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HomeMy WebLinkAboutContractAGREEMENT FOR WINDSOR HILLS UTILITY IMPROVEMENTS PROJECT (WTR #27-04186) THIS AGREEMENT, dated for reference purposes only as February 9, 2022, is by and between the BHC Consultants a Washington coporation. The City and the Consultant are referred to collectively executed by the Parties, this Agreement is effective as of the last date signed by both parties. 1. Scope of Work: Consultant agrees to provide consulting and design and bidding services as specified in Exhibit A, which is attached and incorporated herein and may hereinafter Work 2. Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Workconsisting of additions, deletions or modifications.Any such changes to the Work shall be ordered by the City in writing and the Compensation shall be equitably adjusted consistent with the rates set forth in ExhibitCor as otherwise mutually agreed by the Parties. 3. Time of Performance:Consultant shall commence performance of the Agreement pursuant to the schedule(s) set forth in Exhibit B. All Work shall be performed by no later than May 31, 2023. 4. Compensation: A. Amount. Total compensation to Consultant for Work provided pursuant to this Agreement shall not exceed $702,491, plus any applicable state and local sales taxes. Compensation shall be paid based upon Work actually performed according to the rate(s) or amounts specified in Exhibit C. The Consultant agrees that any hourly or flat rate charged by it for its Work shall remain locked at the negotiated rate(s) unless otherwise agreed to in writing or provided in Exhibit C. Except as specifically provided herein, the Consultant shall be solely responsible for payment of any taxes imposed as a result of the performance and payment of this Agreement. B. Method of Payment. On a monthly or no less than quarterly basis during any quarter in which Workisperformed, the Consultant shall submit a voucher or invoice in aform specified by the City, including a description of what Work has been performed, the name of the personnel performing such Work, and any hourly labor charge rate for CAG-22-038 PAGE 2 OF 10 such personnel. The Consultant shall also submit a final bill upon completion of all Work. Payment shall be made by the City for Work performed within thirty (30) calendar days after receipt and approval by the appropriate City representative of the voucher or invoice. If the does not meet the requirements of this Agreement, the Consultant will correct or modify its performance to comply with the Agreement. The City may withhold payment for work that does not meet the requirements of this Agreement. C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by the City of any remedies it may have against the Consultant for failure of the Consultant to perform the Work or for any breach of this Agreement by the Consultant. D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City shall not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 5. Termination: A. The City reserves the right to terminate this Agreement at any time, with or without cause by giving ten(10) calendar of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the Consultant pursuant to this Agreement shall be submitted to the City, if any are required as part of the Work. B. In the event this Agreement is terminated by the City, the Consultant shall be entitled to payment for all hours worked to the effective date of termination, less all payments previously made. If the Agreement is terminated by the City after partial performance of Work for which the agreed compensation is a fixed fee, the City shall pay the Consultant an equitable share of the fixed fee. This provision shall not prevent the City from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement and such charges due to the City shall be deducted from the final payment due the Consultant. No payment shall be made by the City for any expenses incurred or work done following the effective date of termination unless authorized in advance in writing by the City. 6. Warranties And Right To Use Work Product : Consultant represents and warrants that Consultant will perform all Work identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and professional standards PAGE 3 OF 10 and laws. Compliance with professional standards includes, as applicable, performing the Work in compliance with applicable City standards or guidelines (e.g. design criteria and Standard Plans for Road, Bridge and Municipal Construction). Professional engineers shall certify engineering plans, specifications, plats, and reports, as applicable, pursuant to RCW 18.43.070. Consultant further represents and warrants that all final work product created for and delivered to the City pursuant to this Agreement shall be the original work of the Consultant and free from any intellectual property encumbrance which would restrict the City from using the work product. Consultant grants to the City a non- exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and display all final work product produced pursuant to this Agreement. adaptation, modification or use of the final work products other than for the purposes of this Agreement shall be without liability to the Consultant. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Record Maintenance: The Consultant shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement. The Consultant agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 8. Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Consultant shall make a due diligent search of all records in its possession or control relating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Consultant believes said records need to be protected from disclosure, it may, at xpense, seek judicial protection. Consultant shall indemnify, defend, or litigation related to a Public Records Act request for which Consultant has responsive records and for which Consultant has withheld records or information contained therein, or not provided them to the City in a timely manner. Consultant shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Independent Contractor Relationship: A. The Consultant is retained by the City only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the Consultant and the City PAGE 4 OF 10 during the period of the Work shall be that of an independent contractor, not employee. The Consultant, not the City, shall have the power to control and direct the details, manner or means of Work. Specifically, but not by means of limitation, the Consultant shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the Work. Consultant shall retain the right to designate the means of performing the Work covered by this agreement, and the Consultant shall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the Consultant is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the City. B. The City shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to Consultant or any employee of the Consultant. C. If the Consultant is a sole proprietorship or if this Agreement is with an individual, the Consultant agrees to notify the City and complete any required form if the Consultant retired under a State of Washington retirement system and agrees to indemnify any 10. Hold Harmless: The Consultant agrees to release, indemnify, defend, and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, losses, fines, fees, penalties, by any and all persons or entities, arising from, resulting from, or related to the negligent acts, errors or omissions of the Consultant in its performance of this Agreement or a breach of this Agreement by Consultant, except for that portion of the claims caused by Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real mages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the liability shall be only to the extent PAGE 5 OF 10 It is further specifically and expressly understood that the indemnification provided in Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 11. Gifts and Conflicts:bit City employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction. To ensure compliance give a gift of any kind to City employees or officials. Consultant also confirms that Consultant does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in selecting the Consultant, negotiating or administering this Work. 12. City of Renton Business License: Unless exempted by the Renton Municipal Code, t Consultant shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: https://www.rentonwa.gov/Tax Information regarding State business licensing requirements can be found at: https://dor.wa.gov/doing-business/register-my-business 13. Insurance: Consultant shall secure and maintain: A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. B. In the event that Work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability, Errors and Omissions coverage shall be provided with minimum limits of $1,000,000 per occurrence. "Professional Services", for the purpose of this section, shall mean any Work provided by a licensed professional or Work that requires a professional standard of care. C. State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single PAGE 6 OF 10 behalf of the City, beyond normal commutes. E. Consultant shall name the City as an Additional Insured on its commercial general liability policy on a non- not be a source for payment of any Consultant liability, nor shall the maintenance of any insurance required by this Agreement be construed to limit the liability of recourse to any remedy available at law or in equity. F. proper endorsements, shall be delivered to the City before performing the Work. G. Consultant shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. 14. Delays: Consultant is not responsible for delays caused by factors beyond the ble controloccur, the City agrees the Consultant is not responsible for damages, nor shall the Consultant be deemed to be in default of the Agreement. 15. Successors and Assigns: Neither the City nor the Consultant shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent of the other. 16. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, by facsimile or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt, EXCEPT facsimile delivery will be deemed to have commenced on the first business day following transmission. Email and telephone may be used for purposes of administering the Agreement, but should not be used to give any formal notice required by the Agreement. CITY OF RENTON Abdoul Gafour 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-7210 agafour@rentonwa.gov Fax: (425) 430-7241 CONSULTANT Becca Ochiltree 1601 Fifth Avenue Suite 500 Seattle, WA 98101 Phone: (206) 505-3400 becca.ochiltree@bhcconsultants.com PAGE 7 OF 10 17. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Consultant agrees as follows: A. with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Consultant will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If the Consultant fails to c -discrimination provisions, the City shall have the right, at its option, to cancel the Agreement in whole or in part. D. The Consultant is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 18. Miscellaneous:The parties hereby acknowledge: A. The City is not responsible to train or provide training for Consultant. B. Consultant will not be reimbursed for job related expenses except to the extent specifically agreed within the attached exhibits. C. Consultant shall furnish all tools and/or materials necessary to perform the Work except to the extent specifically agreed within the attached exhibits. D. In the event special training, licensing, or certification is required for Consultant to provide Work he/she will acquire or maintain such at his/her own expense and, if PAGE 8 OF 10 Consultant employs, sub-contracts, or otherwise assigns the responsibility to perform the Work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. E. This is a non-exclusive agreement and Consultant is free to provide his/her Work to other entities, so long as there is no interruption or interference with the provision of Work called for in this Agreement. F. Consultant is responsible for his/her own insurance, including, but not limited to health insurance. G. Consultant is that for any persons employed by the Consultant. 19. Other Provisions: A. Approval Authority. Each individual executing this Agreement on behalf of the City and Consultant represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Consultant. B. General Administration and Management.project manager is Abdoul Gafour, Water Utility Engineering Manager. In providing Work, Consultant shall C. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Consultant proposals and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent a Consultant prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. E. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of all perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the PAGE 9 OF 10 other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Consultant hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Consultant is a foreign corporation not registered with the State of Washington. H. Severability. part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. I. Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. J. Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Work this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M. Waivers. failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either the City or Consultant from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. PAGE 10 OF 10 N. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date last signed by the Parties below. CITY OF RENTON By:_____________________________ CONSULTANT By:____________________________ Armondo Pavone Mayor Ronald A. Dorn President _____________________________ Date _____________________________ Date Attest _____________________________ Jason A. Seth City Clerk Approved as to Legal Form By: __________________________ Shane Moloney City Attorney Contract Template Updated 5/21/2021 2/9/2022 Approved by Cheryl Beyer via 1/6/2022 email 2022 Schedule of Charges Billing Title Hourly Billing Rates Principal Engineer $260 - $300 Senior Structural Engineer $250 - $270 Senior Electrical Engineer $240 - $270 Senior Project Manager $220 - $275 Senior Engineer $185 - $285 Project Engineer $145 - $220 Staff Engineer $125 - $155 Planning Manager $165 - $220 Senior Planner $155 - $175 Planner $115 - $130 GIS Specialist* $125 - $150 Field Inspector & Building Inspectors* $140 - $170 Building Code Compliance Review $100 - $270 CAD Manager* $180 - $195 Draftsperson* $125 - $145 Project Administrator* $125 - $155 Project Assistant/Word Processor* $115 - $130 Professional Reimbursement: The hourly billing rates include the cost of salaries of the BHC employees, plus paid sick and safe leave, vacation, holiday, other fringe benefits, indirect overhead and fee. All employeesclassified as “non-exempt” (billing category denoted with *) by the U.S. Department of Labor will be compensated at 1-1/2 times salary for overtime hours, as per State and Federal wage and hour laws. Billing rates will be calculated accordingly for these overtime hours. Communication Fee: Project Labor times 3.0%which includes telecommunications, faxes,standard U.S. Mail, mobile phones, and internet access. Direct Expenses: Reimbursement for direct expenses incurred in connection with the work, will be at cost plus ten percent. See Schedule of Non-Labor Charges for detail. The foregoing Schedule of Charges is incorporated into the agreement for the services provided, effective January 1, 2022 through December 31, 2022, and will be adjusted thereafter. December 28, 2021 Becca Ochiltree, PE BHC Consultants 1601 Fifth Ave, Suite 500 Seattle, Washington 98101 Re: Windsor Hills Water/Stormwater Replacement Project Project No. 210614 Dear Becca: Thank you for the opportunity for Aspect Consulting, LLC (Aspect) to present our proposal for preparing a Geotechnical Report to support the Critical Areas Exemption permitting process for the Windsor Hills Water/Stormwater Replacement Project (Project) within the City of Renton. We are excited to work on this Project for BHC Consultants (BHC) that will replace aging stormwater and water lines within the Windsor Hills neighborhood. As a firm well versed in Renton’s complex subsurface and permitting environment, Aspect has the technical and collaborative skills to deliver geotechnical services that will curtail costs and add value to this Project. Project Background We understand the Project will consist of replacing below-grade stormwater and water lines within streets of the Windsor Hills neighborhood. While the project is located within several mapped critical areas including high erosion hazards, high landslide hazards, and regulated slopes, the utility replacements will occur entirely within the paved Right of Ways (ROWs). Scope of Work Aspect will provide information on the geotechnical feasibility of the Project. This task includes a review of mapped geologic units and mapped hazards for the Project area, review of existing LiDAR topographic data to look for indications of geologic hazards at the Sites, review of available geotechnical data from adjacent sites, and development of opinion of the potential geologic/geotechnical hazards at the Sites. An Aspect geotechnical engineer will conduct a one-day geotechnical/geologic reconnaissance of the hillside within the Project area to observe visible indications of the mapped critical area concerns, where present. Our reconnaissance will include limited subsurface investigations utilizing hand tools to verify the mapped conditions identified in our screening evaluation (described above). The reconnaissance will evaluate visible and near-surface conditions onsite that may impact Project design or construction from a geotechnical standpoint. earth +water BHC Consultants December 28, 2021 Project No. 210614 Page 2 Aspect will complete an engineering analysis utilizing data derived from the Critical Area Hazard Screening Evaluation and Site Reconnaissance. The engineering analysis will evaluate potential impacts to the critical areas caused by the Project. Our characterization of the subsurface conditions at the Site and our geotechnical engineering conclusions and recommendations will be summarized in a short geotechnical report. The geotechnical report will include the following: Description of the Site and our understanding of the Project Generalized characteristics of subsurface conditions based on existing data Identification of relevant geologic hazards and critical areas Identification of appropriate methods to mitigate Project impacts to the geologic hazards Recommendations as to whether the Project complies with the criteria listed in the Renton Municipal Code (RMC) Section 4-3-050.J.1 and whether the proposed Project is consistent with critical area regulations listed in RMC 4-3-050.A Conclusions and recommendations relating to the feasibility of project as proposed A map showing the locations of any existing subsurface explorations, exploration logs, and groundwater data will be provided as Figures and appendices to the report The geotechnical report will be provided to you as an initial draft for review, questions, and comments. We have assumed one round of draft report revisions in our scope where we assume you and your design team will provide a consolidated set of written comments on the draft report for resolution and incorporation into the final report. We will provide our preliminary geotechnical engineering recommendations based on existing information, our field reconnaissance, and our engineering judgement. Aspect will be pleased to support you and your team through the final design, permitting, and construction. Schedule and Estimated Fees We understand the critical areas permit package will be submitted in September of 2022. We will work with the design team as the project progresses through the first half of 2022 and provide our geotechnical report in advance of the permit package submittal. We propose to complete the scope described above for a lump sum of $9,000. The above Services will be billed on a lump sum basis. We will notify you and obtain your authorization if additional effort above and beyond the estimated scope of this work is required. We will use a Contract Change Form to request your authorization for any changes to the above description of Services. This cost proposal is valid for 90 days unless extended in writing by Aspect. Aspect’s Services will be provided in accordance with the attached Terms and Conditions. This proposal together with the attached Terms and Conditions constitute the Agreement between BHC Consultants December 28, 2021 Project No. 210614 Page 3 Aspect Consulting, LLC and BHC Consultants (Client). Your signature below represents acceptance of this Agreement and provides written authorization to proceed. Please return one signed copy of this Agreement and retain a signed copy for your records. In closing, we again thank you for the opportunity to present this proposal. Please contact either of the undersigned if you have any questions or to discuss any changes to our proposed scope of work. Sincerely, Aspect consulting, LLC Henry Haselton, PE, PMP Principal Geotechnical Engineer hhaselton@aspectconsulting.com Rory Kilkenny, PE Senior Geotechnical Engineer rkilkenny@aspectconsulting.com Client Representative Date Attachments: Terms and Conditions V:\210614 Windsor Hill Geotech Study - Renton\Contracts\Proposal Material\Proposal_20211228_210614_WindsorHillsStormwater Replacement.docx 1 of 2 Revision Date June, 2015 Aspect Consulting, LLC Terms and Conditions 1. RIGHT OF ENTRY AND PROPERTY RESPONSIBILITY The Client will obtain right of entry to the property where the Services are to be performed (“Property”). The right of entry shall allow Aspect and its subcontractors to enter the Property to perform the Services, which may require repeated visits to the Property for on-site monitoring if included in the description of Services. Aspect is responsible for its own activities, but has no responsibility for the Property, for third party safety precautions, or for the safety or control of third parties. 2. SUBSURFACE RISKS AND SITE DAMAGES Client recognizes special risks exist whenever professional consulting services are employed to determine the composition of a site’s subsurface or to determine the existence or non-existence of any man-made or natural subsurface features, including, but not limited to, hazardous substances. Client shall disclose to Aspect all known conditions, substances, or features in writing or in maps, plans or drawings. Even with adequate disclosure by Client, Client acknowledges that the use of exploration and testing equipment may unavoidably damage or alter the Property surface or subsurface and Client accepts this risk. Client assumes responsibility for claims and/or damages arising from changed or differing site conditions or to subsurface structures, including buried utility lines, pipes, tanks, tunnels, or other conditions and agrees to hold harmless, defend and indemnify Aspect and its subcontractors from any such claims and/or damages, including attorney fees, except to the extent directly caused by the negligence of Aspect or its subcontractors. 3. HAZARDOUS SUBSTANCES Client shall provide Aspect with all information available to Client concerning past and present use of the Property and the nature and extent of any known or suspected hazardous substances or conditions, prior to Aspect performing the Services. Unless expressly stated otherwise in the Agreement, Client acknowledges that Aspect has no liability as a generator, operator, transporter, disposer, or arranger of the transportation and/or disposal of hazardous substances from the Property. Client agrees to hold harmless, defend and indemnify Aspect and its subcontractors from any claims and/or damages, including attorney fees, arising out of the presence, release, or threatened release of hazardous substances on or from the Property, except to the extent directly caused by the negligence of Aspect or its subcontractors. 4. SLOPE STABILITY Client recognizes risks are inherent with any site involving slopes. Client accepts full responsibility for these risks. Client acknowledges that the information obtained or recommendations made by Aspect may help to reduce Client’s risk but no amount of engineering or geologic analysis can assure slope stability. Therefore, Client agrees to hold harmless, defend and indemnify Aspect and its subcontractors from any claims and/or damages, including attorney fees, arising out of or related to slope movement, except to the extent directly caused by the negligence of Aspect or its subcontractors. 5. SAMPLE DISPOSAL / WELL DECOMMISSIONING 5.1 Aspect may dispose of any samples obtained from the Property 30 calendar days after the issuance of any document that includes the data obtained from the sample, unless other arrangements are mutually agreed upon in writing. Unless expressly stated otherwise in the description of Services, the disposal cost for samples is not included in any cost estimate for the Services. Client acknowledges the difficulty in determining disposal costs in advance and authorizes Aspect to bill Client for expenses incurred in disposing of samples obtained from the Property. 5.2 Any wells installed as part of Aspect’s work may later need to be properly decommissioned and recorded in accordance with applicable law. Unless expressly stated otherwise in the description of Services, well decommissioning and recording are not included in the Services to be performed by Aspect. 6. OWNERSHIP OF DOCUMENTS / WORK PRODUCT 6.1 Data, reports or information provided by Aspect under this Agreement shall only become the property of Client upon full payment for the Services. After full payment, Aspect shall retain joint ownership of all such information. Aspect shall retain copies of the original electronic files and/or hardcopy versions of information provided by Aspect or by Client. Aspect’s originals shall govern in the event of any dispute regarding the content of electronic media furnished to others. 6.2 All reports prepared by Aspect under this Agreement are intended solely for the Client and apply only to the Services. Any use or reuse by Client for purposes outside of this Agreement is at the sole risk of Client and without liability to Aspect. Aspect shall not be liable for any third parties’ use of the deliverables provided by Aspect. 6.3 Aspect is entitled to rely upon the completeness and accuracy of reports, documents, drawings, plans and other information furnished by Client concerning the Property or the project that is the subject of this Agreement. 6.4 In the event Aspect is required to respond to legal process related to the Services for Client, Client agrees to reimburse Aspect its current hourly charges for personnel involved in the response and attorney fees reasonably incurred in obtaining advice concerning the response, preparation to testify, and appearances related to the legal process, travel and all reasonable expenses associated with the litigation. 2 of 2 Revision Date June, 2015 6.5 Unless a different time period is stated in the Agreement, Aspect shall retain records in accordance with Aspect’s records retention policy. 7. PAYMENT TERMS Invoices shall be submitted to Client upon completion of the Services, or if Services extend beyond 30 days, on a monthly basis for the preceding months work. Billing corrections must be requested within 30 days of invoice date. Payment terms are net 30 days from the date of invoice. All overdue payments are subject to an additional interest and service charge of one and one-half percent (1.5%) (or the maximum rate permissible by law, whichever is lesser) per month or portion thereof from the due date until the date of payment. All fees will be charged or billed directly to Client. Aspect will not bill a third party without a statement, signed by the third party, accepting payment responsibility. In the event a third party fails to pay, Client shall remain liable for all unpaid invoices for the Services. Aspect may suspend work and/or withhold delivery of data for Services in the event Client fails to pay its invoices. Client shall be responsible for all costs and expenses of collection including reasonable attorney’s fees. 8. PERFORMANCE AND WARRANTY LIMITATION Aspect will perform all Services consistent with recognized standards of professionals in the same locality and involving similar conditions. ASPECT MAKES NO OTHER WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES. No representative of Aspect is authorized to give or make any other representation or warranty in any way, in connection with the Services. Aspect shall not be liable for any failure or delay in performance by Aspect resulting, in whole or in part, from any cause beyond the reasonable control of Aspect. 9. INSURANCE / LIMITATION OF LIABILITY 9.1 Aspect maintains primary General Liability Insurance for bodily injury and property damage with a limit of $1,000,000 per occurrence and $2,000,000 aggregate. Aspect maintains Professional Liability insurance to provide coverage for liability resulting from professional errors and omissions. 9.2 Aspect’s liability to Client for bodily injury or property damage covered by Aspect’s General Liability Insurance policy shall be limited to the proceeds available from the primary General Liability Insurance policy. The liability of Aspect, its manager, members, professionals, employees, and subcontractors to the Client for damages, including attorney fees, resulting from an act, error or omission in providing or failing to provide professional services, whether based in tort or in contract, shall be limited to the greater of $50,000 or the amount of compensation paid to Aspect under this Agreement, unless higher limits are agreed upon in writing. In no event shall either party be liable to the other party, for any consequential or incidental damages, including, without limitation, damages for loss of income, loss of profits and/or loss or restriction of use of the Property. 10. TERMINATION Suspension or termination of all or any part of the Services may be initiated by Client; however Client shall be responsible for all fees owed Aspect for Services performed by Aspect, including all direct costs and all expenses incurred or committed that cannot be cancelled without penalty as well as reasonable termination expenses, prior to Aspect’s receipt of written notice from Client. Either party may terminate this Agreement for cause in the event of the other party’s substantial or material failure to perform in accordance with the terms hereof, through no fault of the terminating party. Except for termination arising out of delinquency in payment, a termination for cause shall not be effective unless: (i) not less than seven days’ written notice of intent to terminate has been provided; (ii) the notice specifies all reasons for the termination; and (iii) the notified party is given an opportunity to consult with the terminating party to discuss the termination and to cure the substantial failure before the expiration of the period specified in the written notice. 11. MISCELLANEOUS PROVISIONS 11.1 These Terms and Conditions, together with the Agreement, the Schedule of Charges, and any additions or revisions agreed upon in writing by the parties, form the entire Agreement and control over all previous communications, representations, or agreements, either verbal or written, between Client and Aspect. 11.2 Aspect may assign work included under the Agreement to subcontractors. 11.3 Client and Aspect agree to use their best efforts to resolve any disputes, claims or other matters in controversy arising under or related to this Agreement. 11.4 These Terms and Conditions shall be governed by the laws of the State of Washington. The sole venue for any legal action related to this Agreement shall be King County, Washington. 11.5 The unenforceability of any term or condition herein shall not affect the validity or enforceability of the remainder to these Terms and Conditions; the intent of the parties being the provisions be severable. The section headings of these Terms and Conditions are intended solely for convenience and do not define or affect these Terms and Conditions or their interpretation. No waiver by either party of any provision, term or condition hereof or of any obligation of the other party hereunder shall constitute a waiver of any subsequent breach or other obligation.