KONZA assumes no responsibility for the accuracy of opinions of Project costs. E. During the construction of the Project, KONZA shall not supervise, direct, or have control over any contractor engaged by CITY to construct the Project (Contractor hereinafter), nor shall KONZA have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with laws and regulations applicable to Contractor's work. F. KONZA neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the work in accordance with plans and specifications. ARTICLE 6 - USE OF DOCUMENTS A. All data, reports, drawings, plans, specifications, and other deliverables (hereinafter, Documents) are instruments of service in respect to this Project, and KONZA shall retain an ownership and property interest therein (including the right of reuse at the discretion of KONZA) whether or not the Project is completed. Konza Natural Resources Consultants, Inc. - FaKe 4of7 Advancing the ethical, innovative, and sustainable development of natural resources B. CITY may make and retain copies of Documents for information and reference in connection with use on the Project by CITY. Such Documents are not intended or represented to be suitable for reuse by CITY or others on extensions of the Project or on any other project. Any such reuse or modification without written verification or adaptation by KONZA, as appropriate for the specific purpose intended, will be at CITY's sole risk and without liability or legal exposure to KONZA or to KONZA' s Consultants. CITY shall indemnify and hold harmless KONZA and KONZA's Consultants from all claims, damages, losses, and expenses, including attorneys' fees arising out of or resulting therefrom. ARTICLE 7 - TERMINATION A. The obligation to provide further services under this Agreement may be terminated: 1. For cause, a. 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 hereof through no fault of the terminating party. b. By KONZA: 1) upon seven days written notice if KONZA believes that KONZA is being requested by CITY to furnish or perform services contrary to KONZA's responsibilities as a licensed professional; or 2) upon seven days written notice if KONZA's services for the Project are delayed or suspended for more than 90 days for reasons beyond KONZA's control. 3) KONZA shall have no liability to CITY on account of such termination. 2. For convenience, a. By CITY effective upon KONZA's receipt of notice of such termination. ARTICLE 8 - DISPUTE RESOLUTION A. CITY and KONZA agree that mediation shall be the primary method for dispute resolution between the parties to this Agreement, and that all disputes between the parties relating to this Agreement shall be submitted to non-binding mediation, unless the parties mutually agree otherwise. B. CITY and KONZA further agree to include dispute resolution provisions similar to this Article in all agreements with any independent contractors or consultants either retains for the Project. All independent contractors and consultants shall also be required to include similar dispute resolution provisions in all agreements with subcontractors, consultants, suppliers, or fabricators they may retain. ARTICLE 9 - CONTROLLING LAW A. This Agreement is to be governed by the laws of the State of Kansas. Konza Natural Resources Consultants, lnc, - Page 5 of7 Advancing the ethical, innovative, and sustainable development of natural resources ARTICLE 10 - SUCCESSORS, ASSIGNS, AND BENEFICIARIES A. CITY and KONZA each is hereby bound and the partners, successors, executors, administrators and legal representatives of CITY and KONZA (and to the extent permitted by paragraph B of this Article the assigns of CITY and KONZA) are hereby bound to the other party, to this 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 CITY nor KONZA may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or 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. C. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by CITY or KONZA to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. ARTICLE 11 - INDEMNIFICATION A. To the fullest extent permitted by law, KONZA shall indemnify and hold harmless CITY, CITY's officers, directors, partners, and employees from and against any and all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of KONZA or KONZA's officers, directors, partners, employees, and KONZA's Consultants in the performance and furnishing of KONZA's services under this Agreement. B. To the fullest extent permitted by law, CITY shall indemnify and hold harmless KONZA, KONZA's officers, directors, partners, employees, and KONZA's Consultants from and against any and all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of CITY or CITY's officers, directors, partners, employees, and CITY's consultants with respect to this Agreement or the Project. C. To the fullest extent permitted by law, KONZA's total liability to CITY and anyone claiming by, through, or under CITY for any cost, loss, or damages caused in part by the negligence of KONZA and in part by the negligence of CITY or any other negligent entity or individual, shall not exceed the percentage share that KONZA's negligence bears to the total negligence of CITY, KONZA, and all other negligent entities and individuals. ARTICLE 12 - NOTICES A. Any notice required under this Agreement 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. Konza Natural Resources Consultants, Inc - Page 6of7 Advancing the ethical, innovative, and sustainable development of natural resources ARTICLE]3 - SURVIVAL A. All express representations, indemnifications, or limitations of liability included in this Agreement will survive its completion or termination for any reason. ARTICLE 14 - SEVERABILITY A. Any provision or part of the Agreement held to be void or unenforceable under any laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon CITY and KONZA, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. ARTICLE 15 - WAIVER A. Non-enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. ARTICLE 16 - TOTAL AGREEMENT AND MODIFICATION A. This Agreement (consisting of pages 1 to 7 inclusive) constitutes the entire agreement between CITY and KONZA and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. CITY OF SALINA KONZA NATURAL RESOURCES CONSULTANTS, INC. By: ~/VL C.~ Title: Vic..e_ - 0a1or Date Signed: ~L } 1.-1 I q II o ~ By: ~~~ Matt A. Scherer, III President Date Signed: J '-1/7 e- ~ /??,? Address: Address: 2664 Knoll Court Topeka, Kansas 66617-9217 Konza Natural Resources Consultants, Inc. - faKe 70[7 Advancing the ethical. innovative, and sustainable development of natural resources