2003-315"ORDINANCENO. 2003- ,fl/~'-
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.
SECTION3: 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.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By: ;~/~ .~.] (~
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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 ~ 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.
WlTNESSETH, that in consideration of the covenants and agreements herein conta'med, 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 78th 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 certa'm
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 infi'astmcture and for certain information prepared for the
United States.
Page 1 of 11
ARTICLE II
SCOPE OF SERVICES
The CONSULTANT shall perform the following Basic Services in a professional manner:
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.
Bo
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
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 1I 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:
"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 2 of 11
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 pementage of completion of the Project, plus reimbursement for all
reasonably incurred out-of-pocket expenses, billed monthly, or for longer periods of t'mae.
CONSULTANT shall bill fi:om 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%) pement of the above
lump-sum or turnkey amount until satisfacto~ completion of the Project by CONSULTANT.
3. Nothing contffmed 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 m. "Additional Services" without first obtaining prior written authorization
fi:om the OWNER.
ADDITIONAL SERVICES: For Additional Services authorized in writing by the
OWNER in Article 111. 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
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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 ficom 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
instnunents 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 f~om any and all liability relating to their use in that project.
ARTICLE vm
INDEPENDENT CONTRACTOR
CONSULTANT shall provide senrices to OWNER as an independent contractor, not as an
employee of the OWNER. CONSULTANT shall not have or claim any fight 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 fi:om the negligent acts or omissions of the
CONSULTANT or its officers, shareholders, agents, attomeys 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
Can/ers of at least an "A-" or above:
ho
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 $I00,000 for each occurrence and not less than
$100,000 in the aggregate.
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.
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.
Professional Liability Insurance or appropriate Errors & Omissions Insurance with limits of
not less than $1,000,000 annual aggregate.
CONSULTANT shall furnish insurance certificates or insurance pohcies 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 pohcies, 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.
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 masons 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.
If the Agreement is terminated prior to completion of the services to be provided hereunder,
CONSULTANT shall mediately cease all services upon receipt of the written notice of
termination fi.om 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 liabihty 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
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:
To OWNER:
Freese and Nichols, Inc.
Tina E. Hanson, P.E.
4055 International Plaza, Suite 200
Fort Worth, Texas 76109-4895
Fax: (817) 735-7492
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. In 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
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.
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.
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.
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
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. CONSLrLTANT agrees that OWNER
shall have access during normal working hours to ali 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.
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.
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 finn to perform
the other services required herein, under its supervision or control.
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 carded on by the OWNER.
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.
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.
"OWNER"
CITY OF DENTON, TEXAS
A Municipal Corporation
· Michael A. Condu~f, Ci~t~ager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By:
"CONSULTANT"
FREESE AND NICHOLS, INC.
A Texas Corporation
Page 10ofll
ATTEST:
Secretary
&\Our Doc u ments\Contracts\03 ~F&N PSA for Water System Vulnerability Assessment 2003.doc
Page 11 of 11
EXHIBIT 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 RAM4Wsr~ 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) defme 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.
2. 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 arid
protocols. Implement plan and protocols with OWNER's personnel and FNI.
B. DATA DEVELOPMENT
1. Obtain utility system maps, studies, and facility construction plans from OWNER. Develop utility
system schematic and document utility operation information.
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.
3. Conduct Planning Workshop with OWNER's staffto verify utility system mission, prioritize facilities,
identify and prioritize undesirable consequences of system malfunction and identify design basis
SC-1
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, capacity~ 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, dhnking 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.
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 qf Investigation.
Develop draf~ facility prioritization and dra~ consequence criteria.
Conduct a systematic site characterization of the wate~- 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.
SC-2
Security policies and procedures and compliance with same.
Entry control for visitors, deliveries, contractors, and vendors and quantity of same.
Response time for local law enforcement and emergency services.
Construction site security and temporary water metering procedures.
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 ofroutable and non-
routable Intemet protocol (~) 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.
WATER SYSTEM VULNERAB~LITYASSESSMENT
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 likel!hood (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
SC-3 OV~qwEFNI~
14.
EMERGENCY RESPONSE PLAN DEVELOPMENT
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 t[tal 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.
I0. Prepare an opinion of probable costs for system improvements. Based on risk and cost, prioritize
system improvements.
11. Prepare fmal 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 furnish up to five (5) copies of draf~ 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.
Submit five (5) copies of fmal vulnerability assessment report. ..
Based on vulnerability assessment, identify up to four (4) utility emergency incidents for developmentlI
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 certiftcation to the Environmental Prdtection Agency that the City has completed the
emergency response plan.
SC-4
ARTICLE
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.
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.
Preparing applications and supporting documents for government grants, loans, or planning advances and
providing data for detailed applications.
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.
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).
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 fumished by FNI on a fee basis
negotiated by the respective parties outside of and in addition to this AGREEMENT.
Design, contract modifications, studies or analysis required to comply with local, ~tate, Federal or other
regulatory agencies that become effective after the date of this agreement.
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.
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 112[
TIME OF COMPLETION: FNI iR 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/kickoffmeeting, planning workshop, design basis threat selection, and site
visits by October 31, 2003.
· Interim vulnerability assessment report for staffreview and progress, meeting by November 30,
2003.
· Submit fmal vulnerability assessment report to the OWNER and vulnerability assessmant
certification and summarY report to ~he Environmental Protection Agency by December 31,
2003.
· LEPC coordination meeting by January 3 I, 2004.
· Draft incident specific response plans by February 29, 2004.
· Draft emergency response plan by March 31, 2004.
· Fin~tl emergency response plan by May 31, 2004.
SC-5
Submit emergency operations plan certification to the Environmental Protection Agency and
the final Emergancy Operations Plan by June 30, 2004.
IfFNI's services are delayed through no fault ofFNI, 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, govemrnental approvals, etc. These delays may
result in an adjustment to compensation as outlined on the face of this AGREEMENT and in Attachment CO.
ARTICLE 1V
RESPONSIBILITIES OF OWNER: OWNER shall perform the following in a timely manner so as not to delay the
services of FNI:
All OWNER representatives or designated personnel involved in this evaluation and in utilizing the R/sk
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 (AWWA) obligation to SANDIA and FNI's obligation
to AWWA, must sign a "NON DISCLOSURE AGREEMENT". This is necessary for FNI to'conduct the
assessment.
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 defme OWNER's policies and decisions with respect to FNI's services for the
Project.
Provide ali 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.
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.
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.
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 whting decisions pertaining thereto within a reasonable time so as not to
delay the services of FNI.
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.
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 ha? 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.
SC-6
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.
Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of this
AGREEMENT or other services as required.
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 -
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.fi sher~cit~ofdenton.com
Owner's Accounting Representative -
FNI's Project Manager-
Annie Jackson
City of Denton
901-A Texas Street
Denton, Texas 761094895
Phone: 940-349-8463
Fax: 940-349-7334
E-mail: annie.iackson~cityofdenton.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
FNI's Accounting Representative -
Jana V. Collier
4055Intem~ional Plaza, Suite 200
FortWorth, Texas 76109-4895
Phone: 817-735-7354
Fax: 817-735-7496
E-m~l: jvc~eese.com
SC-7
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 fee ct'
Seventy Tt~ousand 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 Additinna[ Services in
Attachment SC, FNi will notify OWNER for OWNER's approval before proceeding. Additional
Service~ shall be computed base on the Schedule of Charges.
RATES FOR INHOUSE SERVICES
Computer and CAD Calcomp Ptotter Print Shop
PC CAD Statons $10.00 per hour Bond $2.~O per plot Bluelines $0.08 per square foot
PC SiaOofls $8.00 per hour Color $3.50 per plot Offsel and Xerox Copies $0.07 per single side copy
VAX Compuldr $20.00 per hour Vellum $4.00 per plot O~faet and Xerox Copies $0.14 per ~ouble side copy
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
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.
FREESE AND NICHOLS, INC
C~I~i~ D'~'TNT0~N' ~
(OWNER)
Date Date
R:\Contract~003~ondisclosure.doc
American W~ter Works
Association
]'ha AulhOritntive P~uu~ce for $~f~ Drinkina W~tar ~
NONDISCLOSUR/~
TH[fl AO~EM~ ~ hc~ccn ~ ~cdc~n Wa;ct ~or~ ~a~aflmn, ~co~om~d (A~A)
wi~ princip~ o~cc~ located ~ Denver. Colombo as ~ He--cc of thc Ri~k
Me[llodolo~ for Wetcr (~-Ws~) der=loped ~ S~D~ (opc~mr of S~ndi,
Labo~atori~ under Con,acc N~ber DE-A~04-94~8~000 ~or ~e U. S. Dcp~; o~ Encr~).
and porsuan~ to ~A's obl~g~t~n Co 8AN~A under Lic~se n~mber 02-O01171 ~d
W~REAS, k is necess~ and des~blc for COMP~ ~o havo acdesS~o c=~ of S~DIAs
Info.orlon which· S~D~ consid=~ ~pficta~ info.arian ~nfo~ation)'amd dcacghcd
~k ~s~s~enr Mc~odolo~ for Water ~M-Ws~) do.eloped by 5AND~ ~d ~c'AWWA
~s~h ~ounda~on.
Th~ sole p~osc (P~osd) ofthfl e~nge oflnfo~on ~ ta pa~it ~ COMPA~ m
employ ~e methodo]o~ in the process ofcand~ot~g a fiik ~s~sment of~tth]ic Water
pua~nt to tho fallowing terms and
T~O~, CO~Y agrees;
COMPANY shall prot~¢t Sa~dl;~ information which is elther:
a, disclased in ~ting or o~er tangible f~ ~d plainly m~ked as fl~DIA's
hfo~ation;
'b. Disclosed in another manner and idemifi~d as prapriet~ at the time af d~clos~re,
and sammari~d aM deslg~ted propd~m~ in a wdg~n memorandum delivered to
Company with in ~ (305 ~ys of din disclosure.
COMPANY shall: ,~
m Dhclose Information only in the process 0f fulfilling the aforesald Purpose and only
after the execution ora non-disclosure agreement meating rcq~kclacnta of thio
agreameat with th=participating water sysmm.
b. Use such Information only la the extaut necessary for the aforesaid Pm'lose.
c. Limit aoaesa to Information to such of its employees and eont-mctor~ reasonably
requiring salae for the aforesaid Purpose and who ara obligated to treat the salae as
confidential and in the same manner and to the dquivalem extent as provided herein
with regard to confidentiality, noauee and nondlsclosur=.
Nor remove the propr[etary mia'king fi.om any of SANDIA's Information.
Take ail steps necessary to prat=ct the information from tmau*horized uae,
reproduction, and disclosure, and to protect the information at least la the same
extent it wotdd uae to protect its own most yaluable and proprietary r,~ormation.
Rscaived 0?-0$-IlZ ll:4iaa ;rea-- '~o-Ol,~l }{OT;L SOL~THPA~X Pass 05
O~-O8-ZOQ2 10;53 From..-
10.
11,
12,
The nondisclosure obligation h~ruund~' shall no~ apply to any Information [hat:.
a. IS or becomes part of the public domain through no fault of COMIUANY;
b. Was already k~own to COMPANY prior to receipt from ~IANDIA;
c. Is lawfully disclosed to C01VfPANY by a third patW who is act under any obLigation
of confid~ntialird to -qANDlA'with respect to such In.formation.
Is at any rime developed by COM~AHY/ndepend~ntly w/thcta thc t~se of
SANDIA's Information.
No lic~nsa to C0Mt'ANY, tad= any pat~n~, u-ademark, copyright, mask work, or uny
other intellectual proparty righ: cf SANDIA or AWWA, ia eithor gren~cd or impliad By
the core'eying of Information to COM~AI',rY. Nona of the Inforr~tion tho: may be
disclosed by SANDIA or AWWA to COMPANY shall constitute any r~presen~ation,
warrumy, assurun~c, guarantee or indu¢cmcn£ by SA.NDIA or AWWA to COIv~A_NY of
any kind whatsoever other than as sc[ ~arth herein tn accomplish the purpose cf this
Agreement.
Amy Lnformarien that is or will be provided by SA.NIDIA or AWWA. to COMPAHY
under this A. greemont is provided "as is" with no express or implied warranties
whaimoever, including the implied wm.,zam~:ies of m~'eha.umbiliW and fimcss for a
particular purpose. SA_NDIA and AWWA. shall have no liability whatsoever for direct,
india:ct, or conscquenfial damages, which adsc out of C01VI~ANY'a usc of thc
Irufommlion provided by .qA.IN'DIA and AW~v'A [o COMPANY.
Neither this A. greeu~nt nor tM disclosur;, or receipt of Information shall.ennstitute or
imply any promise or in[cation to nmk~ uny puruhase of products or services l~y eithar
· pm'[y, or amy commiizaent by either p~y with respe~ to the present or f~ure mazk~liug
of any product or service.
All Information shoo remain .qANDIA'a propr~y and shall bc returned to ItA1NDIA upon
written request or to AWWA upon CO~[PAHY's dcccrm/nafion that it no longer has a
nccd for such Information.
parry may upon prior wriRen no[icc to the other pony cease to provide undYor
rcceiva any furdmer disclosures oflMormarion from the other p~rty.
'I~c ~crm of this A~recment, wh/ch ~ ~e ac~l length o~ ~e during which ~fo~fion
~y bc .~loscd, ~aI1 cxpkc 5 ye~m~om thc ~tc of ucccpt~cc of ~ A~ec~n/by
CO~ ~ ~IA, which~cr ~ ~c last to ~cc~t ~a ~ccment.
Thc obligations of this Agrccmcut with reapcct to coul2dentiality, nonusc and
nondisclosurc shall expire five (5) years from thc da~c of c.xpiration of this Agrecmcnt.
This Agreement shall be mada under, and shall be gdvemed by and construed in
accordencc with the laws of thc 'State of New Mexico, excluding its choice of law
provisions.
COMPANY agrees not to export L,~-fo~mation without both SA.,NDIA's written approval
and a proper cxpor~ license.
Eeceived 0?-08-02
11~49mm Froe- To-.O~l HOTEL SOtlTHPARK Page
OZ-OS-Z~02 1~:54 Fram-
13.
This Agreement stat:s tN: end~: a~n~nt botwcen tho parties superseding all ix-lot agr~m:nts.
If any parr is laid invalid or tmenforccmhle, such portion is strictly without cffee]; on the
remainder of the agreement.
All notices and/er correspondence horcundor, sl~ll be marled, foxed or hand-deli¥crcd
and addressee ~ follows: Ear A%tiT~A: Paula M~m]lwaine, AVOAtA, 6666 W. Quincy
Avenue, Denver, Colorado, 80235, Phone: 303-347-6139, Fax: 303-794-8915, e-mail:
pmacilwainc(~wwa.org. For SANDIA.: 3cffrey Dannccls, Org. 5862, MS 0789,
National Labozatorics, PO Box $S00, Albuquorque, New Mexico S718J-071t9, Phone:
fo5-284-3S97, Fax: 505-844-5.~69, e-mail: i~danne6~sandia.~o¥. For
IN WITNESS WI-I-ER.SOF, thc authorized repre~enmti¥cs of ?e parties have· ~xeauled
Agrccmcl~ as sct forth below,
AMERICAN WATEK WORKS ASSOCIkTION:
6666 Wast Quin~y Avenuc
Deny:r, C O_.g~135 '
Ta-Ol~ll ~O~l SOUTHPARK PaSa 07
American Water Works
Association
The Authsritativs Resource f~r Safe Drinking Wa[ar ~a
T-~8~ P.OOS/OIZ
SUBLICENSE AGREEMENT
THiS SUBLICENSE AGREEMENT, is between American Wa[e? Works Assoctstien
and the person or entity identified in the signature line bel,~w ("S~blicansee'} da[ad as cf June 11, 2002
(the 'Effective Date'}.
RECITALS
A. At/V~/A arid Sandia Co~poretion ('$andia"} ,~re parties to that cadain Restricted
Conlmercial License Agreement dated June 10, 2002 (the 'Master Agreement'), wl~eret~y
(i) Sandia provided training to AVWVA in. the paffemnance ~f vulnerability
assessment methodologies known as Risk Assessment Methodology for Water Utilities (as
described In more detail on ~ notate, the "Sandia CopYright'] and Vulnerability
Assessment Methodology for American Water Works Association Eesearc~ Fecundation. which
Sandia licensed fi.om American Water Works AssaciatJon Research Foundation (as described in
more detail' on E~hibit A hereto, the °AWWA.Research Foundation Copyright" and together with
the Sandia Copyright a,~d including derivative wer~ of bath copyrights crested by AWVVA, the
'Licensed Copydghta')); and
(ii) Sandla granted a license to AWWA tn use the Licensed copyrights and to create
derivative works thereof.
B. Pumuant t~ the Master Agreement, AWWA was 9ranted the tight to extend the right to
use the LJcansed Copyrights to third parties who attend a training workshop CO~lductad by ^WW^ (each a
"Workshop").
C. AWWA and Sublicensee desire to set forth the terms and conditions on which AW'WA Will
grant to S-bl[cansee the dght to L~se the Licensed Copyrights.
D. Tne execution of thts Agreement Indicates that Mcansae has successlully completed a
We~shop and is qualified ta use and apply the Licensed Copyrights to conduct dsk asseaements far
water/waste, =ubject to the terms herein and subject to the nondisclosure etateme, nt/agreemerlt Between ·
AV~ANA and Sublicensee. ·
AGREEMENT
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agi'ee as follows:
Sublicanse. AWVVA grants 'Sublicsnsee the non-exclusive, non-transferable, nc~n-
eubl[cenaeable, restricted right, for the term sat forth in Sac~fer~ 2 hereof, to use and evaluate the
Licensed Copyrights, solely for the purpose of conducting vulneral=[lity assessmepts for domestic United
States water utilities and ~ther wa[ar utiiitie~ approved ~ advance by AV~V, JA in writing Upon expire[~on
~.62.,~ 6 v2
Racalvs~ D?-QS-O2 11:49~$ Fr~s-
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or earlier termination of the term applicable ',~ith respect to the Licensed Copydgh~s, Suhliceneee shall
promptly return all such Licensed Copyrights, and certify in writing to AWWA that Sublicensee has not
retained any portion of the Licensed Copyrights.
Tern1 and Termlna!i:loR. The term cf dis Agreement shall commence cn the date ~rst
written ab~sve and shall expire on the earlier ar (I) the date en whlct3 ~ne Master Agreemenl is terrn[na~d,
er (ii) the data on which this Agreement ts terminated in accordance win the terms hereof. AWWA may
terminate this Agreement at any time in the event of any breach by Sublicansee.
Restrictions: Acces,'i. Bublicensee shall not copy, ~'el~roduce, alter, or i~1 any n~anner
modify the Licensed Copyrights, except with AW~A's prior written authorization Subliceneee shall net
disclose, publish, sell, transfer, distribute, suislicanse, lease, share, assign or otherwise reveal the
Licensed Copyrights to any person other than bona tide water utili~ essential personnel participating in
Sublicensee's vulnerability assessment, except with AWWA's prior written authorization, AWWA shell
have the right to inspect and evaluate during normal business hours Sublicensse's operation and use of
the Licensed Copyrights. ~
4; Ownershla. Sublicensee agrees and, ackn~swl~dges .that Sandia is the owner of th~ '
Sandia Copyright and tha{ AWWA Research Foundation is the owner of the AWWA Research Foundation
Cop~rigl-it (for purposes of this Sectio~ ~. and Sections 5 and _6, Sandia and AW~VA Research Foundation
shall ~se the "Licensors") including all Intellectual proped~y rights thereto. Nothing stated herein sllall be
deemed to grant, transfer, assign or sell to Sublicensee any right, title, interest or ownership of the
Licensed C0pyrighls. ali o1' which ts hereby expressly rose.ed by AWWA,
5. Disclaimer and Lirn[tatiell. ACKNOWLEDGES THAT AWVVA AND THE LICENSCRB
ARE PROVIDING THE LICENSED COPYRIGHTS TQ SUBLICENSEE "AS IS". 'AwWA AND THE
LICENSORS MAKE NO GUARANTEES, REPRESENTAT ONS OR WARRANTIES WITH RESPECT Td
· THE LICENSED COPYRIGHTS, EXPRESS OR IMPLIED, ARISING BY LAW QR OTHERWISE,
INCLUDING BUT NOT LIMITED TO, EFFECTIVENES~; COMPLETENESS, ACCURACY OR FITNESS
FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, AWWA AND THE
LICENSORS EXPRESSLY DISCLAIM ANY IMPO-lED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. AWWA
AND THE LJCENSORS SHALL NOT BE LIABLE FOR ANY CLAIM, DEMAND OR ACTION,
IRRESPECTIVE OF THE NATURE OF THE CAUSE THEREOF, .Qi~ FOR ANY LOSS, INJURY OR
DAMAGES, DIRECT OR INDIRECT, INCLUDING.WITHOUT LIMITATION. AMOUNTS REPRESENTING
LOSS OF REVENUES OR PROFITS, LOSS OF~USINESS OR CONTRACTS, PERSONAL ]HJURY,
PRODUCT LIABILITY, PROPERTY DAMAGE OR INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES ARtSING 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
WHATSO EVER.
8, Indemnity. Sublicensee agrees to indemnify, hold hanTIless and defend AWWA and the
Licansors from and against any and all claims, liabilitieS, losses and expenses, including reasonable
attorneys' fees and coats, arising directly or indirectly out ct Sublicansee's misuse of the Licensed
Copyrig/sts (including negligent or intentional misuse or omission) or fram Sublicsnsae'a breach o¢ this
Ag?eemenL
7. Consideration. In consideration of Suhiicensee's attendance at a Worgshep end the
9rant ct' the license sa[ forth herein, Sublicensee has paid AWWA $1,000.
Governino Law. This Agreement shall he canstr~ed in accordance with Colorado law
unaer the sole jurisdiction (which the parties hereby submit to) of the applicable state and federal courts
ar C~[arado.
-2-
From- To-~tl HOTEL ~OUTNPA21( P=~a 09 f
0~-08-2002 1g:55 Fro~- T-68S P,016/012
9. Reffledies. Sublicensee acknowledges and agrees that the provisions of this Agreement
atp a reasonable and necessary proteotion pf the immediate and substantial interests of AWWA and the. -
t.[censors, and that any violation1 of these rastrictions Would cause substantial and irreparable injury t~
AVVVVA and the [.[censors. In the event efa breach or threatened breach by Sublicenses of any provision
of this Agreement, AWWA and/er the Licansors, or either of them. shall he entitJed to sppJy to any court of
competent jurisdiction for a temporaP/ and/oF permanent injunction restraining Sublicansae from such
t3raach or threatened breach; pravide~, ~owever, that nothing ~erain contained shall be construct/ to
preclucle AWWA and/or the Licensors, or either of them, from pursuing any other available remedy for
such breach er threatened breac~ in addltinn to, o~n lieu of, such injunctive reJief.
10. Entire Aareement. This Agreement together with its Exhibits constitute the entire
agreement between the parties regarding the eubject matter hereof end supersedes any and all prier
negotiations, promises, commitments, undertakings and agreements of the parties relating thereto.
11- Notices. ,NI notices required or permitted under this Agreement shall be in writing end
"transmitted either via overnight courier, electronic mail, hand deliver er certified registered mail, p~3et~e.
prepaid end return receipt requested to the parties at th,~ir reepectivb addresses set forth on the signature
page hereto.
12. Modifications and Validity of Sienature. This Agreement may be modified only in wdting
and if signed by duly authorized representatives of the pa~ies.
13. Attorney~" Fees anc~ Costs.. in the event that any action or proceeding ie brought by
either party for the enforcement or interpreter[o!1 df thio Agreement, the prevailing party in such action or
j3rocesding shall be entitled to recover from the ne~-pravailing party, in addition to.any ether remedy
obtained, the prevailing party's reasonable attorneys' ieee and costs incurred in connect!on therewith.
14. Applicable pr~visfcns o~ Master Aq{;eer~er~t. In addition to the terms hereof, Sublicensee
agrees ta be bound as "LICENSEE" to the provisions of the Master Agreement set forth on Exhibit B
here~.
15. Assianment:. Bindine Effect. This Agreement shall be binding upon and shall inure to ~he
benefit oi= the parties hereto and their respective heirs, legal representatives, successors and permitted
assigns. Sublicansee may hot assign Sublicensee's rights or obligations under this Agreement without
the prior written consent of AWWA. Any aLtempted assignment by Sublicensee in violation of this
Bectien 15 shall be void.
16. waiver of Breach. The waiver by either party efa 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. Sup~ival. The pa~es agree that the fallowing Sections el~ this Agreement shall survive,
and remain in ~11 force and. effect fctlewing, the expiration o[ the term of this Agre~rnent er any ether
tan"ntnatian of this Agreen~ant: 3, 4, 5, 6, 8, 9, 10, 11, 13. 14, 15 and 18
Received 07-~8-02 11:4gam From- ?o-0~1 HOTEL
07-08-2002 10:66
IN WITNESS WHEREOF, Me ~adies heret~ have executed ~iS Agreement as of the date
wd~en above. ~
AMERICAN WATER WORKS ASSOCIATION: SLtBLICENSEE:
8666 WeSt Quincy Avenue (company name and address]
Received . O7-QB-Q2 11:49aa Fram- To-Ol~l[ HOTEL SOUTI~PAflI( Pa~e II ~
From- T-~O~ P,O1Z/Oi2 F-ZOO
EXHIBIT A
LICENSED COPYRIGHTS
SANDIA COPYRIGHT
SCR# 593: R ~-k Asse~emen! Methoc~olagy for Water (RAM-W) prasente a security risk assessment
lrle~ednlegy fc]r water utilities. Major elements Include: Planning, Threat Assessment, Facility
Characterization, System ~ecuHty Etfectiveness, Risk ManagemenL
AWWARF COPYRIGHT
"Vulnerability Assessment Methodology for Amedcan Water Wori~ Association Research Foundation"
[2001, AWWARP-J, Licensed to Sonclia Corporation by the AWWA Research Foundation ir~ Agreement
:~32-1nnQ37
DERIVATIVE WORKS
Derivative works of the Sandia Copyright and the AWWARF Cop~rfght, which ere owned by Sandla
and/or Amedcan Water Works Association. Research Foundation pursuant to the terms of the Master
Agreement.
' F-XHIBtT B
APPLICABLE PRCVISIQNS OF MASTER AGREEMENT
13. Neither 8ANI31A, the united 8totes Government, the DOE, the AWWA Research
Faundatinn, nor any of their employees make any warranty, express or implied, or .as. aurae any legal
liability o~ re.'~ponmibility fo-r the ecoucacy, completeness, ar utility of LICENSE COPYRIGHT. SANDIA and
the AWWA Research Fnundatlcn further make ~o warranty, express or implied, that the use oi~ LICENSE
COPYRIGHT made available to LICENSEE under this License Agreement will not infringe any .United
States er foreign patent, copyright, trademark er treble secret.
1.4. ALL WARRANTIEs, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
iMFLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE EXCLUDED;
21. LICENSEE shall nat, without express wri{ten consent ef SANDIA, make any verbal er
written stated~ent or pedorm any act indicating hat SANOIA or the AWWA Research Foundation'
endomes any use el LICENSE COPYRIGHT by LICENSEE. Furor, not~lng la t~ls License ~rae~ent
shall be COhered as conferring dgR~ to use any tmdema~ or ~e name of SAHDiA in any adveRisfng,
endorsing, publicly, or ~e~i~a.
25. 3ANDI~ ~e AwWA. Research Fou~daUan, and the United Steres Government ~hall not
be liable for any less, damage (l~ing incidental, qansequanfial end special), inju~ ~r other ~sual[y of
whosoever ~i~d, er by whoms~ever cause~,.to ~he perso~ or prope~ el anyone, including LICENSEE,
~aing out of or resulting from the license granted to LICENSEE herein or ~he accuracy and validity of
LICENSE COPYRIGHT. LICENSEE agrees fo~ itself, ite successors and assigns, to defend SANDIA and
~e AWWA Research Foundation~ and te indemni~ and ~old SANDIA,.I~e AWWA Research Foundation,
and ~e Uflited S~tes Gevammen~ harmless from and against all claims, aemands, ~iaailitles, suits ~r
acaons [including all reasonable expenses and attom~y's fe~ incurred by or [~posed on S~DIA, the
AWWA Research Foundation, ~C t~e United ~tetes Governmen~ [n connect[on ~erawlt~) ~or such ~oss,
damage (including incidentel, consequential and special}, [~ju~. or ot~er ~sualty.
Eac~ Party wa~an~ and reprasen~ ~a~ the execution and delive~ of this License
Agreement, by ~ANDIA and LICENSEE, has noi been induce~ by any promises, represen~lons,
warmnm, or agreements ~er than ~ose expms~ herein ....
A-1 and
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I~scoivad §?~08~02 I I