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HomeMy Public PortalAboutExhibit MSD 24D Black & Veatch 7-28-10 Contract Work PapersExhibit MSD 24D ORDINANCE NO. 13092 AN ORDINANCE, authorizing the Executive Director and Secretary -Treasurer on behalf of The Metropolitan St. Louis Sewer District to enter into a contract with Black & Veatch Corporation (B&V), whereby Black & Veatch Corporation (B&V) will provide rate design development, rate report preparation and expert testimony services required during anticipated future Rate Commission proceedings. BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE METROPOLITAN ST. LOUIS SEWER DISTRICT: Section One: The Executive Director and Secretary -Treasurer are hereby authorized on behalf of The Metropolitan St. Louis Sewer District to enter into a contract with Black & Veatch Corporation (B&V), whereby Black & Veatch Corporation (B&V) will provide rate design development, rate report preparation and expert testimony services required during anticipated future Rate Commission proceedings. Section Two: The contract authorized in Section One of this ordinance shall provide for a fee not to exceed One Hundred Fifty Thousand Dollars ($150,000), for fiscal year 2011 and shall be comprised of such other terms and conditions as are approved by the Office of the General Counsel of the District. The foregoing Ordinance was adopted June 10, 2010. Page xx of AGENDA ITEM NUMBER: NAME OF PROJECT: District Rate Modeling & Expert Testimony LOCATION: Finance TYPE OF PROJECT: Professional Services DEPARTMENT REQUESTING ACTION: Finance REQUESTED ACTION: Why is this action necessary?: To execute a contract agreement for professional services with Black & Veatch Corporation What does action accomplish?: This action provides the District rate design development and expert testimony required during the District's anticipated FY11 Rate Commission deliberations. SUMMARY EXPLANATION/BACKGROUND: Contractor: Black & Veatch Corporation 11401 Lamar Avenue Overland Park Kansas 66211 Previous District Contract: Yes Consultant: N/A Agency: N/A Number of bidders: N/A Low Bid: N/A High Bid: N/A Appropriation Amount: $150,000 MBE/WBE Participation: N/A Plan Approval Date: N/A Properties Affected: N/A Designed by: N/A District's Estimate: N/A Type of Contract: Professional - Sole Source Properties Benefiting: N/A FUNDING/COST SUMMARY: Budgeted: Finance Division Budget Budget Year: FY11 Amount: $150,000 Fund Name: General Fund Additional Comments: Black & Veatch (B&V) is the developer of the comprehensive Rate model software used by the District to develop it Rate Strategies and Rate Change Submittals. This software is highly customized for District use and support by any other vendor is unavailable. B & V would also provide expert testimony for the District during anticipated Rate Commission Deliberations. PREVIOUS BOARD ACTION RELATED TO THIS ACTION: 02/14/2008 Ordinance No. 12595 - Amount: $50,000, Rate Model Support and Expert Testimony 11/10/2004 Ordinance No. 11896 - Amount: $20,000, Support and Review for District's Rate Model 01/08/2004 Ordinance No. 11670 - Amount: $30,000, Reconstruct District Rate Model FY11 BUDGET BUSINESS CASE DEPARTM ENT: Finance DIVISION: Administra tion ISSUE: Rate De sign a nd Rate Commission Proce ss Support BUDGET CODES AFFECTED: Professional Services (452) PROBLEM STATEM ENT: In January 2008, the District submitted a combined wastewater / stormwater rate increase proposal to the Rate Commissi on which resulted in BoT approval of a 5 -year wastewater rate increase plan ending in FY12 and a 7 -year stormwater rate increase plan ending in FY14. The District will require approval of additio nal wastewater ra te increases by July 1, 2012 in order to continue the implementation of its multi -decade CIRP. The rate change process requires: 1) Preparation of a de tailed rate design / cost of service report; The development of the rate design require s the use of a highly technical and complex rate design model. At the present time the District does not have the in-house technology to conduct the necessary analysis and produc e acco mpanying reports / documents to meet the rigorous scrutiny of the rate review proc ess. 2) Expert witness services require d during the Rate Commission deliberations; These services re quire an expert ve rse d in the complexities of wastewater and stormwater rate design in addition to a robust knowledge of the engineering aspects of the District's operations and CIRP . In past rate cases, the District's approach has used an outside consulting firm to service as its expert witn ess to add 3 party objectivity and provide a level of technical rate design and underlying engineering knowledge not available in-house. This expertis e is also needed to assure the District's rate proposal can withstand the high l evel of scrutiny of th e R ate Commission, its consultants, legal representatives and expert witnesses representing various intervenors. 3) Responses to highly detailed rate design technical questions and discovery requests generated by the Rate Commission, its consultants and expe rt witness es repr esenting the various intervenors engaged in the rate proceeding. The rate review proce ss involves the District responding to a high volume of t echnical questions and detailed discovery requests generated through out the Rate Commission proceedings. These questions and requests are received from the Ra te Commission itself, in addition to multiple expert witnesses representing v arious intervenors. These questions address issues r elated to the District's rate design, proposed funding plan and CIRP and operational co sts. Throughout the process th e various parties involved propose alternative rat e i ncrease approaches which also require District analysis and response. The District's use of a r ate design expert brings crucial 3`d party creditability equal to that engaged by the Rat e Commission and involved interv enors . This phase of the process r equires all parties engaged meet a highly c ompressed timeline and due dates specified by Chart er. FY11 BUDGET BUSINESS CASE DEPA RTM ENT: Finance DIVISIO N: Administration ISSUE: Rate Design and Rate Commission Process Support BUDGET CODES AFFECTED: Professional Services (452) SO LUTION STATEMENT: It is recommended that Black & Ve atc h be reta ined on a sole -source basis as the District's rate consultant for the upcoming Rate Commission proceedings. Black & Vea tch has been continuously involved in the District rate design, revenue bond issuances and other financial relate d matters for over 20 ye ars. Black & Veatch provided expert witness services for each of the prior Rate Commission proceedings, including reliable attenda nce at all technical conferences and other Rate Commission meetings/hearings. Black & Veatch's extensive engine ering and rate design experience will save District Staff the time of bringing a nother consultant up to speed on the District's financial matters, the rate setting process and a void the added expense of developing a new untested rate model. The rate model used by the District was designed by Black & Veatch and is a proprie tary intellectual product. This model has been thoroughly tested and used by the District since 1981 to design rates, support EPA negotiations and prepare require d financial analysis associated with the issuance of District revenue bonds. FINANCIA L FORECAST: ONE TIM E START-UP COSTS: CONTINUOUS ANNUAL COSTS: Maximum fee limit for these services is estimated to be $150,000 including preparation of a comprehensive cost of service based rate report and required expert witness services. The actual fe e could be less than th e maximum limit depending on the level of discovery requests and expert witness services required . This fe e is substantially less than that incurred for the most recent Rate Commission proceeding The use of Black & Veatch in a sole source role will result in a 59% cost savings compared to the aggregate fees of $369,264 spend during the most re cent Rate Co mmission proceedings. Funding for these services is concluded in th e FY11 Budge t currently being considered by the BoT . Annual Cost (current value): NA PREPA RED BY: Jan Zimmerman, Director of Finance DATE: Here is the contract after a 2nd review by Kevin. Per your questions/comments: 1. Deliverables and material not considered protected as B&V intellectual property have been specifically defined 2. (paragraph 7) 3. B&V will need MSD's written approval prior to engaging any subcontractor (paragraph 11) 4. Limited liability insurance requirements were clarified and dollar levels increased (paragraphs 2, 3 & 4) 5. Corrected typo in Exhibit A — sentence C 6. June 30, 2011 expiration date — This is defined within the Ordinance. After discussing with Karl, we will be able to submit a "change order" to the BoT similarly as we've done with the audit contracts in the past. I would like to get this to B&V for signature soon since rate work is about to begin in eamest Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 CONSULTING SERVICES AGREEMENT This Agreement (Agreement), effective July I, 2010, is by and between the METROPOLITAN ST. LOUIS SEWER DISTRICT (CLIENT) and BLACK & VEATCH CORPORATION (CONSULTANT). CONSULTANT shall perform the Scope of Services (Services) set forth in Exhibit A —Scope of Services and CLIENT shall pay CONSULTANT in accordance with the compensation provisions set forth in Exhibit A. 1. CONSULTANT warrants that it shall perform the Services in accordance with the standards of care and diligence normally practiced by recognized consulting firms in performing services of a similar nature. No other warranty, express or implied is included in this Agreement or in any drawing, specification, report, or opinion produced pursuant to this Agreement. 2. CONSULTANT shall maintain in force, during the period that Services are performed, workers' compensation insurance in accordance with the laws of the states having jurisdiction over CONSULTANT's employees who are engaged in the Services and employer's liability insurance with a limit of $150,000 each occurrence and in the aggregate; automobile liability insurance with combined single limit of $1,000,000 aggregate limits of $1,000,000. 3. CONSULTANT shall maintain in force for the duration of this contract errors and omissions liability insurance appropriate to the consultant's profession. Coverage as required in this Article shall apply to liability for professional error, act or omission arising out of scope of the consultant's services as defined in this contract. Coverage shall be written subject to limits of not less then $1,000,000 per occurrence. The insurance coverage under such certificates shall be retroactive to the earlier of the date of this Agreement or the commencement of the Consultant's work on the Project, and Consultant shall cause the same to remain in effect for period of two (2) years after final acceptance of the Project by the District, (hereinafter referred to as the Insurance Period). Added Paragraph 4. CONSULTANT shall maintain commercial general liability (CGL) and if necessary, commercial umbrella insurance with a limit of not less then $2,000,000 each occurrence for a duration of the contract CGL insurance shall be written on ISO occurrence form CG 00 01 10 01 (or substitute form providing equivalent coverage) and shall cover liability arising from premise, operations, independent contractors products -completed operations, personal injury and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). The District shall be endorsed on the policy as additional insured Added Paragraph 5. CONSULTANT shall indemnify CLIENT against any and all claims, demands and causes of action for bodily injury to or death of persons or for damage to or destruction of third -party property resulting solely from any and all negligent physical acts of CONSULTANT while at CLIENT's facility. CLIENT and CONSULTANT hereby waive all claims for property damage against the other; however such damage may be caused, including without limitation the negligence or fault of the other party, and shall require their insurers to waive subrogation rights against the other party under any applicable policy of property insurance. 6. In perfonnance of the Services, it is understood that CONSULTANT may be supplied with certain information and/or data by CLIENT and/or others, and that CONSULTANT will rely on such information. It is agreed that the accuracy of such information is not within CONSULTANT's control and CONSULTANT shall not be liable for its accuracy, nor for its verification, except to the extent that such verification is expressly a part of CONSULTANT's Scope of Services. 7. CONSULTANT shall retain its rights in its standard drawing details, designs, specifications, databases, computer software, models and any other proprietary property. Rights to intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of the CONSULTANT with the specific exception of any rate reports, rate model data, written testimonies, al 1 materials required by the Rate Commission and any other deliverables as required by the CLIENT. Defined exclusion not considered protected as B&V intellectual property. 8 CLIENT may, with or without cause, terminate the Services at any time upon ten working days written notice to CONSULTANT. In such case, CONSULTANT shall be paid costs incurred and fees earned to the date of termination and through demobilization and neither party shall be entitled to any other compensation or damages from the other. 9. CLIENT may audit and inspect CONSULTANT's records and accounts covering reimbursable costs for a period of 3 years following the completion of CONSULTANT's Services. The purpose of any such audit shall be only for verification of such costs. CONSULTANT shall not be required to keep records of or provide access to those of its costs expressed as fixed rates, a lump sum, or as a percentage of other costs. 10 CONSULTANT's opinions, estimates, projections, and forecasts of current and future costs, revenues, other levels of any sort, and events shall be made on the basis of available information and CONSULTANT's expertise and qualifications as a professional. CONSULTANT does not warrant or guarantee that its opinions, estimates, projections or forecasts of current and future levels and events will not vary from CLIENT's estimates or forecasts or from actual outcomes. 11. The parties agree to look solely to each other with respect to performance of this Agreement, CONSULTANT may subcontract portions of the Services to its successor, related or affiliated entities with the written approval of CLIENT. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than CLIENT and CONSULTANT. Except for CLIENT'S obligation to make payments, neither party shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond such party's reasonable control. 12. Neither party shall be liable to the other party for loss of profits or revenue; loss of use; loss of opportunity; loss of goodwill; cost of substitute facilities, goods or services; cost of capital; cost of replacement power; governmental and regulatory sanctions; and claims of customers for such damages; or for any special, consequential, incidental, indirect or exemplary damages whether a claim for any such loss arises out of breach of contract, warranty, lort (including negligence), strict liability, indemnity, or another theory. CONSULTANT's total aggregate liability under this Agreement for any reason whatsoever shall not exceed the compensation received by CONSULTANT under this Agreement, and CLIENT, to such extent as may be permitted by law, agrees to release, defend, indemnify, and hold CONSULTANT harmless from and against any and all further liability in excess thereof arising in any manner from the Services. In the event such provision is determined to exceed the maximum scope allowed by law, said provision shall be interpreted and enforced so as to preserve the indemnity, release or limitation to the maximum extent allowable. The warranties, obligations, liabilities and remedies of the parties, as provided herein, are exclusive and in lieu of any others available at law, equity or otherwise. Indemnifications against, releases from, and limitations of liability and waivers of subrogation shall apply notwithstanding the fault, negligence (whether active, passive, joint or concurrent), strict liability or other theory of legal liability of the party indemnified, released or whose liability is limited and shall be effective to, and only to, the maximum extent allowable by law. This Agreement and the attached Exhibit constitute the entire Agreement. No other representations of any kind, oral or otherwise, shall have any effect. This Agreement shall be governed by the laws ofthe state of Missouri, without giving effect to the principles thereof relating to conflicts of law. IN WITNESS WHEREOF, Client and Consultant have signed this Agreement. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By By Jeffrey L. Theerman Executive Director Peggy L. Howe Vice President Date Date ATTEST: Karl J. Tyminski Secretary -Treasurer Approved as to Legal Form Office of General Counsel Randy E. Hayman General Counsel I certify that this expenditure is within the appropriation to which it is to be charged, and that there is an unencumbered balance in the appropriation sufficient to pay this obligation or so much of it as may be payable during the current fiscal year. Janice M. Zimmerman Director of Finance Date 2 EXHIBIT A CONSULTING SERVICES AGREEMENT Dated July 1, 2010 Between METROPOLITAN ST. LOUIS SEWER DISTRICT ("Client") And BLACK & VEATCH CORPORATION ("Consultant") A. Scope of Services — Consultant will provide rate design development, rate report generation and expert witness testimony services required during anticipated 2010/2611 Rate Conunission proceedings. B. Term — The term of this Agreement shall be for one (1) year commencing on July 1, 2010 and terminating on June 30, 2011. C. Compensation — Client will pay, and Consultant will accept compensation for services provided based on the following fee basis: Compensation for the Services provided by this Agreement shall be at the billing rates specified below plus direct expenses at out -of pocket costs. Direct expenses include materials and support services costs and travel expenses. Materials and support services costs include such items as computer time, long distance telephone charges, postage, report reproduction costs and other miscellaneous direct costs. Direct expenses shall be itemized on invoices submitted to Client for payment. Supporting documentation for direct expenses shall be made available to Client for verification at Client's request. The maximum amount payable to the Consultant for services provided by this Agreement shall not exceed one hundred fifty thousand dollars ($150,000) without further Client authorization. Senior Vice President $325/hour Vice President (Principal -in -Charge) $305/hour Director $275/hour Principal (Project Manager) $240/hour Manager $205/hour Consultant $170/hour Senior Analyst $140/hour Analyst $110/hour Clerical/Administrative Support $ 80/hour D. Method of Payment - Payments to be made to Consultant under this Agreement shall be electronically transferred either by ACH, specifically in CCD+ or CTX format, or wire transfer to the bank account and in accordance with the bank instructions identified in Consultant's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields or the ACH addenda information. E. Client Responsibilities — Client shall furnish, as required by the work and not at the expense of the Consultant, the following items. 1. Make available to the Consultant all records, reports, maps, and other data pertinent to the provision of the Services required under this Contract. 2. Examine all analyses, reports and other documents submitted by Consultant for Client review and render decisions promptly to prevent delay to the Consultant 3. Designate one person as the Client representative (Project Manager) with respect to all Services to be rendered under this Contract. This individual shall have authority to transmit instructions, receive information and to interpret and define the Client's policies and decisions pertinent to the Consultant's services. IN WITNESS WHEREOF, the parties have executed this Exhibit A on the date(s) indicated below. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By: By: Jeffrey L. Theennan Executive Director Peggy L. Howe Vice President Date: Date: 3 Page 1 of 3 Janice Fenton From: Jan Zimmerman Sent: Tuesday, July 13, 2010 4:55 PM To: Janice Fenton Subject: FW: Black & Veatch Rate Design Contract Attachments: Black and Veatch - CONSULTING SERVICES AGREEMENT 2010-1011.doc HC Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 From: Kevin Marquitz Sent: Tuesday, July 13, 2010 4:50 PM To: Jan Zimmerman Cc: Randy Hayman; Michael Grace Subject: RE: Black & Veatch Rate Design Contract Jan Please see the attached. It contains all of the changes you made. I call particular attention to paragraphs 2, 3 & 4. I added in some more detail regarding professional liability coverage. 1 have also spelled out specific exceptions to intellectual property rights in paragraph 7 using the language you and Karl discussed. If you have any questions, would like any additions or would like to meet to go over anything, please let me know. Thank you Kevin From: Jan Zimmerman Sent: Tuesday, July 13, 2010 7:59 AM To: Kevin Marquitz Subject: RE: Black & Veatch Rate Design Contract Please make the necessary revisions except for contract extension, 1 will be talking to Karl this morning about our options. As for the intellectual property, exclusion should be: "excluding any rate reports and supporting rate model data, written testimonies and any other material as required by the Rate Commission deliberations." Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 From: Kevin Marquitz 7/14/2010 Page 2 of 3 Sent: Monday, July 12, 2010 3:22 PM To: Jan Zimmerman Cc: Randy Hayman Subject: FW: Black & Veatch Rate Design Contract Jan I spoke with Mike Grace regarding our insurance coverage and he provided me the attached language we may wish to use. Thanks Kevin From: Michael Grace Sent: Monday, July 12, 2010 3:20 PM To: Kevin Marquitz Subject: RE: Black & Veatch Rate Design Contract Kevin: I have attached some wording for Professional Liability and optional CGL you may want to incorporate, see attachment. From: Kevin Marquitz Sent: Monday, July 12, 2010 2:34 PM To: Michael Grace Subject: FW: Black & Veatch Rate Design Contract Mike Please let me know your thoughts on #3 re insurance. I think Jan is correct, but 1 want to double check. Thank you Kevin From: Jan Zimmerman Sent: Monday, July 12, 2010 2:29 PM To: Randy Hayman; Kevin Marquitz Subject: Black & Veatch Rate Design Contract Jeff has the following questions: 1. Does B&V's intellectual property rights include the final deliverables (rate report, rate model data, written testimony etc.) provided to MSD. Should there be language exempting this material? 2. Right to subcontract. Not sure what his issue is, but I've added that MSD's written approval is required for B&V to engage a subcontractor. 3. The dollar liability limit is $100,000 per occurrence. This should be at least $150,000, the value of the contract correct? I revised accordingly 4. Corrected a small typo in sentence "c" of Exhibit A. 5. Terms of contract ends 6/30/11. Rate work will continue beyond this date. Can we include language that specifies MSD can extend on a month -to -month basis as long as $150,000 contract award is not exceeded without BoT action? If so, we need to add language. I've attempted to add these revisions. See the changes in Word highlight We need to get a final version and re -signatures from 7/14/2010 Page 3 of 3 B&V as soon as we can. Thanks Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 7/14/2010 CONSULTING SERVICES AGREEMENT This Agreement (Agreement), effective July 1, 2010, is by and between the METROPOLITAN ST. LOUIS SEWER DISTRICT (CLIENT) and BLACK & VEATCH CORPORATION (CONSULTANT). CONSULTANT shall perform the Scope of Services (Services) set forth in Exhibit A --Scope of Services and CLIENT shall pay CONSULTANT in accordance with the compensation provisions set forth in Exhibit A. i. CONSULTANT warrants that it shall perform the Services in accordance with the standards of care and diligence normally practiced by recognized consulting firms in performing services of a similar nature. No other warren% express or implied is included in this Agreement or in any drawing, specifteation,report, or opinion produced pursuant to this Agreement. CONSULTANT shall maintain in force, during the period that Services are performed, workers' compensation insurance in accordance with the laws of the states having jurisdiction over CONSULTANTs employees who are engaged in the Services and employer's liability insurance with a limit of $150,000 each occurrence and in the aggregate; automobile liability insurance with combined single limit of $1,000,000 aggregate limits of $1,000,000. 3. CONSULTANT shall maintain in force for the duration of this contract errors and omissions liability insurance appropriate to the consultant's profession. Coverage as required in this Article shall apply to liability for professional error, act or omission arising out of scope of the consultant's services as defined in this contract Coverage shall be written subject to limits of not less then $1,000,000 per occurrence. The insurance coverage under such certificates shall be retroactive to the earlier of the date of this Agreement or the commencement of the Consultant's work on the Project, and Consultant shall cause the same to remain in effect for period of two (2) years after final acceptance of the Project by the District, (hereinafter referred to as the Insurance Period). 4. CONSULTANT shall maintain commercial general liability (CGL) and if necessary, commercial umbrella insurance with a limit of not less then $2,000,000 each occurrence for a duration of the contract CGL insurance shall be written on ISO occurrence form CG 00 01 10 01 (or substitute form providing equivalent coverage) and shall cover liability arising from premise, operations, independent contractors products -completed operations, personal injury and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). The District shall be endorsed on the policy as additional insured 5. CONSULTANT shall indemnify CLIENT against any and all claims, demands and causes of action for bodily injury to or death of persons or for damage to or destruction of third -party property resulting solely from any and all negligent physical acts of CONSULTANT while at CLIENTs facility. CLIENT and CONSULTANT hereby waive all claims for property damage against the other; however such damage may be caused, including without limitation the negligence or fault of the other party, and shall require their insurers to waive subrogation rights against the other party under any applicable policy of property insurance, 2. 6. In performance of the Services, it is understood that CONSULTANT may be supplied with certain information and/or data by CLIENT and/or others, and that CONSULTANT will rely on such information. It is agreed that the accuracy of such information is not within CONSULTANTS control and CONSULTANT shall not be liable for its accuracy, nor for its verification, except to the extent that such verification is expressly a part of CONSULTANT's Scope of Services. 7. CONSULTANT shall retain its rights in its standard drawing details, designs, specifications, databases, computer software, models and any other proprietary property. Rights to intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of the CONSULTANT with the specific exception of any rate reports, rate model data, written testimonies, all materials required by the Rate Commission and any other deliverables as required by the CLIENT. 8 CLIENT may, with or without cause, terminate the Services at any time upon ten working days written notice to CONSULTANT. In such case, CONSULTANT shall be paid costs incurred and fees earned to the date of termination and through demobilization and neither party shall be entitled to any other compensation or damages from the other. 9. CLIENT may audit and inspect CONSULTANT's records and accounts covering reimbursable costs fora period of 3 years following the completion of CONSULTANTS Services, The purpose of any such audit shall be only for verification of such costs. CONSULTANT shall not be required to keep records of or provide access to those of its costs expressed as fixed rates, a lump sum, or as a percentage of other costs. 10. CONSULTANTS opinions, estimates, projections, and forecasts of current and future costs, revenues, other levels of any sort, and events shall be made on the basis of available information and CONSULTANT's expertise and qualifications as a professional CONSULTANT does not warrant or guarantee that its opinions, estimates, projections or forecasts eminent and future levels and events will not vary from CLIENTS estimates or forecasts orfrom actual outcomes. 11. The parties agree to look solely to each other with respect to performance of this Agreement. CONSULTANT may subcontract portions of the Services to its successor, related or affiliated entities with the written approval of CLIENT Nothing in this - -- _ Agreement shall be construed to give any rights or benefits to anyone other than CLIENT and CONSULTANT. Except for CLIENT'S obligation to make payments, neither party shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond such party's reasonable control. 12. Neither party shall be liable to the other party for loss of profits or revenue; loss of use; loss of opportunity; loss of goodwill; cost of substitute facilities, goods or services; cost of capital; cost ofreplacement power; governmental and regulatory sanctions; and claims of customers for such damages; or for any special, consequential, incidental, indirect or exemplary damages whether a claim for any such loss arises out of breach of contract, warranty, tart (including negligence), strict liability, indemnity, or another theory. CONSULTANTS total aggregate liability under this Agreement for any reason whatsoever shall not exceed the compensation received by CONSULTANT under this .Agreement, and CLIENT, to such extent as may be permitted by law, agrees to release, defend, indemnify, and hold CONSULTANT harmless from and against any and all further liability in excess Deleted: thereofarising in any manner from the Services. In the event such provision is determined to exceed the maximum scope allowed by law, said provision shall be interpreted and enforced so as to preserve the indemnity, release or limitation to the maximum extent allowable. The warranties, obligations, liabilities and remedies of the parties, as provided herein, are exclusive and in lieu of any others available at law, equity or otherwise. Indemnifications against, releases from, and limitations of liability and waivers of subrogation shall apply notwithstanding the fault, negligence (whether active, passive, joint or concurrent), strict liability or other theory of legal liability of the party indemnified, released or whose liability is limited and shall be effective to, and only to, the maximum extent allowable by law. This Agreement and the attached Exhibit constitute the entire Agreement No other representations of any kind, oral or otherwise, shall have any effect This Agreement shall be governed by the laws of the state of Mlssouri, without giving effect to the principles thereof relating to conflicts oflaw. IN WITNESS WHEREOF, Client and Consultant have signed this Agreement. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By Jeffrey L. Theerman Executive Director BY Peggy L. Howe Vice President Date Date ATTEST: Karl J. Tyminaki Secretary -Treasurer Approved as to Legal Form Office of General Cotmsel Randy E. Hayman General Counsel I certify that this expenditure is within the appropriation to which it is to be charged, and that there is an unencumbered balance in the appropriation sufficient to pay this obligation or so much of it as may be payable during the current fiscal year. Janice M. Zimmerman Director of Finance Date EXHIBIT A CONSULTING SERVICES AGREEMENT Dated July 1, 2010 Between METROPOLITAN ST. LOUIS SEWER DISTRICT ("Client") And BLACK & VEATCH CORPORATION ("Consultant") Scone of Services — Consultant will provide rate design development, rate report generation and expert witness testimony services required during anticipated 2010/2011 Rate Commission proceedings. $. Term — The term of this Agreement shall be for one (1) year commencing on July 1, 2010 and terminating on June 30, 2011. C. Compensation — Client will pay, and Consultant will accept compensation for services provided based on the following fee basis: Compensation for the Services provided by this Agreement shall be at the billing rates specified below plus direct expenses at out -of pocket costs. Direct expenses include materials and support services costs and travel expenses. Materials and support services costs include such items as computer time, long distance telephone charges, postage, report reproduction costs and other miscellaneous direct costs. Direct expenses shall be itemized on invoices submitted to Client for payment. Supporting documentation for direct expenses shall be made available to Client for verification at Client's request. The maximum amount payable to the Consultant for services provided by this Agreement shall not exceed one hundred fifty thousand dollars (5150,000) without further Client authorization. Senior Vice President $325/hour Vice President (Principal -in -Charge) $305/hour Director 5275/hour Principal (Project Manager) $240/hour Manager $205/hour Consultant $170/hour Senior Analyst $140/hour Analyst $110/hour Clerical/Administrative Support $ g0/hour D. Method of Payment - Payments to be made to Consultant under this Agreement shall be electronically transferred either by ACH, specifically in CCD+ or CTX format, or wire transfer to the bank account and in accordance with the bank instructions identified in Consultant's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields or the ACH addenda information E. Client Responsibilities — Client shall furnish, as required by the work and not at the expense of the Consultant, the following items. 1. Make available to the Consultant all records, reports, maps, and other data pertinent to the provision of the Services required under this Contract. 2. Fxamine all analyses, reports and other documents submitted by Consultant for Client review and render decisions promptly to prevent delay to the Consultant. 3. Designate one person as the Client representative (Project Manager) with respect to all Services to be rendered under this Contract. This individual shall have authority to transmit instructions, receive information and to interpret and define the Client's policies and decisions pertinent to the Consultant's services. IN WITNESS WHEREOF, the parties have executed this Fxhibit A on the date(s) indicated below. METROPOLITAN ST, LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By: By. Jeffrey L. Theerrnan Peggy L. Howe Executive Director Vice President Date: Date: 3 Page 1 of 2 Jan Zimmerman From: Kevin Marquitz Sent: Tuesday, July 13, 2010 4:50 PM To: Jan Zimmerman Cc: Randy Hayman; Michael Grace Subject: RE: Black & Veatch Rate Design Contract Jan Please see the attached. It contains all of the changes you made. I call particular attention to paragraphs 2, 3 & 4. I added in some more detail regarding professional liability coverage. I have also spelled out specific exceptions to intellectual property rights in paragraph 7 using the language you and Karl discussed. If you have any questions, would like any additions or would like to meet to go over anything, please let me know. Thank you Kevin From: Jan Zimmerman Sent: Tuesday, July 13, 2010 7:59 AM To: Kevin Marquitz Subject: RE: Black & Veatch Rate Design Contract Please make the necessary revisions except for contract extension, I will be talking to Karl this morning about our options. As for the intellectual property, exclusion should be: "excluding any rate reports and supporting rate model data, written testimonies and any other material as required by the Rate Commission deliberations." Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 From: Kevin Marquitz Sent: Monday, July 12, 2010 3:22 PM To: Jan Zimmerman Cc: Randy Hayman Subject: FW: Black & Veatch Rate Design Contract Jan I spoke with Mike Grace regarding our insurance coverage and he provided me the attached language we may wish to use. Thanks Kevin 7/14/2010 Page 2 of 2 From: Michael Grace Sent: Monday, July 12, 2010 3:20 PM To: Kevin Marquitz Subject: RE: Black & Veatch Rate Design Contract Kevin: I have attached some wording for Professional Liability and optional CGL you may want to incorporate, see attachment. From: Kevin Marquitz Sent: Monday, July 12, 2010 2:34 PM To: Michael Grace Subject: FW: Black & Veatch Rate Design Contract Mike Please let me know your thoughts on #3 re insurance. I think Jan is correct, but I want to double check. Thank you Kevin From: Jan Zimmerman Sent: Monday, July 12, 2010 2:29 PM To: Randy Hayman; Kevin Marquitz Subject: Black & Veatch Rate Design Contract Jeff has the following questions: 1. Does B&V's intellectual property rights include the final deliverables (rate report, rate model data, written testimony etc.) provided to MSD. Should there be language exempting this material? 2. Right to subcontract. Not sure what his issue is, but I've added that MSD's written approval is required for B&V to engage a subcontractor. 3. The dollar liability limit is $100,000 per occurrence. This should be at least $150,000, the value of the contract correct? I revised accordingly 4. Corrected a small typo in sentence "c" of Exhibit A. 5. Terms of contract ends 6/30/11. Rate work will continue beyond this date. Can we include language that specifies MSD can extend on a month -to -month basis as long as $150,000 contract award is not exceeded without BoT action? If so, we need to add language. I've attempted to add these revisions. See the changes in Word highlight. We need to get a final version and re - signatures from B&V as soon as we can. Thanks Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 7/14/2010 Page 1 of 1 Jan Zimmerman From: Jan Zimmerman Sent: Tuesday, July 13, 2010 8:33 AM To: Kevin Marquitz Subject: B&V Contract I spoke with Karl. Can not include any language to extend the contract. We wilt need to go back to the BoT for an amendment to continue work past 6/30/11. Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 7/13/2010 Page 1 of 2 Jan Zimmerman From: Jan Zimmerman Sent: Tuesday, July 13, 2010 7:59 AM To: Kevin Marquitz Subject: RE: Black & Veatch Rate Design Contract Please make the necessary revisions except for contract extension, I will be talking to Karl this morning about our options. As for the intellectual property, exclusion should be: "excluding any rate reports and supporting rate model data, written testimonies and any other material as required by the Rate Commission deliberations." Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 From: Kevin Marquitz Sent: Monday, July 12, 2010 3:22 PM To: Jan Zimmerman Cc: Randy Hayman Subject: FW: Black & Veatch Rate Design Contract Jan I spoke with Mike Grace regarding our insurance coverage and he provided me the attached language we may wish to use. Thanks Kevin From: Michael Grace Sent: Monday, July 12, 2010 3:20 PM To: Kevin Marquitz Subject: RE: Black & Veatch Rate Design Contract Kevin: I have attached some wording for Professional Liability and optional CGL you may want to incorporate, see attachment. From: Kevin Marquitz Sent: Monday, July 12, 2010 2:34 PM To: Michael Grace Subject: FW: Black & Veatch Rate Design Contract Mike 7/13/2010 Page 2 of 2 Please let me know your thoughts on #3 re insurance. I think Jan is correct, but I want to double check. Thank you Kevin From: Jan Zimmerman Sent: Monday, July 12, 2010 2:29 PM To: Randy Hayman; Kevin Marquitz Subject: Black & Veatch Rate Design Contract Jeff has the following questions: 1. Does B&V's intellectual property rights include the final deliverables (rate report, rate model data, written testimony etc.) provided to MSD. Should there be language exempting this material? 2. Right to subcontract. Not sure what his issue is, but I've added that MSD's written approval is required for B&V to engage a subcontractor. 3. The dollar liability limit is $100,000 per occurrence. This should be at least $150,000, the value of the contract correct? I revised accordingly 4. Corrected a small typo in sentence "c" of Exhibit A. 5. Terms of contract ends 6/30/11. Rate work will continue beyond this date. Can we include language that specifies MSD can extend on a month -to -month basis as long as $150,000 contract award is not exceeded without BoT action? If so, we need to add language. I've attempted to add these revisions. See the changes in Word highlight. We need to get a final version and re - signatures from B&V as soon as we can. Thanks Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 7/13/2010 Page 1 of 2 Jan Zimmerman From: Kevin Marquitz Sent: Monday, July 12, 2010 3:01 PM To: Jan Zimmerman; Randy Hayman Subject: RE: Black & Veatch Rate Design Contract Jan & Randy My review of Jan's questions is as follows, 1. The written testimony is definitely not included in intellectual property rights. However, the rate report and rate model data would be included the way paragraph 5 is written. We may wish to have them define "any other proprietary property." as referenced in paragraph 5. I would recommend adding the language exempting this material and any other that MSD desires to use for future use. 2. I have not been aware of this issue in the past, but I like the idea of making subcontracting subject to MSD's written approval. 3. As B & V is providing professional services, l would like a copy of the E & 0 Insurance and to make sure Mike Grace & Risk Management have a copy of same. Generally most insurance policies will not allow you to add an additional insured on a professional service contract. I am double checking with Mike to see what else we would need. 4. No o response needed 5. The idea would work. I assume we would want the same 10 day written notice for cancellation that governs in paragraph 6. An option to the existing contract is also possibility we may wish to explore. Jan, it may be a good idea to have you and I sit in on a conference call with our counterparts at B & V to go over the language restructuring. I think you and I may wish to meet beforehand to cover everything we wish to exempt from the intellectual property rights clause. Thanks Kevin From: Jan Zimmerman Sent: Monday, July 12, 2010 2:29 PM To: Randy Hayman; Kevin Marquitz Subject: Black & Veatch Rate Design Contract Jeff has the following questions: 1. Does B&V's intellectual property rights include the final deliverables (rate report, rate model data, written testimony etc.) provided to MSD. Should there be language exempting this material? 2, Right to subcontract, Not sure what his issue is, but I've added that MSD's written approval is required for B&V to engage a subcontractor. 3. The dollar liability limit is $100,000 per occurrence. This should be at least $150,000, the value of the contract correct? I revised accordingly 4. Corrected a small typo in sentence "c" of Exhibit A. 5. Terms of contract ends 6/30/11. Rate work will continue beyond this date. Can we include language that 7/13/2010 Page 2 of 2 specifies MSD can extend on a month -to -month basis as long as $150,000 contract award is not exceeded without BoT action? If so, we need to add language. I've attempted to add these revisions. See the changes in Word highlight. We need to get a final version and re - signatures from B&V as soon as we can. Thanks Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 7/13/2010 Page 1 of 1 Jan Zimmerman From: Jan Zimmerman Sent: Monday, July 12, 2010 2:29 PM To: Randy Hayman; Kevin Marquitz Subject: Black & Veatch Rate Design Contract Jeff has the following questions: 1. Does B&V's intellectual property rights include the final deliverables (rate report, rate model data, written testimony etc.) provided to MSD. Should there be language exempting this material? 2. Right to subcontract. Not sure what his issue is, but I've added that MSD's written approval is required for B&V to engage a subcontractor. 3. The dollar liability limit is $100,000 per occurrence. This should be at least $150,000, the value of the contract correct? I revised accordingly 4. Corrected a small typo in sentence "c" of Exhibit A. 5. Terms of contract ends 6/30/11. Rate work will continue beyond this date. Can we include language that specifies MSD can extend on a month -to -month basis as long as $150,000 contract award is not exceeded without BoT action? If so, we need to add language. I've attempted to add these revisions. See the changes in Word highlight. We need to get a final version and re - signatures from B&V as soon as we can. Thanks Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 7/12/2010 CONSULTING SERVICES AGREEMENT This Agreement (Agreement), effective July 1, 2010, is by and between the METROPOLITAN ST. LOUIS SEWER DISTRICT (CLIENT) and BLACK & VEATCH CORPORATION (CONSULTANT). CONSULTANT shall perform the Scope of Services (Services) set forth in Exhibit A --Scope of Services and CLIENT shalt pay CONSULTANT in accordance with the compensation provisions set forth in Exhibit A. CONSULTANT warrants that it shall perform the Services inaocordance with the standards of care and diligence normally practiced by recognized consulting firms inperforming services of a similar name. No other warranty, express or implied, is included in this Agreement or in any drawing specification, report, or opinion produced pursuant to this Agreement. 2. CONSULTANT shall maintain in force, during the period that Services are performed, workers' compensation insurance in accordance with the laws of the states having jurisdiction over CONSULTANTS employees who are engaged in the Services and employer's liability insurance with a limit of $150,00Qeach occurrence and in the aggregate. CONSULTANT also shall _ maintain commercial general liability insurance with a limit of -81,006,6o6 per occurrence and in the aggregate; automobile liability insurance with combined single limit of $1,000,000; and professional liability insurance with per occurrence and aggregate limits of$1,000,000. 3. CONSULTANT shall indemnify CLIENT againstany and all claims, demands and causes of action for bodily injury to or death of persons or for damage to or destruction of third -party property resulting solely from any and all negligent physical acts of CONSULTANT while at CLIENTS facility, CLIENT and CONSULTANT hereby waive all claims for property damage against the other, however such damage may be caused, including without limitation the negligence or fault of the other party, and shall require their insurers to waive subrogation rights against the other party under any applicable policy of property insurance. Deleted: 00,000 4. In performance of the Services, it is understood that CONSULTANT may be supplied with certain information and/or data by CLIENT and/or others, and that CONSULTANT will rely on such information. It is agreed that the accuracy of such information is not within CONSULTANTS control and CONSULTANT shall not be liable for its accuracy, nor for its verification, except to the extent that such verification is expressly a part of CONSULTANTS Scope of Services. 5. CONSULTANT shall retain its rights in its standard drawing details, designs, specifications, databases, computer software, models and any other proprietary property. Rights to intellectual property developed, utilized, or modified inthe performance of the Services shall remain the property of the CONSULTANT with the exception of deliverables as required byCLIENT, _ _ _Del . 6. CLIENT may, with or without cause, terminate the Services at any time upon ten working days written notice to CONSULTANT. In such case, CONSULTANT shall be paid costs incurred and fees earned to the date of termination and through demobilization and neither party shall be entitled to any other compensation or damages from the other. 7. CLIENT may audit and inspect CONSULTANTS records and accounts covering reimbursable costs for a period of 3 years following the completion of CONSULTANTS Services. The purpose of any such audit shall be only for verification of such coats. CONSULTANT shall not be required to keep records of or provide access to those of its costs expressed as fixed rates, a lump sum, or as a percentage of other costs. 8. CONSULTANTS opinions, estimates, projections, and forecasts of current and future costs, revenues, other levels of any sort, and events shall be made on the basis of available information and CONSULTANTS expertise and qualifications as a professional. CONSULTANT does nor warrant or guarantee that its opinions, estimates, projections or forecasts of current and future levels and events will not vary from CLIENTs estimates or forecasts or from actual outcomes. 9. The parties agree to look solely to each other with respect to performance oft is Agreement. CONSULTANT may subcontract portions of the Services to its successor, related or affiliated entities with the written approval of CLiENT.'Nothing in this _ _ _ _ Agreement shall be construed to give any rights or benefits to anyone other than CLIENT and CONSULTANT. Except for CLIENTS obligation to make payments, neither party shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond such party's reasonable control. 10. Neither party shall be liable to the other party for loss of profits or revenue; loss of use; loss of opportunity; loss of goodwill; cost of substitute facilities, goods or services; cost of capital; cost of replacement power, governmeotal and regulatory sanctions; and claims of customers for such damages; or for any special, consequential, incidental, indirect or exemplary damages whether a claim for any such loss arises out of breach of contract, warranty, tort (including negligence), strict liability, indemnity, or another theory. CONSULTANTs total aggregate liability under this Agreement for any reason whatsoever shall not exceed the compensation received by CONSULTANT under this Agreement, and CLIENT, to such extent as may be permitted by law, agrees to release, defend, indemnify, and hold CONSULTANT harmless from and against any and all further liability in excess thereof arising in any manner from the Services, In the event such provision is determined to exceed the maximum scope allowed by law, said provision shall be interpreted and enforced so as to preserve the indemnity, release or limitation tote maximum extent allowable. The warranties, obligations, liabilities andremedies ofthe parties, as provided herein, are exclusive and in lieu of any others available at law, equity or otherwise. Indenmifications against, releases front, and limitations of liability and waivers of subrogation shall apply notwithstanding the fault, negligence (whether active, passive, joint or concurrent), strict liability or other theory of legal liability of the party indemnified, released or whose liability is limited and shall be effective to, and only to, the maximum extent allowable by law. This Agreement and the attached Exhibit constitute the entire Agreemeit No other representations of any kind, oral or otherwise, shall have any effect This Agreement shall be governed by the laws of the state of Missouri, without giving effect to the principles thereof relating to conflicts of law. Deleted:. IN WITNESS WHEREOF, Client and Consultant have signed this Agreement. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By By Jeffrey L. Theerman Peggy L. Howe Executive Director Vice President Date Date ATTEST: Karl J. Tymincki Secretary -Treasurer Approved as to Legal Form Office of General Counsel Randy E. Hayman General Counsel I certify that this expenditure is within the appropriation to which it is to be charged, and that there is an unencumbered balance in the appropriation sufficient to pay this obligation or so much of it as may be payable during the current fiscal year. Janice M. Zimmerman Director of Finance Date EXHIBIT A CONSULTING SERVICES AGREEMENT Dated July 1, 2010 Between METROPOLITAN ST. LOUIS SEWER DISTRICT ("Client") And BLACK & VEATCH CORPORATION ("Consultant") A. Scope of Services - Consultant will provide rate design development, rate report generation and ..npert witness testimony services required during anticipated 2010/2011 Rate Commission proceedings B. Term - The term of this Agreement shall be for one (1) year commencing on July I, 2010 and terminating on June 30, 2011. Work is going to continue past 6130/11 Can we add to contract ability to extend on a month -to -month basis after 6/30/11 although ordinance is silent on this and given the approved contract amount of 5150,000 does not change's C. Compensation - Client will pay, and Consultant will accept compensation for services provided based on the following fee basis: Compensation for the Services provided by this Agreement shall be at the billing rates specified below plus direct expenses at out -of pocket costs. Direct expenses include materials and support services costs and travel axpeases, Materials and support services costs include such items as computer time, long distance telephone charges, postage, report reproduction costs and other miscellaneous direct costs. Direct expenses shall be itemized on invoices submitted to Client for payment. Supporting documentation for direct expenses shall be made available to Client for verification at Client's request. The maximum amennt payable to the Consultant for services provided by this Agreement shall not exceed one hundred fi ftt3thousand dollars (5150,0001 without further Client authorization. Senior Vice President $325/hour Vice President (Principal -in -Charge) $305/hour Director $275/hour Principal (Project Manager) $240/hour Manager $205/hour Consultant $170/hour Senior Analyst $140/hour .Analyst $110/hour Clerical/Administrative Support $ 80/hour D. Method of Payment - Payments to be made to Consultant under this Agreement shall be electronically transferred either by ACH, specifically in CCD+ or CDC format, or wire transfer to the bank account and in accordance with the bank instructions identified in Consultant's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields or the ACH addenda information. E. Client Rekponsibilities - Client shall furnish,. as required by the work and not at tbe expense ofthe Consultant, the following items. 1. Make available to the Consultant all records, reports, maps, and other data pertinent to the provision of the Services required under this Contract 2. Examine all analyses, reports and other documents submitted by Consultant for Clientreview and render decisions promptly to prevent delay to the Consultant. 3. Designate one person as the Client representative (Project Manager) withrespect to all Services to be rendered under this Contract, This individual shall have authority to transmitinstructions, receive information and to interpret and define the Client's policies and decisions pertinent to the Consultant's services IN WITNESS WHEREOF, the parties have executed this Exhibit A on the date(s) indicated below. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By: Jeffrey L. Theerman Executive Director By, Peggy L. Howe Vice President Date: Date 3 Deleted: twenty Page 1 of 1 Jan Zimmerman From: Jan Zimmerman Sent: Thursday, July 08, 2010 1:50 PM To: 'Barber, Keith D.' Subject: Rate Work Contract Here is the contract ready for signature. I've used the B&V format you sent that we used for the prior rate support work. MSD Legal has reviewed and is ok. Please get the appropriate signatures on your end. NEED THREE ORIGINALS. Send them back via FedX and I'II get the sigs here. Once fully executed, I'll get you B&V's original. Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 7/8/2010 CONSULTING SERVICES AGREEMENT This Agreement (Agreement), effective July 1, 2010, is by and between the METROPOLITAN ST. LOUIS SEWER DISTRICT (CLIENT) and BLACK & VEATCH CORPORATION (CONSULTANT). CONSULTANT shall perform the Scope of Services (Services) set forth in Exhibit A --Scope of Services and CLIENT shall pay CONSULTANT in accordance with the compensation provisions set forth in Exhibit A. CONSULTANT warrants that it shall perform the Services in accordance with the standards of care and diligence normally practiced by recognized consulting firms in performing services of a similar nature. No other warranty, express or implied, is included in this Agreement or in any drawing, specification, report, or opinion produced pursuant to this Agreement. 2. CONSULTANT shall maintain in force, during the period that Services are performed, workers' compensation insurance in accordance with the laws of the states having jurisdiction over CONSULTANT's employees who are engaged in the Services and employer's liability insurance with a limit of $100,000 each occurrence and in the aggregate. CONSULTANT also shall maintain commercial general liability insurance with a limit of $1,000,000 per occurrence and in the aggregate; automobile liability insurance with combined single limit of $1,000,000; and professional liability insurance with per occurrence and aggregate limits of $1,000,000. 3. CONSULTANT shall indemnify CLIENT against any and all claims, demands and causes of action for bodily injury to or death of persons or for damage to or destruction of third -party property resulting solely from any and all negligent physical acts of CONSULTANT while at CLIENT's facility. CLIENT and CONSULTANT hereby waive all claims for property damage against the other, however such damage may be caused, including without limitation the negligence or fault of the other party, and shall require their insurers to waive subrogation rights against the other party under any applicable policy of property insurance. 4. In performance of the Services, it is understood that CONSULTANT may be supplied with certain information and/or data by CLIENT and/or others, and that CONSULTANT will rely on such information. It is agreed that the accuracy of such information is not within CONSULTANT's control and CONSULTANT shall not be liable for its accuracy, nor for its verification, except to the extent that such verification is expressly a part of CONSULTANT's Scope of Services. 5. CONSULTANT shall retain its rights in its standard drawing details, designs, specifications, databases, computer software, models and any other proprietary property. Rights to intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of the CONSULTANT. 6. CLIENT may, with or without cause, terminate the Services at any time upon ten working days written notice to CONSULTANT. In such case, CONSULTANT shall be paid costs incurred and fees earned to the date of termination and through demobilization and neither party shall be entitled to any other compensation or damages from the other. 7. CLIENT may audit and inspect CONSULTANTS records and accounts covering reimbursable costs for a period of 3 years following the completion of CONSULTANT'S Services, The purpose of any such audit shall be only for verification of such costs. CONSULTANT shall not be required to keep records of or provide access to those of its costs expressed as fixed rates, a lump sum, or as a percentage of other costs. 8. CONSULTANT's opinions, estimates, projections, and forecasts of current and future costs, revenues, other levels of any sort, and events shall be made on the basis of available information and CONSULTANT's expertise and qualifications as a professional. CONSULTANT does not warrant or guarantee that its opinions, estimates, projections or forecasts of current and future levels and events will not vary from CLIENT's estimates or forecasts or from actual outcomes. 9. The parties agree to look solely to each other with respect to performance of this Agreement. CONSULTANT may subcontract portions of the Services to its successor, related or affiliated entities. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than CLIENT and CONSULTANT. Except for CLIENT'S obligation to make payments, neither party shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond such party's reasonable control. 10. Neither party shall be liable to the other party for loss of profits or revenue; loss of use; loss of opportunity; loss of goodwill; cost of substitute facilities, goods or services; cost of capital; cost of replacement power, governmental and regulatory sanctions; and claims of customers for such damages; or for any special, consequential, incidental, indirect or exemplary damages whether a claim for any such loss arises out of breach of contract, warranty, tort (including negligence), strict liability, indemnity, or another theory. CONSULTANT's total aggregate liability under this Agreement for any reason whatsoever shall not exceed the compensation received by CONSULTANT under this Agreement, and CLIENT, to such extent as may be permitted by law, agrees to release, defend, indemnify, and hold CONSULTANT harmless from and against any and all further liability in excess thereof arising in any manner from the Services. In the event such provision is determined to exceed the maximum scope allowed by law, said provision shall be interpreted and enforced so as to preserve the indemnity, release or limitation to the maximum extent allowable. The warranties, obligations, liabilities and remedies ofthe parties, as provided herein, are exclusive and in lieu of any others available at law, equity or otherwise. Indemnifications against, releases from, and limitations of liability and waivers of subrogation shall apply notwithstanding the fault, negligence (whether active, passive, joint or concurrent), strict liability or other theory of legal liability ofthe party indemnified, released or whose liability is limited and shall be effective to, and only to, the maximum extent allowable by law. This Agreement and the attached Exhibit constitute the entire Agreement. No other representations of any kind, oral or otherwise, shall have any effect. This Agreement shall be governed by the laws of the state of Missouri, without giving effect to the principles thereof relating to conflicts of law. 1 IN WITNESS WHEREOF, Client and Consultant have signed this Agreement. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By By Jeffrey L. Theerman Executive Director Peggy L. Howe Vice President Date Date ATTEST: Karl J. Tyminski Secretary -Treasurer Approved as to Legal Form Office of General Counsel Randy E. Hayman General Counsel I certify that this expenditure is within the appropriation to which it is to be charged, and that there is an unencumbered balance in the appropriation sufficient to pay this obligation or so much of it as may be payable during the current fiscal year. Janice M. Zimmerman Director of Finance Date 2 EXHIBIT A CONSULTING SERVICES AGREEMENT Dated July 1, 2010 Between METROPOLITAN ST. LOUIS SEWER DISTRICT ("Client") And BLACK & VEATCH CORPORATION ("Consultant") A. Scope of Services — Consultant will provide rate design development, rate report generation and expert witness testimony services required during anticipated 2010/2011 Rate Commission proceedings. B. Term — The term of this Agreement shall be for one (1) year commencing on July 1, 2010 and terminating on June 30, 2011. C. Compensation — Client will pay, and Consultant will accept compensation for services provided based on the following fee basis: Compensation for the Services provided by this Agreement shall be at the billing rates specified below plus direct expenses at out -of pocket costs. Direct expenses include materials and support services costs and travel expenses. Materials and support services costs include such items as computer time, long distance telephone charges, postage, report reproduction costs and other miscellaneous direct costs. Direct expenses shall be itemized on invoices submitted to Client for payment. Supporting documentation for direct expenses shall be made available to Client for verification at Client's request. The maximum amount payable to the Consultant for services provided by this Agreement shall not exceed twenty thousand dollars ($150,000) without further Client authorization. Senior Vice President $325/hour Vice President (Principal -in -Charge) $305/hour Director $275/hour Principal (Project Manager) $240/hour Manager $205/hour Consultant $170/hour Senior Analyst $140/hour Analyst $110/hour Clerical/Administrative Support $ 80/hour D. E. Method of Payment - Payments to be made to Consultant under this Agreement shall be electronically transferred either by ACH, specifically in CCD+ or CTX format, or wire transfer to the bank account and in accordance with the bank instructions identified in Consultant's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields or the ACH addenda information. Client Responsibilities — Client shall furnish, as required by the work and not at the expense of the Consultant, the following items. 1. Make available to the Consultant all records, reports, maps, and other data pertinent to the provision of the Services required under this Contract. 2. Examine all analyses, reports and other documents submitted by Consultant for Client review and render decisions promptly to prevent delay to the Consultant. 3. Designate one person as the Client representative (Project Manager) with respect to all Services to be rendered under this Contract. This individual shall have authority to transmit instructions, receive information and to interpret and define the Client's policies and decisions pertinent to the Consultant's services. IN WITNESS WHEREOF, the parties have executed this Exhibit A on the date(s) indicated below. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By: By: Jeffrey L. Theerman Peggy L. Howe Executive Director Vice President Date: Date: 3 ,6ty Janice Fenton From: Jan Zimmerman Sent: Wednesday, July 07, 2010 3:30 PM To: Janice Fenton Subject: FW: Rate Study Draft Contract Attachments: 2010 CSA Form.doc; Draft Rate Study Contract.doc HC Janice M. Zimmerman Director of Finance Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 314-768-6299 From: Barber, Keith D. [mailto:barberkd@bv.com] Sent: Wednesday, July 07, 2010 1:06 PM To: Jan Zimmerman Subject: Rate Study Draft Contract Page 1 of 1 Attached is a draft contract accepted by the District for our 2004 model review project. I changed the date, added the term limit, changed the billing rates and revised the method of payment to reflect accounting's current electronic preference. Also attached is our current standard contract which is what the lawyers prefer but I think the revised 2004 contract would be acceptable. Keith D. Barber BLACK & VEATCH CORPORATION - Enterprise Management Solutions Desk: (913) 458-3675 Mobile: (913) 626-4985 Fax: (913) 458-3817 E-mail: barberkd@bv.com BullaYng a World of MfferenceT M Please note that the information and attachments in this email are intendedfor the exclusive use of the addressee and may contain confidential or privileged information. Ifyou are not the intended recipient, please do not forward, copy or print the message or its attachments. Notify me at the above address, and delete this message and any attachments. Thank you. 7/8/2010 e, t- k; tit' 4'(',.`' t1 CONSULTING SERVICES AGREEMENT L ,5,,,,,..<1\70/ Nfl `D This Agreement, effective , 20 e is between ("Client") and BLACK & re 4 ,, VEATCH CORPORATION ("Consultant"). Consultant shall perform Services in accordance with written Requests for Services .,' (Requests) issued by Client and agreed to by Consultant during the term of this Agreement, which shall be attached as separate Exhibits 0'.,, A. Consultant shall accept or decline a Request as promptly as practicable under the circumstances. 1. Consultant will perform the Services in accordance with the standards of care and diligence normally practiced by recognized consulting companies in performing services of a similar nature. If; during the six-month period following the earlier of temiination or completion of the Services under the applicable Request for Service, it is shown there is an error in the Services caused solely by Consultant's failure to meet such standards, and Client has promptly notified Consultant in writing of any such error within that period, Consultant shall perform, at Consultant's cost, such corrective consulting services within the original Request for Service as may be necessary to remedy such error. EXCEPT AS PROVIDED IN THIS ARTICLE, CONSULTANT MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES AND CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This Article governs, modifies, and supersedes any other terms in this Agreement which may be construed to address warranties or guarantees or the quality of the Services. 2. Reports and other documents which Consultant prepares and delivers to Client pursuant to this Agreement shall become the property of Client when Consultant has been compensated for Services rendered. Nothing contained in this Section shall be construed as limiting or depriving Consultant of its rights to use its basic knowledge and skills to design or carry out other projects or work for itself or others, whether or not such other projects or work are similar to the work to be performed pursuant to this Agreement. Consultant shall have the right to retain and use copies of drawings, documents, and other data furnished or to be furnished by Consultant and any non -confidential information contained therein. At all times, each party shall retain all of its rights in its drawing details, designs, specifications, databases, models, computer software, copyrights, trade and service marks, patents, trade secrets, and any other proprietary property. Rights to intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of Consultant. Client shall not acquire any rights to any of Consultant's, its subcontractors' or vendors' proprietary computer software that may be used in connection with the Services except as expressly provided in the Request or as may be separately agreed. Files delivered in electronic medium may not work on systems and software different than those with which they were originally produced. Consultant makes no warranty as to the compatibility of these files with any other system or software. Because of the potential degradation of electronic medium over time, in the event of a conflict between any specifications, reports, or other documents and electronic files, the original will govern. 3. Documents, including, but not limited to, drawings, specifications, reports, electronic files, and computer software prepared by Consultant pursuant to this Agreement, are instruments of service in respect to the project. They are not intended or represented to be suitable for reuse by Client or others on extensions of the project or on any other project. Any reuse without prior written approval, and verification or adaptation by Consultant for the specific purpose intended will be at Client's sole risk and without liability or legal exposure to Consultant. Client shall defend, indemnify, and hold harmless Consultant against all claims, losses, damages, injuries, and expenses, including attorneys' fees, arising out of or resulting from such reuse. Any approval, and verification or adaptation of documents will entitle Consultant to additional compensation at rates customarily charged by Consultant for such services. No documents or any information contained therein, or otherwise supplied by Consultant in connection with the Services, shall be released or used by Client in connection with any proxy, proxy statement, proxy soliciting material, prospectus, official statement, offering memorandum, Securities Registration Statement, or any sales or due diligence or similar document without the express written approval of Consultant, except as may be required by law. Consultant may include its standard commercial third -party disclaimers in its Report. Any information shared with the Client prior to the release of the Report is superseded by the Report As such, Client may not rely on, or distribute to third -parties, any entails, drafts, or oral statements made prior to the issuance of the Report. Client's distribution of the Report to a third party shall be at its own risk, and Client agrees to indemnify and hold Consultant harmless against any and all claims Consultant receives from any such third party based upon its access to, or reliance upon, Consultant's Report. 4. Consultant shall maintain in force, during the period that Services are performed, workers' compensation insurance in accordance with the laws of the states having jurisdiction over Consultant's employees who are engaged in the Services and employer's liability insurance with a limit of S100,000 each occurrence and in the aggregate. Consultant also shall maintain commercial general liability insurance with a limit of $1,000,000 per occurrence and in the aggregate; automobile liability insurance with combined single limit of $1,000,000; and professional liability insurance with per occurrence and aggregate limits of $1,000,000. 5. Consultant shall indemnify Client against any and all claims, demands and causes of action for bodily injury to or death of persons or for damage to or destruction of property (other than property of Client or constriction work in progress, for which Client shall have responsibility) resulting solely from any and all negligent physical acts of Consultant while at Client's facility. The parties waive all claims for property damage, and shall require their insurers to waive subrogation rights against the other party under any applicable policy of property insurance. December 3, 2008 - 1 - 6. In performance of the Services, it is acknowledged that Consultant may be supplied with certain information and/or data by Client and/or others, and that Consultant will rely on such information. Therefore, the accuracy of such information is not within Consultant's control and Consultant shall not be liable for its accuracy, nor for its verification unless otherwise provided in the Request. Since Consultant has no control over the cost of labor, materials, or equipment furnished by others, or over the resources provided by others (including Client) to meet project schedules, Consultant's opinion of probable costs and of project schedules shall be made on the basis of experience and qualifications as a professional consultant. Consultant does not guarantee that proposals, bids, revenues, costs, and other cash requirements, or actual operating and project costs will not vary from Consultant's estimates or that actual schedules will not vary from Consultant's projected schedules. 7. Client may, with or without cause, terminate the Services at any time upon 10 working days written notice to Consultant. In such case, Consultant shall be paid costs incurred and fees earned to the date of termination and through demobilization and neither party shall be entitled to any other compensation or damages from the other. At all times, each party shall retain all of its rights in its drawing details, designs, specifications, databases, computer software, copyrights, trade and service marks, patents, trade secrets, and any other proprietary property. 8. Client may audit and inspect Consultant's records and accounts covering fees and reimbursable costs for a period of six months following the completion of Consultant's Services. The purpose of any such audit shall be only for verification of such costs. Consultant shall not be required to keep records of or provide access to those of its costs expressed as fixed rates, a lump sum, or as a percentage of other costs. 9. Neither party shall be liable to the other party for loss of profits or revenue; loss of use; loss of opportunity; loss of goodwill; cost of substitute facilities, goods or services; cost of capital; cost of replacement power; governmental and regulatory sanctions; and claims of customers for such damages; or for any special, consequential, incidental, indirect or exemplary damages whether a claim for any such loss arises out of breach of contract, warranty, tort (including negligence), strict liability, indemnity, or another theory. Except for an obligation to make payments, neither party shall be in default to the extent any nonperformance is caused by a circumstance beyond such party's reasonable control. The warranties, obligations, liabilities and remedies of the parties, as provided herein, are exclusive and in lieu of any others available at law or in equity. Consultant's total aggregate liability under this Agreement shall not exceed the compensation received by Consultant under the applicable Request for Services. To the fullest extent allowed by law, releases from, and limitations of liability shall apply notwithstanding the breach of contract, tort including negligence, strict liability or other theory of legal liability of the party released or whose liability is limited. Consultant may subcontract portions of the Services to its related entities. 10. During the term of this Agreement, and for a period of six months following any termination or expiration hereof Client agrees that it will not, hire, or solicit any employee of Consultant who performed services hereunder, to become employees or independent contractors of Client or such other person or entity, excluding employees who are responding to a general solicitation for employment advertised by Client. If Client does hire a Consultant employee as prohibited herein, Client shall be liable to Consultant for 60% of such employee's first year salary (including any signing bonuses or reimbursable relocation costs). Client shall be obligated to disclose such amounts to Consultant and Consultant shall immediately invoice Client for such amount to be paid by Client within 10 business days of receipt of Consultant's invoice. Failure to pay such amount when due shall be considered a breach of this Agreement by Client and entitle Consultant to any and all remedies available under this contract, at law or in equity. 11. Client understands that Consultant will not provide legal or tax advice or opinions, and Client will seek such advice and opinions from its attomeys and tax advisors. This Agreement and the attached Exhibits constitute the entire Agreement. No other representations of any kind, oral or otherwise, shall have any effect. This Agreement shall be governed by the laws of the state of Missouri, notwithstanding the operation of any conflict or choice of law statutes or decisional law to the contrary. CLIENT BLACK & VEATCH CORPORATION By: By: By: By: (Printed) (Printed) Title: Title: Leyai FM Approved App -raved Revievved Date Dal e December 3, 2008 - 2 - EXHIBIT A REQUEST FOR SERVICES CONSULTING SERVICES AGREEMENT Between And ("Client") Black & Veatch Corporation ("Consultant") Purs t to e terms and conditions of the Consulting Services Agreement executed and made effective as of the (5 I-- day of , 200 between 4 j/' ("Client") and Black & Veatch Corporation ("Con ltant"), ,tlient hereby requests Consultant perform and Consultant agrees to perform the following Services: Effective Date: This Exhibit A will be effective on 7// 20 / 0. A. Requested Services: 13. Commencement Date: Invoices are due upon receipt. D. Estimated Cost of the Services: E. Estimated Completion Date: F. Monthly Billing: Immediately upon execution of this Exhibit onsultant shall invoice Client for an advance payment of $ . (The final invoice will show a cr r the amount of the advance payment). Consultant is under no obligation to submit any deliverable until such advan payment is made. Conunencing on or about the first day of the calendar month following execution of this Agreement, and monthly thereafter, Consultant shall furnish Client with an invoice covering the Reimbursable Costs and Fee for services provided during the previous month and any interest due under this Agreement. Invoices may be submitted electronically by email to [email address provided by client]. In such event, the electronic copy of the invoice will be considered the official invoice and will not be followed by a hard copy invoice. Notwithstanding any other provision of the above -referenced Agreement, or this Exhibit A, Consultant is under no obligation to submit any deliverable if any invoice is more than 45 days outstanding. G. Method of Payment: Payments to be made to Consultant under this Agreement shall be electronically transferred either by ACH, specifically in CCD+ or CTX format, or wire transfer to the bank account and in accordance with the bank instructions identified in Consultant's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields or the ACH addenda information. H. Disputes: In the event Client disputes any invoice item, Client shall give Consultant written notice of such disputed item within 10 days after receipt of such invoice and shall pay to Consultant the undisputed portion of the invoice according to the provisions hereof. If Client fails to pay any invoiced amounts when due, interest will accrue on each unpaid amount at the rate of eighteen percent per annum, or the maximum amount allowed by law if less, from the date due until paid according to the provisions of this Agreement. Interest shall not be charged on any disputed invoice item which is finally resolved in Client's favor. Payment of interest shall not excuse or cure any default or delay in payment of amounts due. In the event Consultant refers this Agreement to a third party for collection or enforcement of its terms, Consultant shall be entitled to reimbursement for all costs and expenses incurred, including a reasonable attorneys' fee. In the event that Client has an unpaid invoice over 50 days past due, Consultant may, in addition to all other remedies available at law and equity, terminate this Request for Services. December 3, 2008 - 3 - This Request for Services and the above -referenced Agreement constitute the complete understanding of the parties with respect to the Services specified herein. Terms and conditions contained in purchase orders, work orders, or other documents issued by Client with respect to the Services shall be of no force and effect, IN WITNESS WHEREOF, the parties have executed this Request for Services on the date(s) indicated below. CLIENT BLACK & VEATCH CORPORATION By: By: By: By: (Printed) (Printed) Title: Title: Date: Date: Legal PM Approved -- AppT owed Reviewed Date Date December 3, 2008 - 4 - CONSULTING SERVICES AGREEMENT This Agreement (Agreement), effective July 1, 2010, is by and between the METROPOLITAN ST. LOUIS SEWER DISTRICT (CLIENT) and BLACK & VEATCH CORPORATION (CONSULTANT). CONSULTANT shall perform the Scope of Services (Services) set forth in Exhibit A —Scope of Services and CLIENT shall pay CONSULTANT in accordance with the compensation provisions set forth in Exhibit A. 1. CONSULTANT warrants that it shall perform the Services in accordance with the standards of care and diligence normally practiced by recognized consulting firms in performing services of a similar nature. No other warranty, express or implied, is included in this Agreement or in any drawing, specification, report, or opinion produced pursuant to this Agreement. 2. CONSULTANT shall maintain in force, during the period that Services are performed, workers' compensation insurance in accordance with the laws of the states having jurisdiction over CONSULTANT's employees who are engaged in the Services and employer's liability insurance with a limit of $100,000 each occurrence and in the aggregate. CONSULTANT also shall maintain commercial general liability insurance with a limit of $1,000,000 per occurrence and in the aggregate; automobile liability insurance with combined single limit of $1,000,000; and professional liability insurance with per occurrence and aggregate limits of$1,000,000. 3, CONSULTANT shall indemnify CLIENT against any and all claims, demands and causes of action for bodily injury to or death of persons or for damage to or destruction of third -party property resulting solely from any and all negligent physical acts of CONSULTANT while at CLIENT's facility. CLIENT and CONSULTANT hereby waive all claims for property damage against the other, however such damage may be caused, including without limitation the negligence or fault of the other party, and shall require their insurers to waive subrogation rights against the other party under any applicable policy of property insurance. 4. In performance of the Services, it is understood that CONSULTANT may be supplied with certain information and/or data by CLIENT and/or others, and that CONSULTANT will rely on such information. It is agreed that the accuracy of such information is not within CONSULTANT's control and CONSULTANT shall not be liable for its accuracy, nor for its verification, except to the extent that such verification is expressly a part of CONSULTANT's Scope of Services. 5. CONSULTANT shall retain its rights in its standard drawing details, designs, specifications, databases, computer software, models and any other proprietary property. Rights to intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of the CONSULTANT. 6. CLIENT may, with or without cause, terminate the Services at any time upon ten working days written notice to CONSULTANT. In such case, CONSULTANT shall be paid costs incurred and fees eamed to the date of termination and through demobilization and neither party shall be entitled to any other compensation or damages from the other. 7. CLIENT may audit and inspect CONSULTANT'S records and accounts covering reimbursable costs for a period of 3 years following the completion of CONSULTANTS Services. The purpose of any such audit shall be only for verification of such costs. CONSULTANT shall not be required to keep records of or provide access to those of its costs expressed as fixed rates, a lump sum, or as a percentage of other costs. 8. CONSULTANT'S opinions, estimates, projections, and forecasts of current and future costs, revenues, other levels of any sort, and events shall be made on the basis of available information and CONSULTANT'S expertise and qualifications as a professional. CONSULTANT does not warrant or guarantee that its opinions, estimates, projections or forecasts of current and future levels and events will not vary from CLIENTs estimates or forecasts or from actual outcomes. 9. The parties agree to look solely to each other with respect to performance of this Agreement. CONSULTANT may subcontract portions of the Services to its successor, related or affiliated entities. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than CLIENT and CONSULTANT. Except for CLIENTS obligation to make payments, neither party shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond such party's reasonable control. 10. Neither party shall be liable to the other party for loss of profits or revenue; loss of use; loss of opportunity; loss of goodwill; cost of substitute facilities, goods or services; cost of capital; cost of replacement power; governmental and regulatory sanctions; and claims of customers for such damages; or for any special, consequential, incidental, indirect or exemplary damages whether a claim for any such loss arises out of breach of contract, warranty, tort (including negligence), strict liability, indemnity, or another theory. CONSULTANT's total aggregate liability under this Agreement for any reason whatsoever shall not exceed the compensation received by CONSULTANT under this Agreement, and CLIENT, to such extent as may be permitted by law, agrees to release, defend, indemnify, and hold CONSULTANT harmless from and against any and all further liability in excess thereof arising in any manner from the Services. In the event such provision is determined to exceed the maximum scope allowed by law, said provision shall be interpreted and enforced so as to preserve the indemnity, release or limitation to the maximum extent allowable, The warranties, obligations, liabilities and remedies of the parties, as provided herein, are exclusive and in lieu of any others available at law, equity or otherwise. Indemnifications against, releases from, and limitations of liability and waivers of subrogation shall apply notwithstanding the fault, negligence (whether active, passive, joint or concurrent), strict liability or other theory of legal liability of the party indemnified, released or whose liability is limited and shall be effective to, and only to, the maximum extent allowable by law. This Agreement and the attached Exhibit constitute the entire Agreement. No other representations of any kind, oral or otherwise, shall have any effect. This Agreement shall be governed by the laws of the state of Missouri, without giving effect to the principles thereof relating to conflicts oflaw. 1 IN WITNESS WHEREOF, Client and Consultant have signed this. Agreement. METROPOLITAN ST. LOUIS SEWER DISTRICT BLACK & VEATCH CORPORATION By By Jeffrey L. Theerman Executive Director Peggy L. Howe Vice President Date Date ATTEST: Karl J. Tyminski Secretary -Treasurer Approved as to Legal Form Office of General Counsel Randy E. Hayman General Counsel I certify that this expenditure is within the appropriation to which it is to be charged, and that there is an unencumbered balance in the appropriation sufficient to pay this obligation or so much of it as may be payable during the current fiscal year. Janice M. Zimmerman Director of Finance Date 2 EXHIBIT A CONSULTING SERVICES AGREEMENT Dated July 1, 2010 Between METROPOLITAN ST. LOUIS SEWER DISTRICT ("Client") And BLACK & VEATCH CORPORATION ("Consultant') A. Scope of Services — Consultant will provide rate design development, rate report generation and expert witness testimony services required during anticipated 2010/2011 Rate Commission proceedings. B. Term — The term of this Agreement shall be for one (1) year commencing on July 1, 2010 and terminating on June 30, 2011. //� J�j g�} -,.3 C. Compedsa� — Chien` t will pay, and Consultant will accept compensation for services provided based on the following fee basis: Co mpensation for the Services provided by this Agreement shall be at the billing rates specified below plus direct �y expenses at out -of pocket costs. Direct expenses include materials and support services costs and travel expenses. �r Materials and support services costs include such items as computer time, long distance telephone charges, postage, report reproduction costs and other miscellaneous direct costs. The maximum amount payable to the Consultant for services provided by this Agreement shall not exceed twenty thousand dollars ($150,000) without further Client /1 n16 fl authorization. D. Senior Vice President $325/hour Vice President (Principal -in -Charge) $305/hour Director $275/hour Principal (Project Manager) $240/hour Manager $205/hour Consultant $170/hour Senior Analyst $140/hour Analyst $110/hour Clerical/Administrative Support $ 80/hour Method of Payment - Payments to be made to Consultant under this Agreement shall be electronically transferred either by ACH, specifically in CCD-1- or CTX format, or wire transfer to the bank account and in accordance with the bank instructions identified in Consultant's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields or the ACH addenda information. E. Client Responsibilities — Client shall furnish, as required by the work and not at the expense of the Consultant, the following items. 1. Make available to the Consultant all records, reports, maps, and other data pertinent to the provision of the Services required under this Contract. 2. Examine all analyses, reports and other documents submitted by Consultant for Client review and render decisions promptly to prevent delay to the Consultant. 3, Designate one person as the Client representative (Project Manager) with respect to all Services to be rendered under this Contract. This individual shall have authority to transmit instructions, receive information and to interpret and define the Client's policies and decisions pertinent to the Consultant's services. IN WITNESS WHEREOF, the parties h executed this Exhibit A on the date(s) indicated below. yr.METROPOLITAN ST. LOUIS R DISTRICT BLACK & VEAT Peggy L. Howe Vice President Jot - V kt. J,v-y )(.LL ve 3