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HomeMy WebLinkAbout2003-315ORDINANCE NO. 2003- 2/5 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH FREESE AND NICHOLS, INC. FOR ENGINEERING SERVICES PERTAINING TO THE PREPARATION OF A WATER UTILITY VULNERABILITY ASSESSMENT AND A WATER UTILITY EMERGENCY RESPONSE PLAN; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems that it is in the public interest to engage Freese and Nichols, Inc., a Corporation ("F&N), of Fort Worth, Texas, to provide professional engineering services for the City pertaining to the completion of a Water Utility Vulnerability Assessment and a Water Utility Emergency Response Plan, as is required by Federal law; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above -referenced professional consulting services, and that limited City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the City Manager is hereby authorized to execute a "Professional Services Agreement For Professional Engineering Services" with Freese and Nichols, Inc., a Corporation, of Fort Worth, Texas, for professional engineering services pertaining to the completion of a Water Utility Vulnerability Assessment and a Water Utility Emergency Response Plan; in substantially the form of the Professional Services Agreement attached hereto as Exhibit "A," and incorporated herewith by reference. SECTION 2: That the award of this Agreement by the City is on the basis of the continued demonstrated competence, knowledge, and qualifications of F&N and the continued demonstrated ability of F&N to perform the services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. 1 PASSED AND APPROVED this the N day of dog , 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: SAOur Documents\0rdinances\03T&N Engineering PSA-Water Utility Studies-2003.doc 2 STATE OF TEXAS § COUNTY OF DENTON § PROFESSIONAL SERVICES AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES THIS AGREEMENT is made, entered into, and effective as of the 0- day of October, 2003, by and between the City of Denton, Texas, a Texas Municipal Corporation, with its principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereinafter "OWNER"); and FREESE AND NICHOLS, INC., a Corporation, with its offices at 4055 International Plaza, Suite 200, Fort Worth, Texas 76109-4895 (hereinafter "CONSULTANT"); the parties acting herein by and through their respective duly -authorized representatives and officers. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set forth herein are in connection with the following described project (the "Project"): Providing professional engineering services pertaining to the completion of the City of Denton, Texas Water Utility Vulnerability Assessment (utilizing RAM-W) and a Water Utility Emergency Response Plan. These assessments are required by Federal law. Under the H.R. 3448 Bioterrorism Act signed into law in June 2002 (P.L. 107-188) each community water system serving a population of greater than 3,300 is required to conduct an assessment of the vulnerability of its system to intentional acts intended to substantially disrupt the ability of the system to provide a safe and reliable supply of drinking water. In addition, each community water system serving a population greater than 3,300 is required to prepare or revise where necessary, an emergency response plan. As such, a Vulnerability Assessment and an updated Water Utility Emergency Response Plan is needed to plan response to an intentional attack on the public water system. Furthermore, the 78`h Legislature of the State of Texas has recognized the need for such plans, having enacted HB9, which became effective September 1, 2003. This provision, Subchapter H, Chapter 418, Texas Government Code, pertains to confidentiality of certain information relating to risk or vulnerability assessments, such as the type of assessment to be rendered by CONSULTANT herein, among other things. It further pertains to confidentiality of certain information relating to critical infrastructure and for certain information prepared for the United States. Page 1 of 11 ARTICLE H SCOPE OF SERVICES The CONSULTANT shall perform the following Basic Services in a professional manner: A. To perform all those services as are set forth in the CONSULTANT's "Scope of Services and Responsibilities of Owner" to the City of Denton, Texas contained in that certain seven (7) page attachment (Attachment SC) from CONSULTANT to OWNER, which attachment is appended hereto as Exhibit "A" and is incorporated herewith by reference. B. If there is any conflict that arises between the terms of this Agreement and the Attachment SC, Exhibit "A" attached to this Agreement, then the terms and conditions of Exhibit "A" shall control over the terms and conditions of this Agreement. ARTICLE III ADDITIONAL SERVICES Any Additional Services to be performed by CONSULTANT, if authorized by OWNER, which are not included as Basic Services in the above -described Scope of Services, set forth in Article 11 above, shall be later agreed -upon by OWNER and CONSULTANT, who shall determine, in writing, the scope of such Additional Services, the amount of compensation for such additional services, and other essential terms pertaining to the provision of such Additional Services by CONSULTANT. A partial listing of possible Additional Services, are set forth on pages SC-4 and SC-5 of Exhibit "A" which is appended hereto and incorporated by reference herewith. ARTICLE IV PERIOD OF SERVICE The parties hereby agree that in any event, this Agreement shall be effective as of the date of approval of this Agreement by the City Council. Work shall then commence upon the issuance of a notice to proceed to CONSULTANT by the OWNER. This Agreement shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER; or until exhaustion of all of the funds provided for herein; or until September 30, 2004, whichever event shall first occur. This Agreement may be sooner terminated in accordance with the provisions hereof. TIME IS OF THE ESSENCE IN THE PERFORMANCE AND COMPLETION OF THIS AGREEMENT. CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule(s) reasonably established by the OWNER, acting through its Director of Water Utilities or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: 1. "Direct Non -Labor Expense" is defined as that expense [other than "per diem" expense], based upon actual cost plus ten (10%) percent, for any out-of-pocket expense Page 2of11 reasonably incurred by the CONSULTANT related to its performance of this Agreement, for long distance telephone charges, telecopy charges, messenger services, printing and reproduction expenses, out-of-pocket expenses for purchased computer time, prudently incurred travel expenses related to the work on the Project, and similar incidental expenses incurred in connection with the Project. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by CONSULTANT herein, OWNER agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic Services tasks set forth in the Scope of Services as shown in Article II above; as follows: 1. CONSULTANT shall perform its work on this Project on a lump -sum fee basis, based upon the percentage of completion of the Project, plus reimbursement for all reasonably incurred out-of-pocket expenses, billed monthly, or for longer periods of time. CONSULTANT shall bill from the rates and subject to the terms set forth in CONSULTANT's "Probable Cost Estimate" which is contained in Exhibit `B." OWNER shall pay to CONSULTANT for its professional services performed, and for its out -of pocket expenses incurred in the Project, a total lump -sum or turnkey amount of $70,000. 2. Partial payments to the CONSULTANT will be made monthly based on the percent of actual completion of the Basic Services, rendered to and approved by the OWNER through its Director of Water Utilities or his designee. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The OWNER may withhold the final ten (10%) percent of the above lump -sum or turnkey amount until satisfactory completion of the Project by CONSULTANT. 3. Nothing contained in this Article shall require the OWNER to pay for any work that is not submitted, in compliance with the terms of this Agreement. OWNER shall not be required to make any payments to CONSULTANT at any time when CONSULTANT is in default under this Agreement. 4. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the not -to -exceed amount as stated hereinabove, without first having obtained the prior written authorization of the OWNER. CONSULTANT shall not proceed to perform any services to be later provided for under Article III. "Additional Services" without first obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For Additional Services authorized in writing by the OWNER in Article III. hereinabove, CONSULTANT shall be paid based on a to -be -agreed - upon Schedule of Charges. Payments for Additional Services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with Exhibit "B" attached hereto, and Article V.B. hereinabove. Statements for Basic Services and any Additional Services shall be submitted to OWNER no more frequently than once monthly. Page 3 of 11 D. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from and after the said thirtieth (30th) day, and in addition, thereafter, the CONSULTANT may, after giving ten (10) days written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER, for services, expenses and charges. Provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set forth herein, if the OWNER reasonably determines that the CONSULTANT's work is not submitted in accordance with the terms of this Agreement, in accordance with Article V.B. of this Agreement, and OWNER has promptly notified CONSULTANT of that fact in writing. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of CONSULTANT. ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT pursuant to this Agreement are instruments of service and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT shall only issue documents or reports prepared hereunder to the entities specifically designated by OWNER in writing. The CONSULTANT understands and agrees to keep all information supporting, as well as the documents and the report itself, confidential. In the event that a Public Information Request is made, under Texas law, for disclosure of such documents and reports, CONSULTANT agrees to immediately contact OWNER, and agrees to withhold disclosure of said documents, pending action by OWNER's Legal Department.. CONSULTANT shall retain copies of all such documents and reports in a secure and confidential manner for a period of seven (7) years following the date of issuance of the report. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this project and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this Agreement, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. Page 4 of 11 ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including without limitation damages for bodily and personal injury, death, or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, attorneys and employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE X INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Board or any successor agency, that has a rating with A. M. Best Rate Carriers of at least an "A-" or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $1,000,000 for each person and not less than $1,000,000 for each accident and with property damage limits for not less than $100,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements, and Employer's Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance or appropriate Errors & Omissions Insurance with limits of not less than $1,000,000 annual aggregate. E. CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured on all such policies to the extent that is legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation of coverage, deliver copies of any such substitute policies, furnishing at least the same policy limits and coverage, to OWNER. Page 5 of 11 ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties will make efforts to settle any disputes arising under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. However, no arbitration or other form of alternate dispute resolution arising out of, or relating to this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. ARTICLE XII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty (30) days advance written notice to the other party. B. This Agreement may alternatively be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance or other reason(s), and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services upon receipt of the written notice of termination from OWNER, and shall render a final bill for services to the OWNER within twenty (20) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article V. of this Agreement. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and to the new consultant. If applicable, OWNER shall allow CONSULTANT a reasonable time to transition and to turn over the Project to a new consultant. CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its files. ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, or agents, for the accuracy and competency of their work performed pursuant to this Agreement; nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the work prepared by the CONSULTANT, its principals, officers, employees, and agents. Page 6 of 11 ARTICLE XfV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered to; or telecopied to; or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein. To CONSULTANT: Freese and Nichols, Inc. Tina E. Hanson, P.E. 4055 International Plaza, Suite 200 Fort Worth, Texas 76109-4895 Fax: (817) 735-7492 To OWNER: City of Denton, Texas Michael A. Conduff, City Manager 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8596 All notices under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given, or three (3) days after mailing of the notice, whichever event shall first occur. ARTICLE XV ENTIRE AGREEMENT This Agreement consisting of eleven (11) pages and two (2) exhibits thereto, constitute the complete and final expression of the Agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement, and shall not cause the remainder to be invalid or unenforceable. hi such event, the parties shall reform this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended. Page 7 of 11 ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the services required hereunder, CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL A. CONSULTANT represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall immediately inform the OWNER in writing of any conflict of interest or potential conflict of interest that CONSULTANT may discover, or which may arise during the term of this Agreement. B. OWNER requires that CONSULTANT carefully safeguard all documents, data, and information provided by OWNER to CONSULTANT incident to this engagement. CONSULTANT recognizes that such documents; data; and information; involve highly sensitive, competitive issues; in some cases, confidential information; and in some cases proprietary information; and the disclosure of such information by CONSULTANT to any third party, without the express written consent of OWNER, is expressly prohibited by OWNER and would likely cause actual harm, economic loss and detriment to OWNER. Any such unauthorized disclosure of information by CONSULTANT shall constitute an act of default respecting this Agreement. C. CONSULTANT represents to OWNER that it will safeguard OWNER's information and will, upon OWNER'S reasonable request, provide OWNER with CONSULTANT'S policies regarding the confidentiality of studies, such as the vulnerability assessment provided for herein, its procedures for identifying conflicts of interest, and its procedures and safeguards which are in place which would apply to CONSULTANT'S treatment and handling of OWNER'S documents, data, and information during this engagement. C. All services required hereunder will be performed by CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under applicable state and local laws to perform such services. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the OWNER. CONSULTANT shall promptly notify OWNER of any change of its name as well as of any material change in its corporate structure, its location, and/or in its operations. Page 8 of 11 ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXII MISCELLANEOUS A. CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment made by OWNER under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct examinations or audits in compliance with this Article. OWNER shall give CONSULTANT reasonable advance notice of all intended examinations or audits. B. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. C. For purposes of this Agreement, the parties agree that Tina E. Hanson, P.E. ("Hanson") shall serve as the Project Manager of CONSULTANT respecting this engagement. This Agreement has been entered into with the understanding that Hanson shall serve as the CONSULTANT's Project Manager and will be the key person serving the OWNER on this Project. Any proposed changes requested by CONSULTANT, respecting Hanson serving as the Project Manager on the Project, shall be subject to the approval of the OWNER, which approval the OWNER shall not unreasonably withhold. Nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the other services required herein, under its supervision or control. D. CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, and in a sound, economical, efficient, and confidential manner, and in accordance with the provisions hereof. In accomplishing the Project, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. E. The OWNER shall assist and fully cooperate with CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANT to perform professional services under this Agreement. Page 9 of 11 OWNER and CONSULTANT agree that CONSULTANT is entitled to rely upon background information furnished to it by OWNER without the need for further inquiry or investigation into such information. F. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS WHEREOF, the City of Denton, Texas has executed this Agreement in four (4) original counterparts, by and through its duly authorized City Manager; and CONSULTANT has executed this Agreement by and through its duly authorized undersigned officer, on this the day of October, 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: 0115,11I&M CITY OF DENTON, TEXAS A Municipal Corporation L.r..� it ,ui "CONSULTANT" FREESE AND NICHOLS, INC. A Texas Corporation By:, Page 10 of 11 ATTEST: BY: g(u�e4 Secretary S:\Our Documents\Contracts\03\F&N PSA for Water System Vulnerability Assessment 2003.doc Page 11 of 11 EXIIIBIT A SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER This is an exhibit attached to, made a part of and incorporated by reference into the Agreement between CITY OF DENTON (OWNER) and Freese and Nichols, Inc. (FNI) providing for professional engineering services. Under the H.R. 3448 bioterrorism act signed in June 2002 (P.L. 107-188) each community water system serving a population greater than 3,300 is required to conduct an assessment of the vulnerability of its system to intentional acts intended to substantially disrupt the ability of the system to provide a safe and reliable supply of drinking water. In addition, each community water system serving a population greater than 3,300 is required to prepare or revise where necessary, an emergency response plan. As such, a Vulnerability Assessment and an updated Water Utility Emergency Response Plan is needed to plan response to an intentional attack on the public water system. FNI will prepare a Water Utility Vulnerability Assessment utilizing RAM-WsM and a Water. Utility Emergency Response Plan as follows: I. BASIC SERVICES: FNI shall render the following professional services in connection with the development of the Project: A. PROJECT PLANNING Upon execution of this AGREEMENT, FNI shall: Consult with OWNER to: (a) review the scope of services, (b) verify OWNER's requirements for the, Project, (c) define purpose, mission, goals, issues, and objectives of the Project, (d) review utility, system maps, (e) discuss computerized monitoring and control, (f) discuss current utility security and emergency response planning, (g) discuss current utility emergency response planning, (h) discuss historical/existing data related to utility threats, vandalism, theft, and emergency response incidents, and (i) identify critical customers. Review current utility security survey and emergency response plan, if available. The information, assessments and plans developed herein as part of the Project, shall be held confidential and its integrity protected through appropriate information protection strategies and protocols. Develop document and file (electronic and paper file) security and control plan and protocols. Implement plan and protocols with OWNER's personnel and FNI. B. DATA DEVELOPMENT Obtain utility system maps, studies, and facility construction plans from OWNER. Develop utility system schematic and document utility operation information. 2. Obtain available information such as City and utility organizational structure, emergency response organizational structure and incident command system; interlocal agreements and contracts for emergency services; current City and utility emergency communication system; and other resources for emergency response. Conduct Planning Workshop with OWNER's staff to verify utility system mission, prioritize facilities, identify and prioritize undesirable consequences of system malfunction, and identify design basis SC-1 FNI rn5wi OWNER threat. A total of one (1) — 6 hour maximum planning workshop is budgeted. Additional workshops can be conducted. Based on the discussion and information obtained from the OWNER'S staff; a Identify important mission/functions of the utility system. b Identify acceptable level of performance (pressure, capacityf service area, quality, and critical customers). c Identify undesirable consequences (such as economic loss, duration of loss, population impacted, loss of fire protection, and environmental) that could affect the missions/functions. Prioritize consequences. d Review system interrelationships and interdependencies (power/electrical, SCADA, chemical delivery, manpower). e Determine and prioritize the critical facilities that need to be protected to minimize the impacts of the undesirable consequences based on capacity, population served, critical customers, water pressure, drinking water quality, and receiving stream water quality. f Identify malevolent acts that could reasonably cause the undesirable consequences such as: (1) Loss of critical function and/or major service disruption, (2) Intentional attack on public safety via utility assets, contamination of the water supply, and chemical releases or chemical theft. 4. Select and characterize up to three design basis threats such as insider threat, outsider threat, and cyber threat. The three design basis threats shall be based on available information from local law enforcement, the Environmental Protection Agency, and the Federal Bureau of Investigation. 5. Develop draft facility prioritization and draft consequence criteria. 6. Conduct a systematic site characterization of the water system by conducting up two site visits with' OWNER's personnel to the OWNER'S critical facilities. A total of twelve (12) hours plus travel time is budgeted for site characterizations. Additional site characterizations can be conducted if needed as an additional service. All facilities that will be characterized shall under the jurisdiction of the City of Denton. Document site visits with digital photos. Collect performance data at each site (when applicable) on: a Important facilities, processes, and assets. Develop site plans and functional schematics for each site. Identify equipment capacities. b Neighborhood character and adjacent facilities. c Personnel assignments and personnel hours. d System interrelationships and interdependencies (power/electrical, SCADA, chemical delivery, manpower). e Main transmission piping at the facility being investigated. Identify system redundancies and primary valving locations for system isolation. Transmission piping of the distribution system is not included. f Identify current security and monitoring system for chemical feed system, storage and handling if applicable. g Power supply and communications system. h Physical protection and security system features of deterrence, detection, delay, and response. FNI_w,crr SC-2 OWNEB�]/I i Security policies and procedures and compliance with same. j Entry control for visitors, deliveries, contractors, and vendors and quantity of same. k Response time for local law enforcement and emergency services. 1 Construction site security and temporary water metering procedures. in System monitoring, testing of chemicals, real time monitoring. Conduct and document systematic characterization of the Supervisory Control and Data Acquisition (SCADA) system by identifying cyber protection features if applicable. a Develop SCADA system architecture diagram based on information provided by OWNER. Identify network connections. b The review will include a preliminary investigation of the use of firewalls, proxy servers and other security or intrusion detection devices used to prevent unauthorized access to equipment and data. c Hackers and unauthorized persons can disrupt utility department operations. Several areas will be investigated to determine exposure. A port scan can be conducted to determine data routes available to intruders, if needed. The use of routable and non- routable Internet protocol (IP) addresses will be studied to identify exposed systems. The level of security patches, encryption schemes and security logging will be investigated. d Computer information access will be reviewed, including password policies, file and folder permissions, user/group privileges and equipment/data access. e Identify physical protection features such as protection of physical cabling, network equipment protection, PC protection, and SCADA equipment protection. C. WATER SYSTEM VULNERABILITY ASSESSMENT 1. Utilizing up to six critical facilities and up to three design basis threats, conduct vulnerability assessment. Selection will be based on the available information and the OWNER's input. 2. Project how the malevolent acts might be conducted (adversary strategy) such as system contamination (chemical, biological, and radiological), physical damage, cyber attack on the SCADA or other process control systems, or interdependency disruptions (power/electrical, chemical delivery, and transportation systems). 3. Based on available information from the Environmental Protection Agency and the Federal Bureau of Investigation, assess the likelihood (qualitative probability i.e. high, medium, or low) of each design basis threat (terrorist, insider, former employee, determined vandal, casual vandal). 4. Identify critical system assets at each critical facility. Approximate the consequences of losing each critical asset and potential ways to access critical assets. Prioritize critical assets based on relative consequences. 5. Evaluate physical and operational protection system effectiveness at each critical facility. Estimate relative system effectiveness. 6. Develop matrix and assign relative/qualitative values to: likelihood of attack (if data is available), degree of vulnerability (effectiveness of security system), and consequences for each critical asset for each design basis threat. 7. Define risk for each critical asset based on results of matrix (risk = probability x vulnerability x consequence). 8. Summarize the selected most critical assets (targets) in the water system, summarize interrelationships within other assets in the system, summarize the consequences of malevolent acts that could be FNI SC-3 OWNEI ME directed against them, and evaluate effectiveness of both existing and recommended protection systems. Provide recommendations for system improvements. Prepare an interim report outlining recommendations. 9. Conduct an interim progress meeting with OWNER's staff to discuss contents the results of the vulnerability assessment and to discuss options for system improvements. A total of one (1) interim progress meeting is budgeted. Additional meetings, if needed, will be billed as an additional service. In particular, surveillance and distribution system monitoring equipment options will be discussed in detail. 10. Prepare an opinion of probable costs for system improvements. Based on risk and cost, prioritize system improvements. 11. Prepare final draft of report outlining prioritized plan for security upgrades, modifications of operational procedures, and/or policy changes to mitigate identified risks to critical assets. Incorporate OWNER'S comments. 12. Compilation of information. The information, assessments and plans developed herein as part of the Project, shall be held confidential and its integrity protected through appropriate information protection strategies and protocols developed as part of this Project. No report will be submitted to the Environmental Protection Agency or any other governmental agency without proper document confidentiality protection provisions. 13. Prepare and fumish up to five (5) copies of draft vulnerability assessment summary report. Incorporate OWNER's comments. Submit summary report to the Environmental Protection Agency. Submit certification to the Environmental Protection Agency that the OWNER has conducted a vulnerability assessment. 14. Submit five (5) copies of final vulnerability assessment report. D. EMERGENCY RESPONSE PLAN DEVELOPMENT 1. Based on vulnerability assessment, identify up to four (4) utility emergency incidents for development; of incident specific plans such as intruder detection, SCADA system malfunction, power outages, treated water contamination, and physical damage to critical assets. 2. Identify utility related assistance available from the Texas Commission on Environmental Quality (TCEQ), the Environmental Protection Agency (EPA), and County. 3. Prepare up to four (4) incident specific emergency response plans. 4. Prepare and furnish up to five (5) copies of the Draft Emergency Response Plan. 5. Incorporate review comments and furnish up to five (5) copies of the Water Utility Emergency Response Plan. 6. Coordinate plan development with the City's representative to the Local Emergency Planning Committee (LEPC). 7. Submit certification to the Environmental Protection Agency that the City has completed the emergency response plan. FNI rvc; SC-4 OWNIg* ARTICLE II ADDITIONAL SERVICES: Additional Services to be performed by FNI, if authorized by OWNER, which are not included in the above described basic services, are described as follows: A. GIS mapping services or assistance with these services. B. Making revisions to drawings, specifications or other documents when such revisions are 1) not consistent with approvals or instructions previously given by OWNER or 2) due to other causes not solely within the control of FNI. C. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. D. Preparing data and reports for assistance to OWNER in preparation for hearings before regulatory agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and preparations therefore before any regulatory agency, court, arbitration panel or mediator. E. Assisting OWNER in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and/or administrative proceedings in the defense or prosecution of claims disputes with Contractor(s). F. Assisting OWNER in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this AGREEMENT. Such services, if any, shall be famished by FNI on a fee basis negotiated by the respective parties outside of and in addition to this AGREEMENT. G. Design, contract modifications, studies or analysis required to comply with local, State, Federal or other regulatory agencies that become effective after the date of this agreement. H. Visits to the site in excess of the number of trips included in Article I for periodic site visits, coordination meetings, or contract completion activities. I. Providing basic or additional services on an accelerated time schedule. The scope of this service include cost for overtime wages of employees and consultants, inefficiencies in work sequence and plotting or reproduction costs directly attributable to an accelerated time schedule directed by the OWNER. ARTICLE III TLVIE OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services in accordance with the following schedule: • Project coordination/kickoff meeting, planning workshop, design basis threat selection, and site visits by October 31, 2003. • Interim vulnerability assessment report for staff review and progress meeting by November 30, 2003. • Submit final vulnerability assessment report to the OWNER and vulnerability assessment certification and summary report to the Environmental Protection Agency by December 31, 2003. • LEPC coordination meeting by January 31, 2004. • Draft incident specific response plans by February 29, 2004. • Draft emergency response plan by March 31, 2004. • Final emergency,response plan by May 31, 2004. SC-5 FNI /�Gr�i OWNE� • Submit emergency operations plan certification to the Environmental Protection Agency and the final Emergency Operations Plan by June 30, 2004. If FNI's services are delayed through no fault of FNI, FNI shall be entitled to adjust contract schedule consistent with the number of days of delay. These delays may include but are not limited to delays in OWNER or regulatory reviews, delays on the flow of information to be provided to FNI, governmental approvals, etc. These delays may result in an adjustment to compensation as outlined on the face of this AGREEMENT and in Attachment CO. ARTICLE IV RESPONSIBILITIES OF OWNER: OWNER shall perform the following in a timely manner so as not to delay the services of FNI: A. All OWNER representatives or designated personnel involved in this evaluation and in utilizing the Risk Assessment Methodology for Water (RAM-WSM), developed by SANDIA (operator of Sandia National Laboratories under Contract Number DE-AC04-94AL85000 for the U.S. Department of Energy) and pursuant to the American Water Works Association's (AW WA) obligation to SANDIA and FNI's obligation to AW WA, must sign a "NON DISCLOSURE AGREEMENT". This is necessary for FNI to conduct the assessment. B. Designate in writing a person to act as OWNER's representative with respect to the services to be rendered under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive information, interpret and define OWNER's policies and decisions with respect to FNI's services for the Project. C. Provide all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the drawings and specifications. D. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. E. Arrange for access to and make all provisions for FNI to enter upon public and private property as required for FNI to perform services under this AGREEMENT. F. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as OWNER deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of FNI. G. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. H. Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER may require or FNI may reasonably request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishing and performing the work. FNI 22 SC-6 OWNE I. Give prompt written notice to FNI whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of FNI's services. J. Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of this AGREEMENT or other services as required. K. Bear all costs incident to compliance with the requirements of this Article IV. ARTICLE V DESIGNATED REPRESENTATIVES: FNI and OWNER designate the following representatives: Owner's Designated Representative Owner's Accounting Representative - FNI's Project Manager - FNI's Accounting Representative Tim Fisher, P.E. City of Denton 901-A Texas Street Denton, Texas 76109-4895 Phone: 940-349-7190 Fax: 940-349-7334 E-mail: tim.fisherncityofdenton.com Annie Jackson City of Denton 901-A Texas Street Denton, Texas 76109-4895 Phone: 940-349-8463 Fax: 940-349-7334 E-mail: annie.jackson(iilcitvofdenton.com Tina E. Hanson, P.E. 4055 International Plaza, Suite 200 Fort Worth, Texas 76109-4895 Phone: 817-735-7349 Fax: 817-735-7492, E-mail: teh@freese.com Jana V. Collier 4055 International Plaza, Suite 200 Fort Worth, Texas 76109-4895 Phone: 817-735-7354 Fax: 817-735-7496 E-mail: jvc@freese.com FNI N/6r--D SC-7 OWNE/� EXHIBIT B COMPENSATION Compensation to Freese and Nichols shall be based on the following Schedule of Charges The total fee for Basic Services in Attachment SC shall he performed for the lump sum Ice of SeventyThousand Dollars ($70,000). If FNI sees the Scope of Services changing so that Additional Services are needed, including but not limited to those services described as Additional Services in Attachment SC, FNI will notify OWNER for OWNER's approval before proceeding. Additional Services shall be computed base on the Schedule of Charges. Schedule of Chomes POSITION MIN MAX PRINCIPAL 188.90 266.64 SENIOR CONSULTANT 154.46 271.57 MANAGER -LOCAL OFFICE 139.72 174.64 GROUP MANAGER 160.55 205.81 SR DISCIPLINE LEADER 177.04 198.92 DISCIPLINE LEADER 87.45 167.96 PROGRAM MANAGER II 110.57 161.29 PROGRAM ADMINISTRATOR - 10B.73 135.91 ENGINEER VIII 196.59 216.81 ENGINEER VII 151.33 190.53 ENGINEER VI 105.40 184.10 ENGINEER V 109.82 146.33 ENGINEER IV 94.72 117.24 ENGINEER INTERN III B6.43 11)&53 ENGINEER INTERN II 79.70 94.68 ENGINEER INTERN 1 74.36 87.22 ELECTRICAL ENGINEER V 118.87 146.08 ELECTRICAL ENGINEER IV 123.01 132.23 ELECTRICAL ENGINEER INTERN 111 90.20 95.10 MECHANICAL ENGINEER A 148.41 184.10 MECHANICAL ENGINEER IV 102.99 112.28 SENIOR RESIDENT REPRESENTATIVE 99.93 127.95 CONSTRUCTION CONTRACT ADMIN 111 85.82 157.54 CONSTRUCTION CONTRACT ADMIN 11 76.06 112.85 CONSTRUCTION CONTRACT ADMIN 1 03.21 119.60 SR DESIGNER 102.53 12B.16 DESIGNER 11 101.49 123.20 DESIGNER 1 90.98 111.28 SENIOR ENGINEERING TECHNICIAN 89.42 111.78 ENGINEERING TECHNICIAN 70.24 96.28 TECHNICIAN 11 64.19 82.36 TECHNICIAN 55.96 8340 DRAFTER 44.B8 5776 GIS ADMINISTRATOR 103.56 -129.45 GIS ANALYST II %.as 71.22 DOCUMENT CONTROL CLERK 47.52 59.40 ENVIRONMENTAL SCIENTIST VII 115.73 144.66 ENVIRONMENTAL SCIENTIST VI 88.08 110.10 ENVIRONMENTAL SCIENTIST IV 70.77 88.46 ENVIRONMENTAL SCIENTIST III 63.31 95.25 ENVIRONMENTAL SCIENTIST II 64.33 78.11 ENVIRONMENTAL SCIENTIST I 47.67 59.58 ARCHITECT VII 138.60 173.25 ARCHITECT V 109.14 138.59 LANDSCAPE ARCHITECT V 107.13 133.91 ARCHITECT INTERN III 93.13 116.42 ARCHITECT INTERN II 67.83 8946 ARCHITECT INTERN I 57.60 74.51 INTERIOR DESIGNER 111 60.26 75.33 HYDROLOGIST A 99.16 123.95 HYDROLOGIST V 91.19 113.99 HYDROLOGIST IV 78.54 98.18 HYDROLOGIST II 70.58 61.04 GEOTECHNICAL ENGINEER VI 128.35 160.44 SENIOR GEOLOGIST 85.68 107.10 PUBLIC INVOLVEMENT COORDINATOR 76.36 84.97 WEB SERVICES ADMINISTRATOR 75.54 94.43 WORD PROCESSINGSECRETARIAL 50.69 58A2 OPERATIONS ANALYST 84.90 106.96 CONTRACT ADMINISTRATOR 76.23 952E INFORMATION SERVICES CLERK 37.03 47.16 co -OP 25.50 55.34 The ranges and Individual salaries will be adjusted annually RATES FOR INHOUSE SERVICES Compurerand CAD Calcomp Plotter Print Shop PC CAD Sle,an, $10.00 per hour Bond $2.w per plot aluelines $0.08 per square but PC Stations - $8.00 per hour Color $3.50 per plot Offset and Xerox Copies $0.07 per single side copy VAX Computer $20.00 per hour Vellum- $4.00 per plot Offset and Xerox Copies $0.14 per rouble side copy Mylar $10.o0 per plot GBC Sinding(Reg. Cover) $2.00 per book GBC Binding(Emboss. Cover) $4.00 per book Te0na Apparatus Tape Binding(Reg. Cover) $1.75 per book Density Motor - $350.60 permonth Tape Binding(Emboss. Cover) $375 per book Gas Detection $10.00 per teat OTHER DIRECT EXPENSES Other direct expenses are reimbursed at actual cost times a multiplier of 1.10. They include outside printing and reproduction expense, communication expense, travel, transportation and subsistence away from Fort Worth and other miscellaneous expenses directly related to the work, including costs of laboratory analysis, tests and other work required to be done by independent persons LS:3.4A 0331-03 FNI _M6 OWNER NONDISCLOSURE AGREEMENT In as much as Freese and Nichols is obligated not to disclose information outside of our Agreement for Professional Services with the City of Denton. City of Denton shall not disclose information subject to the applicable areas of the attached Nondisclosure Agreement. /D -U Date • le-0q-03 Date R:\Contract\2003\nondisclosum.doc .., 07-08-?002 10:53 Frames eve. American Water Works Association T-686 P.005/012 F-230 a The Authoritative Resource for Sofa Drinking Water'u NONDISCLOSURE AGREEMENT THIS AGREEMENT is between the American Water Works Association, incorporated (AWWA) with principle offices located in Denver, Colorado as a licensee of the Risk assessment Methodology for Water (RAM-WsM) developed by SANDIA (operator of Sandie National Laboratories under Contract Number DE-AC04-94ALuoo0 for the U. S. Department of Energy), and pursuant to AWWA's obligation to SANDIA under License number 02-001171 and Fr,,ze IUr 6h e 5, ToG. (COMPANY), having an office for the transaction of business at L//5.G'S' r�;�X� J PIA7 A .<,-4--9- I bM. f ori'War--tk rTX 76/D9 — WHEREAS, it is necessary and desirable for COMPANY to have access to certain of SANDIA's Information which SANDIA considers Proprietary Information (Information) tied described as: Risk Assessment Methodology for Water (RAM-WsM) developed by SANDIA and the AW WA Research Foundation. The sole purpose (Purpose) of this exchange of Information is to permit the COMPANY to employ the methodology in the process of conducting a risk assessment of Public Water Systems, pursuant to the following terms and conditions. THEREFORE, COMPANY agrees: COMPANY shall protect Sandia. Information which is either: a, disclosed in writing or other tangible form and plainly marked as SANDIA's Information; b. Disclosed in another manner and identified as proprietary at the time of disclosure, and summarized and designated proprietary in a written memorandum delivered to Company with in thirty (30) days of the disclosure. 2: COMPANY shall: r, a. Disclose Information only in the process of fulfilling the aforesaid Purpose and only after the execution of a non -disclosure agreement meeting requirements of this agreement with theparticipating water system. b. Use such Information only to the extent necessary for the aforesaid Purpose. c, Limit access to Information to such of its employees end contractors reasonably requiring same for the aforesaid Purpose and who are obligated to treat the same as confidential and in the same manner and to the equivalent extent as provided herein with regard to confidentiality; nonuse and nondisclosure. d. Not remove the proprietary marking from any of SANDIA's Information. e. Take all steps necessary to protect the information from unauthorized use, reproduction, and disclosure, and to protect the Information at least to the same extent it would use to protect its own most valuable and proprietary Information. Received 07-08-02 11:48am From- To-Ml HOTEL 50UTHPARK Page 05 07-08-2002 10:53 Froa- T-686 P..006/012 F-230 u 3. The nondisclosure obligation hereunder shall nor apply to any Information that: a. Is or becomes part of the public domain through no fault of COMPANY; b. Was already known to COMPANY prior to receipt from SANDIA; c. Is lawfully disclosed to COMPANY by a thud party who is not under any obligation of confidentiality to SANDIA with respect to such Information. d.. Is at any time developed by COMPANY independently without the use of SANDIA's Information. 4. No license to COMPANY, under any patent, trademark, copyright, mask work, or any other intellectual property right of SANDIA. or AW WA, is either granted or implied by the conveying of Information to COMPANY. None of the Information that may be disclosed by SANDIA or AW WA to COMPANY shall constitute any representation, warranty, assurance, guarantee or inducement by SANDIA or AW WA to COMPANY of any kind whatsoever other than as set Borth herein to accomplish the purpose of this AgreemenL s� S. Any Information that is or will be provided by SANDIA or AW WA to COMPANY under this Agreement is provided "as is" with no express or implied warranties whatsoever, including the implied warranties of merchantability and fitness for a particular purpose. SANDIA and AW WA shall have no liability whatsoever for direct, indircor. or consequential damages, which arise out of COMPANY's use of the Information provided by SANDIA and AWWA to COMPANY. 6. Neither this Agreement nor the disclosure or receipt of Information shall constitute or imply any promise or intention to make any purchase of products or services by either party, or any commitment by either party with respect to the present or future marketing of any product or service. 7. All Information shall remain SANDIA's property and shall be returned to SANDIA upon written request or to AW WA upon COMPANY's determination that it no longer has it need for such Information. I S. Father parry may uponprior written notice to the other party cease to provide and/or receive any further disclosures of Information from the other party. 9. The term of this Agreement, which is the actual length of time during which Information may be disclosed, shall expire 5 yearsTrom the date of acceptance of this Agreement by COMPANY and SANDIA, whichever is the last to accept this Agreement. 10, The obligations of this Agreement with respect to confidentiality, nonuse and nondisclosure shall expire five (5) years from the date of expiration of this Agreement. 11, This Agreement shall be made under, and shall be gdvenred by and construed in accordance with the laws of the State of New Mexico, excluding its choice of law provisions. 12, COMPANY agrees not to export Information without both SANDIA's written approval and a proper export license. Racelved 01-08-02 II+49am From- To-OIt41 HOTEL SOUTHPARK Pace U ee 07-08-2002 10:54 Fram- T-686 P.007/012 F-230 U 13. All notices and/or correspondence hereunder, shall be mailed, faxed or hand -delivered and addressed as follows: for AW WA: Paula. M=Rwaine, AW WA, 6666 W. Quincy Avenue, Denver, Colorado, 802Q3�5j,� �Ph�o�ne: 303-347-6139, Fax: 303-7948915, e-mail: - pmocilwaine©awwa.org. For SANM : Jeffrey Danncels, Org. 5862, MS 0789, Sandia Netional Laboratories, PO Box 5800, Albuquerque, New Mexico 87185-0789, Phone: 505-284-3897, Fax: 505-8445S69, e-mail: ijd nn gandia oov. For COMPANY: This Agreement states the entire agreement between the parties superseding all prior agreements. , If any part is held invalid or unenforceable, such portion is strictly without effect on the remainder of the agreement. IN WITNESS WHEREOF, the authorized representatives of the parties have executed this Agreement as set forth below. AMERICAN WATER WORKS ASSOCIATION: 6666 West Quincy Avenue , Denver, CO 5 By: Name: Title: p SOBLICENSEE: [company name and address]/ �r•r�5/G�� iJ �G�io �S/./ �. �a�G�.Yc.SS �s��. By:�c-- Name: �n / [:,- . /Thin. Sn Title: ��z Cr%7�^ 9�8 t- Ranived 07-08-02 11:49am Fram- To-OIMI HOTEL SOUTHPARK Pala 07 07-08-2002 10;54 From- Aa American Water Works Association T-636 P.003/012 F-230 The Authoritative Resource for Safe Drinking Water'" SUBLICENSE AGREEMENT THIS SUBLICENSE AGREEMENT, is between American Water Works Association ("AWWA% and the person or entity identified in the signature line below ("Sublicensee") dated as of June 11, 2002 (the "Effective Date'). 11 RECITALS A. AWWA and Sandia Corporation ("Sandia") are parties to that certain Restricted Commercial License Agreement dated June 10, 2002 (the 'Master Agreement"), whereby (i) Sandiaprovided training to AWWA in the performance of vulnerability assessment methodologies known as Risk Assessment Methodology for Water Utilities (as described In more detail on Exhibit_A hereto, the "Sandia Copyrighr) and Vulnerability Assessment Methodology for American Water Works Association Research Foundation, which Sandia licensed from American Water Works Association Research Foundation (as described in more detail on ExhibitA hereto, the'AWWA.Research Foundation Copyright" and together with. the Sandia Copyright and including derivative works of both copyrights created by AWWA, the "Licensed Copyrights')); and (If) Sandia granted a license to AWWA to use the Licensed Copyrights and to create derivative works thereof. B. pursuant to the Master Agreement, AWWA was granted the right to extend the right to use the Licensed Copyrights to third parties who attend a training workshop conducted by AWWA (each a 'Workshop"). C. AWWA and Sublicensee desire to set forth the terms and conditions on which AWWA Will grant to Sublicensee the right to use the Licensed Copyrights D. The execution of this Agreement Indicates that Licensee has successfully completed a Workshop and is qualified to use and apply the Licensed Copyrights to conduct risk assessments for water/waste, subject to the terms herein and subject to the nondisclosure statement/agreement between AWWA and Sublicensee. AGREEMENT THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows; t. Sublicense. AWWA grants Sublicensee the non-exclusive, non -transferable, non- sublicengeable, restricted right, for the term set forth in Section 2 hereof, to use and evaluate the Licensed Copyrights, solely for the purpose of conducting vulnerability assessments for domestic United States water utilities and other water utilities approved in advance by AWWA in writing Upon expiration 446276 v2 Oft Received 07-08-02 11;dgam From- To-OlMl HOTEL SOUTHPARK Page 08. 07-08-2002 10:55 Frmg- T-686 P.009/012 F-230 or earlier termination of the term applicable with respect to the Licensed Copyrights, Sublicensee shall promptly return all such Licensed Copyrights, and certify in writing to AWWA that Sublicensee has not retained any portion of the Licensed Copyrights. 2. Tenn and Termination. The term of ON Agreement shall commence on the date first written above and shall expire an the earlier of (1) the date on which Me Master Agreement is terminated, or (it) the date an which this Agreement Is terminated in accordance with the terms hereof. AWWA may terminate this Agreement at any time In the event of any breach by Sublicensee. 3. Restrictions: Access. Sublicensee shall not copy, reproduce, alter, or in any manner modify the Licensed Copyrights, except with AWWA's prior written authorization Sublicensee shall not disclose, publish, sell, transfer, distribute, sublicense, lease, share, assign or otherwise reveal the Licensed Copyrights to any person other than bona ride water utility essential personnel participating in Sublicensee's vulnerability assessment, except with AWWA's prior written authorization. AWWA shall have the right to inspect and evaluate during normal business hours SuNicerisse's operation and use of the Licensed Copyrights. a 4. Owne ,.rship. Sublicensee agrees and acknowledges .that Sandia is the owner of that Sandia Copyright and that AWWA Research Foundation is the owner of the AWWA Research Foundation Copyright (for purposes of this Section 4 and Sections 5 and g, Sandia and AWWA Research Foundation shall tie the "Licensors") including all Intellectual property rights thereto. -Nothing stated herein shall be deemed to grant, transfer, assign or sell to Sublicensee any right, title, interest or ownership of the Licensed. Copyrights, all of which Is hereby expressly reserved by AWWA. 5. Disclaimer and Limitation. ACKNOWLEDGES THAT AWWA AND THE LICENSORS ARE PROVIDING THE LICENSED COPYRIGHTS TO SUBLICENSEE "AS IS". AWWA AND THq LICENSORS MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT T THE LICENSED COPYRIGHTS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, EFFECTIVENESS; COMPLETENESS, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, AWWA AND THE LICENSORS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON -INFRINGEMENT. AWWA AND THE LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE THEREOF, OR FOR ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, INCLUDING WITHOUT LIMITATION, AMOUNTS REPRESENTING LOSS, OF REVENUES OR PROFITS, LOSS OFISUSINESS OR CONTRACTS, PERSONAL INJURY, PRODUCT LIABILITY, PROPERTY DAMAGE OR INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF SUBLICENSEE'S USE, POSSESSION OR EVALUATION OF THE LICENSED COPYRIGHTS OR FROM ANY DEFECT THEREIN. SUBLICENSE IS EXPRESSLY PROHIBITED FROM REPRESENTING THAT ANY VULNERABILITY ASSESSMENT CONDUCTED BY OR FOR SUBLICENSEE IS ENDORSED BY AWWA OR LICENSORS IN ANY MANNER WHATSOEVER. G. Indemnity. Sublicensee agrees to indemnify, hold harmless and defend AWWA and the Licensors from and against any and all claims, liabilities, losses and expenses, including reasonable attorneys' fees and costs, arising directly or indirectly out of. Suhllcansee's misuse of the Licensed Copyrights (including negligent or intentional misuse or omissian) or from Sublicensee's breach of this Agreement. 7. Consideration. In consideration of Sublicensee's attendance at a Workshop and the grant of the license set forth herein, Sublicensee has paid AWWA$1,000. a. Governina Law. This Agreement shall be construed in accordance with Colorado law under the sale jurisdiction (which the parties hereby submit to) of the applicable state and federal courts of Colorado. -2- ft Received 07-00-02 II.-.49an From- To-OSf1I HOTEL SOUTHPARR Page 09 07-08-2002 10:55 From- T-fi9fi P.010/012 F-230 9. Remedies. Sublicensee acknowledges and agrees that the provisions of this Agreement are a reasonable and necessary protection of the immediate and substantial interests of AWWA and the Licensors, and that any violation of these restrictions Would cause substantial and irreparable injury to AWWA and the Licensors. In the event of a breach or threatened breach by Sublicensee of any provision of this Agreement, AWWA and/or the Licensors, or either of them, shall be entitled to apply to any court of competent jurisdiction for a temporary and/or permanent injunction restraining Sublicensee from such breach or threatened breach; provided, however, that nothing herein contained shall be construed to preclude AWWA and/or the Licensors, or either of them, from pursiiing any other available remedy for such breach or threatened breach in addition to, or in Ileu of, such injunctive relief. ft 10. Entire Agreement. This Agreement together with its Exhibits constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all prior negotiations, promises, commitments, undertakings and agreements of the parties relating thereto. 11. Notices. All notices required or permitted under this Agreement shall be in writing and 'transmitted either via overnight courier, electronic mail, hand deliver or certified registered mail, postage prepaid and return receipt requested to the parties at their respective addresses set forth on the signature page hereto. 12. Modifications and validity of Signature. This Agreement may be modified only in writing and if signed by duly authorized representatives of the parties. 13. Attorneys' Fees and Costs.. In the event that any action or proceeding is brought by either party for the enforcement or interpretation of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the non -prevailing party, in addition tp any other remedy obtained, the prevailing parry's reasonable attomeys' fees and costs incurred in connection therewith. 14. Aoolicable Provisions of Master Agreement. In addition to the terms hereof, Sublicensee agrees to be bound as "LICENSEE" to the provisions of the Master Agreement set forth on Exhibit S hereto. 15. Assignment: Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns_ Sublicensee may not assign Sublicensee's rights or obligations under this Agreement without the prior written consent of AWWA. Any attempted assignment by Sublicensee in violation of this Section 15 shall be void. is. Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach of that provision or any other provision hereof. 17. Survival. The patties agree that the following Sections of this Agreement shall survive, and remain in full force and effect following, the expiration of the term of this Agreement or any other termination of this Agreement: 3, 4, 5, 5, 8, 9, 10, 11. 13. 14, 15 and 16 0e-3- Received 07-08-02 11:49am From- To-001 HOTEL SOUTHPARN Pa$e 10 07-08-2002 10:56 From- T-686 P.011/012 F-230 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. AMERICAN WATERWORKS ASSOCIATION: SUBLICENSEE: 6666 West Quincy Avenue (company name and address] Denver, Cq aa235 Name: n� 76/6 9 Title: G'(al"V'5111 . G"1` � Title: Ynoie ' �2n rr Received 07-09-02 11:49am ft 0 -4- From- To -OMIT HOTEL SOUTHPARK Pala I 07-08-2002 10:56 From- T-686 P.012/012 F-210 EXHIBIT A LICENSED COPYRIGHTS SANDIA COPYRIGHT SCR# 593: Risk Assessment Methodology for Water (RAM-W) presents a security risk assessment methodology for water utilities. Major elements Include: Planning, Threat Assessment, Facility Characterization, System Security Effectiveness, Risk Management AWWARF COPYRIGHT "Vulnerability Assessment Methodology for American Water Works Association Research Foundation' (2001, AWWARF], Licensed to Sandia Corporation by the AWWA Research Foundation in Agreement #02-100037 DERIVATIVE WORKS Derivative works of the Sandia Copyright and the AWWARF Copyright, which are owned by Sandia and/or American Water Works Association Research Foundation pursuant to the terms of the Master Agreement. EXHIBIT B APPLICABLE PROVISIONS OF MASTER AGREEMENT 13. Neither SANDIA, the United States Government, the DOE, the AWWA Research Foundation, nor any of their employees make any warranty, express or implied, or assume any legal liability or responsibility for the accuracy, completeness, or utility of LICENSE COPYRIGHT. SANDIA and the AWWA Research Foundation further make no warranty, express or implied, that the use of LICENSE COPYRIGHT made available to LICENSEE under this License Agreement will not infringe any .United States or foreign patent, copyright, trademark or trade secret. 1.4. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. 21. LICENSEE shall not, without express written consent of SANDIA, make any verbal or written statement or perform any act indicating that SANDIA or the AWWA Research Foundation' endorses any use of LICENSE COPYRIGHT by LICENSEE. Further, nothing In this License Agreement shall be construed as conferring rights to use any trademark or the name of SANDIA in any advertising, endorsing, publicity, or otherwise. 25. SANDIA, the AWWA. Research Foundation, and the United States Government shall not beliable for any loss, damage (including incidental, consequential and special), injury or other casualty of whatsoever kind, or by whomsoever caused,_to the person or property of anyone, including LICENSEE, arising out of or resulting from the license granted to LICENSEE herein or the accuracy and validity of LICENSE COPYRIGHT. LICENSEE agrees for itself, its successors and assigns, to defend SANDIA and the AWWA Research Foundation, and to indemnify and hold SANDIA,.the AWWA Research Foundation, and the United States Government, harmless from and against all claims, demands, liabilities, suits or actions (including all reasonable expenses and attern ys fees incurred by or imposed on SANDIA, the AWWA Research Foundation, or the United States Government In connection therewith) for such loss, damage (including incidental, consequential and special), injury or other casualty. 28. Each party warrants and represents that the execution and delivery of this License Agreement, by SANDIA and LICENSEE, has not been induced by any promises, representations, warrants, or agreements other than those express2d herein.... A-1 and B-1 Received 07-08-02 II:dBam From- To-QMI HOTEL SOUTHPARK Pace 12