HomeMy WebLinkAbout2025-112 AGRMT Engineered Monitoring Solutions A -IT Y OF
Personal Services Agreement
SHLAND
City Information Consultant Information
City of Ashland Firm Name: Engineered Monitoring Solutions
Attn: Scott Fleury Contact: Barry Myers
20 East Main Street Address: 16650 NE Hillside Dr.
Ashland, Oregon 97520 Newberg, Or 97132
Phone:(541)488-5587 Phone: 503 349-6161
Email: scott.fieury@ashiand.or.US Email: barry.myers@engineeredmonitoringsolutions.com
Contract Summary
Procurement Method: Direct award
Completion Date: 06/30/2026
Contract Amount: $20,585-00 Do not exceed
Description of Services: Equipment Maintenance Services Hosler Dam Monitoring System
Supporting Documents: Proposal Dated: 8/12/25
Dated:
Dated:
Dated:
This Personal Services Agreement (hereinafter"Agreement") is entered into by and between the
City of Ashland, an Oregon municipal corporation (hereinafter "City") and the Consultant listed
under Consultant Information above, ("hereinafter "Consultant"), for the services listed under
Description of Services and Supporting Documents as noted in the Contract Summary above. In
the event of conflict between provisions of the Supporting Documents, the Supporting Documents
shall be given precedence in the order listed above.
This Agreement, the Exhibits and the Supporting Documents shall be construed to be mutually
complementary and supplementary wherever possible. In the event of a conflict which cannot be
so resolved, the provisions of this Agreement itself shall control over any conflicting provisions in
any of the exhibits or supporting documents. The Consultant's initials (&LIZ herein signify
acknowledgment and agreement to this provision, if applicable, or if not sign "N/A".
Consultant's services are collectively referred to in this Agreement as the"Work."
Page 1 of 8 Personal Services Agreement Between the City of Ashland and Engineered Monitoring Solut!
NOW THEREFORE, in consideration of the mutual covenants contained herein, the City and
Consultant hereby agree as follows:
1. Effective Date and Duration: This Agreement shall become effective on the date of
execution on behalf of the City, as set forth below (the "Effective Date"), and unless sooner
terminated as specifically provided herein, shall terminate upon the City's affirmative
acceptance of Consultant's Work as complete and Consultant's acceptance of the City's final
payment therefore, but not later than the Completion Date listed under the Contract
Summary in the table one page one of this agreement.
1.1. Time is of the essence. Time is of the essence for Consultant's performance of each
and every obligation and duty under this Agreement. City, by written notice to Consultant
of default or breach, may at any time terminate the whole or any part of this Agreement if
Consultant fails to provide the Work called for by this Agreement within the time specified
I herein or within any extension thereof.
2. Compensation: City shall pay Consultant the sum listed as the"Contract Amount" under the
i Contract Summary on page one of this document as full compensation for Consultant's
performance of all Work under this Agreement. In no event shall Consultant's total of all
compensation and reimbursement under this Agreement exceed the Contract Amount without
the express, written approval from the appropriate Department Head or City Manager.
Payments shall be made within thirty(30)days of the date of receipt by the City of Consultant's
invoice. Should this Agreement be terminated prior to completion of all Work, payments will
be made for any phase of the Work completed and accepted as of the date of termination.
3. Consultant Obligations:
3.1. Independent Contractor Status. Consultant is an independent contractor and not an
employee of the City for any purpose. Consultant shall have the complete responsibility
for the performance of this Agreement. Consultant shall provide workers' compensation
coverage as required in ORS Chapter 656 for all persons employed to perform Work
pursuant to this Agreement. Consultant is a subject employer that will comply with ORS
656.017.
3.2. Qualified Work. Consultant has represented, and by entering into this Agreement now
represents,that all personnel assigned to the Work to be performed under this Agreement
are fully qualified to perform the services to which they will be assigned in a skilled manner
and, if required to be registered, licensed, or bonded by the State of Oregon, are so
registered, licensed, or bonded.
3.3. Assignment. Consultant shall not assign this Agreement or subcontract any portion of
the Work without the written consent of City. Any attempted assignment or subcontract
without written consent of City shall be void. Consultant shall be fully responsible for
the acts or omissions of any assigns or subcontractors and of all persons employed by
them, and the approval by City of any assignment or subcontract of the Work shall not
create any contractual relation between the assignee or subcontractor and City.
Page 2 of 8 Personal Services Agreement Between the City of Ashland and Engineered Monitoring Soluti�
3.4. Work Performance Obligation. Consultant shall, at its own risk, perform the Work
described in the Description of Services and in the Supporting Documents and, unless
otherwise specified in this Agreement,furnish all labor, equipment, and materials required
for the proper performance of such Work.
3.5. Certification. Consultant agrees to and shall sign the certification attached hereto as
"Exhibit C" and incorporated herein by this reference.
4. Insurance: Consultant shall, at its own expense, maintain the following insurance:
4.1. Worker's Compensation. Worker's Compensation insurance in compliance with ORS
656.017, which requires subject employers to provide Oregon workers' compensation
coverage for all their subject workers.
4.2. Workers' Compensation Exemption. If applicable, Consultant affirms and certifies that
it is exempt from providing Workers' Compensation per ORS 656.027.
Exemption criteria: Enter criteria here or delete if not applicable
Consultant initials if exempt: Date:
4.4. General Liability in rance with a combined single limit, or the equivalent, of not less
than$ ;000,000 fta•million dollars) per occurrence for Bodily Injury, Death,and Property
Damage.
4.5. Automobilp Liability s r nce with a combined single limit, or the equivalent, of not
less than $ 000,000 ( illion dollars)for each accident for Bodily Injury and Property
Damage, including coverage for owned, hired or non-owned vehicles, as applicable.
4.6. Notice of cancellation or change. There shall be no cancellation, material change,
reduction of limits or intent not to renew the insurance coverage(s)without thirty(30)days'
prior written notice from the Consultant or its insurer(s)to the City.
4.7. Additional Insured/Certificates of Insurance. Consultant shall name the City of
Ashland, Oregon, and its elected officials, officers and employees as Additional Insureds
on any insurance policies, excluding Professional Liability and Workers' Compensation,
required herein, but only with respect to Consultant's services to be provided under this
Agreement. The consultant's insurance is primary and non-contributory. As evidence of
the insurance coverages required by this Agreement, the Consultant shall furnish
acceptable insurance certificates prior to commencing the Work under this Agreement.
The certificate will specify all of the parties who are Additional Insureds. Insuring
Page 3 of 8 Personal Services Agreement Between the City of Ashland and Engineered Monitoring Soluti�
companies or entities are subject to the City's acceptance. If requested, complete copies
of insurance policies;trust agreements, etc.shall be provided to the City. The Consultant
shall be financially responsible for all pertinent deductibles, self-insured retentions, and/or
self-insurance.
i 5. Termination:
5.1. Mutual Consent. This Agreement may be terminated at any time by the mutual consent
of both parties.
5.2. City's Convenience. This Agreement may be terminated by City at any time upon not
less than thirty (30) days' prior written notice delivered by certified mail or in person.
5.3. For Cause. City may terminate or modify this Agreement, in whole or in part, effective
upon delivery of written notice to Consultant, or at such later date as may be established
by City under any of the following conditions:
• If City funding from federal, state, county or other sources is not obtained and
continued at levels sufficient to allow for the purchase of the indicated quantity
of services; or
• If federal or state regulations or guidelines are modified, changed, or interpreted
in such a way that the services are no longer allowable or appropriate for
purchase under this Agreement or are no longer eligible for the funding
proposed for payments authorized by this Agreement; or
• If any license or certificate required by law or regulation to be held by Consultant
to provide the services required by this Agreement is for any reason denied,
revoked, suspended, or not renewed.
5.4. For Default or Breach. Either City or Consultant may terminate this Agreement in the
event of a breach of the Agreement by the other. Prior to such termination the party
seeking termination shall give to the other party written notice of the breach and its intent
to terminate. If the party committing the breach has not entirely cured the breach within
fifteen (15) days of the date of the notice, or within such other period as the party giving
the notice may authorize in writing, then the Agreement may be terminated at any time
thereafter by a written notice of termination by the party giving notice.
5.4.1. Default: The Consultant shall be in default of this Agreement if Consultant:
commits any material breach or default of any covenant, warranty, certification, or
obligation under the Agreement; institutes an action for relief in bankruptcy or has
instituted against it an action for insolvency; makes a general assignment for the
benefit of creditors; or ceases doing business on a regular basis of the type
identified in its obligations under the Agreement; or attempts to assign rights in, or
delegate duties under, this Agreement.
Page 4 of 8 Personal Services Agreement Between the City of Ashland and Engineered Monitoring Soluti�
5.5. Obligation/Liability of Parties. Termination or modification of this Agreement pursuant
to subsections 5.1, 5.2, or 5.3 above shall be without prejudice to any obligations or
liabilities of either party already accrued prior to such termination or modification.
However, upon receiving a notice of termination (regardless of whether such notice
is given pursuant to subsection 5.1, 5.2, 5.3, or 5.4 of this section, Consultant
shall immediately cease all activities under this Agreement, unless expressly
directed otherwise by City in the notice of termination. Further, upon termination,
Consultant shall deliver to City all documents, information, works-in-progress and other
property that are or would be deliverables had the Agreement been completed. City
shall pay Consultant for Work performed prior to the termination date if such
Work was performed in accordance with this Agreement.
5.6. The rights and remedies of City provided in this subsection are not exclusive and are in
addition to any other rights and remedies provided by law or under this Agreement.
6. Indemnification: Consultant hereby agrees to defend, indemnify, save, and hold City, its
officers, employees, and agents harmless from any and all losses, claims, actions, costs,
expenses, judgments, or other damages resulting from injury to any person (including injury
resulting in death), or damage (including I r st�ruction) to property, of whatsoever
SPY
nature arising out of or incident to theYperformance of this Agreement by Consultant
(including but not limited to, Consultant's employees, agents, and others designated by
Consultant to perform Work or services attendant to this Agreement). However, Consultant
shall not be held responsible for any losses, expenses, claims, costs, judgments, or other
damages, caused solely by the gross negligence of City.
7. Consultant's Compliance with Tax Laws: Consultant represents and warrants to the City
that: Consultant shall comply with all Oregon tax laws, including but not limited to ORS
305.620, ORS 305.380(4), and ORS Chapters 316, 317, 318, in addition to any rules,
regulations, charter provisions, or ordinances that implement or enforce any of the foregoing
tax laws or provisions and any tax provisions imposed by a political subdivisions of the State
of Oregon.
8. Living Wage Requirements: If the amount of this Agreement is $26,429.65 or more,
Consultant is required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a
living wage, as defined in that chapter, to all employees performing Work under this
Agreement and to any Subcontractor who performs 50% or more of the Work under this
Agreement. Consultant is also required to post the notice attached hereto as "Exhibit B"
predominantly in areas where it will be seen by all employees.
9. Notice: Whenever notice is required or permitted to be given under this Agreement, such
notice shall be given in writing to the other party by personal delivery, by sending via a
reputable commercial overnight courier, by mailing using registered or certified United States
mail, return receipt requested, postage prepaid, or by electronically confirmed at the
addresses set forth on page one of this agreement with a copy to:
Page 5 of Personal Services Agreement Between the City of Ashland and Engineered Monitoring Solutio�
I
City of Ashland —Legal Department
20 E. Main Street
Ashland, Oregon 97520
Phone: (541) 488-5350
10. General Provisions:
10.1. Ownership of Work/Documents: All Work, work product, or other documents
produced in furtherance of this Agreement belong to the City, and any copyright, patent,
trademark proprietary or any other protected intellectual property right shall vest in and is
hereby assigned to the City.
10.2. Non-appropriations Clause - Funds Available and Authorized: City has
sufficient funds currently available and authorized for expenditure to finance the costs of
this Agreement within the City's fiscal year budget. Consultant understands and agrees
that City's payment of amounts under this Agreement attributable to Work performed
after the last day of the current fiscal year is contingent on City appropriations, or other
expenditure authority sufficient to allow City in the exercise of its reasonable
administrative discretion, to continue to make payments under this Agreement. In the
event City has insufficient appropriations, limitations or other expenditure authority, City
may terminate this Agreement without penalty or liability to City, effective upon the
delivery of written notice to Consultant, with no further liability to Consultant.
10.3. Statutory Requirements: The following laws of the State of Oregon are hereby
incorporated by reference into this Agreement: ORS 2796.220, 27913.230 and
279B.235.
10.4. Nondiscrimination: Consultant agrees that no person shall, on the grounds of
race, color, religion, creed, sex, marital status, familial status or domestic partnership,
national origin, age, mental or physical disability, sexual orientation, gender identity or
source of income, suffer discrimination in the performance of any Work under this
Agreement when employed by Consultant. Consultant agrees to comply with all
applicable requirements of federal and state civil rights and rehabilitation statutes, rules
and regulations. Further, Consultant agrees not to discriminate against a
disadvantaged business enterprise, minority-owned business, woman-owned business,
a business that a service-disabled veteran owns or an emerging small business
enterprise certified under ORS 200.055, in awarding subcontracts as required by ORS
279A.110.
10.5. Governing Law: This Agreement shall be governed by the laws of the State of
Oregon without regard to conflict of laws principles. Exclusive venue for litigation of any
action arising under this Agreement shall be in the Circuit Court of the State of Oregon
for Jackson County unless exclusive jurisdiction is in federal court, in which case
exclusive venue shall be in the federal district court for the district of Oregon. Each party
expressly waives any and all rights to maintain an action under this Agreement in any
Page 6 of Personal Services Agreement Between the City of Ashland and Engineered Monitoring Soluti�
other venue, and expressly consents that, upon motion of the other party, any case may
be dismissed, or its venue transferred, as appropriate, so as to effectuate this choice of
venue.
11. Merger: This agreement and the attached exhibits constitute the entire understanding and
agreement between the parties. No waiver, consent, modification or change of terms of this
agreement shall bind either party unless in writing and signed by both parties. Such waiver,
consent, modification or change, if made, shall be effective only in the specific instance and
for the specific purpose given. There are no understandings, agreements, or representations,
oral or written, not specified herein regarding this agreement. Consultant, by signature of its
authorized representative, hereby acknowledges that he/she has read this agreement,
understands it, and agrees to be bound by its terms and conditions.
Page 7 of 8 Personal Services Agreement Between the City of Ashland and Engineered Monitoring Soluti�
WITNESS WHEREOF, the parties have executed this Agreement in their respective names by
their duly authorized representatives as of the dates indicated below. This Agreement may be
executed in two counterparts, each of which shall be deemed an original, with equal force and
effect as if executed in a single document.
City of Ashland: Engineered Monitoring Soluti(Consultant)
By: �.� ,...
Scott�eury; ublic d hs"Director
1 8.26.2025 Signature
Date
Printed Name
®o
Title
Purchase Order No.
Date
(W-9 is to be submitted with this signed Agreement)
APPROVED AS TO FORM:
City Attorney
9.4.25
Date
Page 8 of 8 Personal Services Agreement Between the City of Ashland and Engineered Monitoring Soluti�
City of • • -
gon
City of Ashland
LIVING
employersALL
with City of Ashland laws regulating payment of ] WAGE
a living wage.
per hour, effective June 30, 2025.
ow
The Living Wage is adjusted annually every
June 30 by the Consumer Price Index.
- - . - • , a project or portion of the 401K, and IRS eligible
business of their employer, if cafeteria plans (including
the employer has ten or more childcare) benefits to the
employees, and has received employee's amount of wages.
➢ For all hours worked under a financial assistance for the
service contract between their project or business from the ➢ Note: For temporary and part-
employer and the City of City of Ashland over$27,163. time employees, the Living
Ashland if the contract Wage does not apply to the
exceeds$27,163 or more. ➢ If their employer is the City of first 1040 hours worked in any
Ashland, including the Parks calendar year. For more
➢ For all hours worked in a and Recreation Department. details, please see Ashland
month,if the employee spends Municipal Code Section
50%or more of the employee's ➢ In calculating the living wage, 3.12.020.
time in that month working on employers may add the value
of health care, retirement,
For additional information:
Call the Ashland City Manager's office at 541-488-6002 or write to the City Manager,
City Hall, 20 East Main Street,Ashland, OR 97520, or visit the City's website at www.ash land.or.us,
Notice to Employers: This notice must be posted in areas where it can be seen by all employees.
3 V or
VA SHLAND
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M3v9lfl �bF�NMm6,m9Po9M.AM mm ... ....r
Exhibit C
Certifications/Representations: Consultant, by and through its authorized
representative, under penalty of perjury, certifies that(a) the number shown on the attached W-9
form is its correct taxpayer ID (or is waiting for the number to be issued to it and (b) Consultant is
not subject to backup withholding because: (i) it is exempt from backup withholding, or (ii) it has
not been notified by the Internal Revenue Service (IRS)that it is subject to backup withholding as
a result of a failure to report all interest or dividends, or (iii) the IRS has notified it that it is no
longer subject to backup withholding. Consultant further represents and warrants to City that: (a)
it has the power and authority to enter into this Agreement and perform the Work, (b) the
Agreement, when executed and delivered, shall be a valid and binding obligation of Consultant
enforceable in accordance with its terms, (c)the work under the Agreement shall be performed in
accordance with the highest professional standards, and (d) Consultant is qualified, professionally
competent, and duly licensed (if applicable) to perform the Work. Consultant also certifies under
penalty of perjury that its business is not in violation of any Oregon tax laws, it is an independent
contractor as defined in the Agreement, it is authorized to do business in the State of Oregon,
and Consultant has checked four or more of the following criteria that apply to its business.
(1) Consultant carries out the work or services at a location separate from a private
residence or is in a specific portion of a private residence, set aside as the location of
the business.
(2) Commercial advertising or business cards or a trade association membership are
purchased for the business.
(3) Telephone listing is used for the business separate from the personal residence
listing.
(4) Labor or services are performed only pursuant to written contracts.
(5) Labor or services are performed for two or more different persons within a period
of one year.
(6) Consultant assumes financial responsibility for defective workmanship or for
service not provided as evidenced by the ownership of performance bonds,
warranties, errors and omission (professional liability) insurance or liability insurance
relating to the Work or services to be provided.
Consulta s signatur
Date
Page 1 of 1: Exhibit C
Engineered Monitoring Solutions
16650 NE Hillside Dr.
Newberg, OR 97132
503 349-6161 ph
August 12, 2025
5004.17
City of Ashland
Public Works Department
20 East Main Street
Ashland, Oregon 97520
Attn: Scott Fleury, P.E.
Re: Proposal for Equipment Maintenance Services
Hosler Dam Monitoring System, Ashland, Oregon
Dear Scott:
We are pleased to submit this proposal to provide one year of technical support assistance to the
City in maintaining the existing Hosler Dam Monitoring System. This assistance will include one
annual on-site maintenance inspection of the monitoring system equipment, performing one
maintenance site visit to reinstall the crest seismic recorder and to install a new junction box for
the reservoir level sensor, providing one year of remote technical support using a VPN
connection to the City's computer network, providing telephone support, and providing system
maintenance/repairs as-requested. We understand that the City will be contracting with Federal
Signal Corporation for the notification system maintenance and technical support.
SCOPE OF SERVICES
Our proposed scope of work includes performing an annual maintenance inspection which would
include an on-site visit to the project to perform a visual inspection of the monitoring system
components. To accomplish this, a visit to the dam will be performed to inspect the system
components including the reservoir level sensor, seismic recorders, ADAS equipment, radio
equipment, and surveillance camera equipment. A visit to the water treatment plant (WTP) will
also be performed to inspect the ADAS equipment, 1/0 interface with the SCADA system, radio
equipment, and surveillance cameras. We will manually trigger alarm conditions to the ADAS to
test the integration of the ADAS and SCADA programming.
We will also review the functionality of the web interface, and meet with City personnel to review
the observed performance of the system over the past year. The results of the maintenance
inspection will be presented in a letter report documenting the observed condition of each of the
items inspected and will include recommendations for servicing or repair efforts, if needed.
The crest seismic recorder was removed for service during the May 2025 annual maintenance
inspection. The configuration of the unit was found to be corrupted. Recommendations were
made to improve the earth grounding on the crest of the dam by installing a continuous ground
wire from the seismic recorder to an earth grounding rod on the left abutment. We understand
that the City will be installing the improved grounding. When this installation is completed, we will
J
perform a site visit to reinstall the seismic recorder. During the site visit we will also provide and
install the recommended junction box to improve the environmental protection of the reservoir
level transient protection on the dam.
Remote technical support and servicing or repair efforts that will be required to maintain normal
operations of the system are not known at this time. The scope of services for this proposal
includes support for the City in accomplishing these efforts as they are needed. Therefore, a
budget item has been included for as-needed servicing or repair efforts. No servicing or repair
work will be performed without prior authorization from the City.
FEES
We estimate that the total cost for the scope of work outlined above would be $20,585. A
breakdown of the estimated labor effort and expenses is presented on the attached Table 1. We
propose to perform this work on a time and materials basis in accordance with the attached
Terms of Agreement for Equipment Maintenance Services. This estimate is based on the
assumptions listed herein. Should you wish to modify the scope of work prior to accepting this
agreement, we would be pleased to review this proposal and our estimated fee with you.
SCHEDULE
We are in a position to begin work on this project within 3 weeks after receiving your authorization
to proceed.
CONCLUDING COMMENTS
If more than 60 days pass before authorizing the proposed work, we reserve the opportunity to
review and modify this proposal where necessary. We look forward to continuing to be of service
to you on this project. Should you have any questions regarding this proposal, we would be
pleased to confer with you at your convenience.
Page 2
Proposal 2025 Annual Maintenance HoslerDamMonitoringSystem.docx
Very truly yours,
Engineered Monitoring Solutions
by
B or'
arry Myers
President
Encl. Table 1 Work Breakdown and Cost Estimate
Terms of Agreement for Equipment Maintenance Services
Page 3
Proposal 2025 Annual Maintenance Hosler Dam Monitoring System-docx
1
`t
TABLE 1 WORK BREAKDOWN AND COST ESTIMATE
Hosler Dam Monitoring System-System Technical Support for FY 2025/26
MANHOURS LABOR CHARGES EQUIPMENT($) Total($)
LABOR RATE CATEGORY Labor
Snr Snr Admin Labor Labor Unit Plus
DESCRIPTION OF TASK AND ACTIVITY Pm Pd Hours Dollars Unit Qty Price Total Expenses
$215 $165 $0 $105
Item 1-One Annual Maintenance Inspection with Reporting 10 16 26 $4,790.00 $0.00 $4,790.00
Item 2-Maintenance Site Visit to Reinstall Seismic Recorder 8 16 1 24 $4,360.00 $0.00 $4,360.00
Item 3-One Year of Remote Technical Support 12 12 $2,580.00 $0.00 $2,680.00
Item 4-As-needed Servicing and Repair Work 12 10 4 26 $4,650.00 $0.00 $4,650.00
Project Administration 4 4 $860.00 $0.00 $860.00
46 42 0 4 92 17240
Estimated Labor&Equipment
$17,240.00
Subcontractors.
0 0 $0.00
Subcontractor $0
Other Direct Charges
Travel/Vehicle/Field Supplies 3 $1,000 $3,000.00
Communications 1 $345 $344.80
Computer Usage 0 $15 $0.00
Repro,Copies
Repro,Photos 0 _ $ $0.00
Repro,Color 0 $1..00 0 $0.00
ODC $3,345
Subtotal Labor&Equip. $17,240
Subcontractors $0
ODC $3,345
Estimated Total $20,585
�TERMS OF AGREEMENT FOR EQUIPMENT�ww �����
ENGINEERED MONITORING SOLUTIONS�a�nad ( herein
- ----ou8unt) January 2O23(H)
FEES FOR SERVICES
Fees for services are based on the time expended on the project by technical and clerical personnel at the following schedule of hourly
charges:
Position Hourty Rate
Administrative Staff
105.00
Senior Project Systems integrator 16500
Senior Principal 215.00
, These rates shall remain in effect until completion of the agreed scope of services ur one year from
date of agreement, whichever occurs first
REIMBURSABLE EXPENSES
Expenses incurred m connection with project tasks such oo equipment purchases, rental oqu|pmant, out-of-town subsistence, vehicle
mmts, expedited delivery and simoar, will be invoiced at direct cost plus 12pomont Communication costs, including 0e|ephono, fax,
co||u|or, and postage will be charged at 2percent of labor costs. Special technical computer programs, {V\D. and G|8 usage will be
charged eL$15 per hour.
SERVICES BY OTHERS
On occasion specialized services by consultants, contmctom, or other technical companies may be needed. Such mnmiuee will be
utilized only with your approval,with the cost of such services included in our invoice plus 15 percent.
PRODUCTSPURCHASED
All hardware and software products are being procured by Consultant as a service for the Client Client agrees that the relationship for
all product warranty,support,servicing, and performance or defect liability issues iu between the Client and the product manufactures.
| INVOICES
! Consultant will submit invoices to you, the Client onomonthly basis and u final bill upon completion ofservices. Payment is due upon
receipt of the invoice unless otherwise agreed, and is past due thirty(3O)days from invoice date. A service charge will be added!oany
account balance in arrears a8a monthly rate/f1%percent nf the balance due. Client agrees that the invoice balance is correct unless
we are notified|n writing within ten days of date ofinvoice.
INSURANCE
The Consultant represents and warrants that u and its agents,staff and other consultants employed by it are protected Uy workers'compensation
insurance and that the Consultant has such coverage under public liability and property damage insurance policies which it deems to be adequate.
Certificates for all such policies of insurance will be provided to Client upon request in writing. Within the limits and conditions oy such insurance,wo
agree Vo indemnify and save Client harmless from and against any loss,damage,or liability arising from grossly negligent acts by the Consultant,its
agents,staff,and other sub-consultants employed byft. Consultant shall not be responsible for any loss,damage,m liability beyond the amounts,
limits,and conditions of such insurance. The Consultant shall not be responsible for any loss,damage,or liability arising from any acts by Client,its
agents,staff,and other consultants employed uyit.
STANDARD OF CARE
Gom|umo performed by the Consultant under this Agreement will be conducted in m manner consistent with that|nva| of care and ohi||
ordinarily exercised by the profession currently practicing under similar conditions in this area at this time.
Client recognizes that conditions may vary from those encountered at the location where surveys or investigations any made by the
Consultant, and that the data, interpretations and recommendations of the Consultant are based solely on the information available to it.
The Consultant will be responsible for those data, interpretations,and recommendations, but shall not be responsible for the interpretations
by others o«the information developed.
LIMITATION OF LIABILITY
Client agrees to limit the Consultant's liability to Client, and to any other person or entity, for any claim arising from, m alleged toarise
from any acts, errors, or omissions in the performance of this Agreement,whether such claim sounds in negligence, breach of contract,
strict liability or other |ogo| \kemy, and including any legal fees or costs awarded under this Agreement, to an aggregate limit oythe
amount of fees paid to Consultant under this Agreement, m$1n.00u.whichever isgreater. Waiver cx this clause o,a higher limitation
may bo negotiated for an additional fee.
DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS
Hazardous materials, including biological pollutants (molds, fungi, spores, bacteria, and viruses, and the byproducts of any such
organisms or life forms) may exist, or occur later, at a site where there is no reason to believe they could or should be present.
Consultant and Client agree that the discovery of unanticipated hazardous materials, including biological pollutants, constitutes a
changed condition mandating a renegotiation of the scope of work or termination of services. Client agrees to compensate Consultant
for the additional cost of working to protect employees' and public's health and safety. In addition, Client waives any resulting claim
against Consultant, and agrees to defend, indemnify and save Consultant harmless from any claim or liability for injury or loss arising
from Consultant's discovery of unanticipated hazardous materials or suspected hazardous materials. Client also agrees to fairly
compensate Consultant as outlined herein for any time spent and expenses incurred by Consultant in defense of any such claim.
Client,u initials Dato Page 1cf2
January 2023(H)
AQUIFER CONTAMINATION
Client recognizes that it is impossible for Consultant to know the exact composition of a site's subsurface even after employing the most
comprehensive exploratory program reasonably possible. As result,there is a risk that instrument installations or sampling may result in
contamination of certain subsurface areas, as when a probe or boring device moves through a contaminated area, linking it to an
aquifer or other hydrous body not previously contaminated and capable of spreading hazardous materials offsite. Because nothing can
be done to prevent such an occurrence, and because such installation and sampling is a necessary aspect of the work which
Consultant will perform for Client's benefit, Client waives any resulting claim against Consultant, and agrees to defend, indemnify and
save Consultant harmless from any claim or liability for injury or loss which may arise as a result of cross-contamination caused by
instrument installation or sampling. Client further agrees to fairly compensate Consultant as outlined herein for any time spent or
expenses incurred by Consultant in defense of any such claim.
RIGHT OF ENTRY
The Client will provide for right of entry of the Consultant,their contractors, and all necessary equipment, in order to complete the work.
While the Consultant will take all reasonable precautions to minimize damage to the property, the Client understands that in the normal
course of work some damage may occur,the correction of which is not part of this Agreement.
UTILITIES
In the prosecution of the work,the Consultant will take reasonable precautions to avoid damage or injury to subterranean structures or utilities.
The Client agrees to hold the Consultant harmless for any damages to subterranean structures or utilities which are not called to the
Consultant's attention and correctly shown on the plans furnished.
OWNERSHIP OF DOCUMENTS
All reports, field data, field notes, calculations, estimates, and other documents prepared by the Consultant, as instruments of service,
shall remain confidential and the property of the Consultant. Client agrees that all reports and other work furnished to the Client,which
is not paid for,will be returned upon demand and will not be used by the Client for any purpose whatever.
The Consultant will retain all pertinent records relating to the services performed for an appropriate period following submission of the
report or completion of work,during which period the records will be made available to the Client at all reasonable times.
DISPUTES
In the event that a dispute arises in any way connected with this Agreement, and if the dispute cannot be settled through direct
discussions, the parties agree to first attempt to settle the dispute by mediation, before recourse to arbitration or a judicial forum. If the
dispute eventually results in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred,
including staff time,court costs, attorney's fees, and other claim-related expenses, including at trial and on appeal.
TERMINATION
This Agreement may be terminated by either party upon seven (7) days written notice in the event of substantial failure by the other
party to perform in accordance with the terms hereof. Such termination shall not be effective if that substantial failure has been
remedied before expiration of the period specified in the written notice. In the event of termination, the Consultant shall be paid for
services performed to the termination notice date plus reasonable termination expenses.
In the event of termination or suspension for more than three (3) months prior to completion of all reports contemplated by this
Agreement, the Consultant may complete such analyses and records as are necessary to complete its files and may also complete a
report on the services performed to the date of notice of termination or suspension. The expenses of termination or suspension shall
include all direct costs of the Consultant in completing such analyses, records and reports.
ASSIGNS
Neither the Client nor the Consultant may delegate, assign, sublet or transfer its duties or interest in this Agreement without the written
consent of the other party.
SEVERABILITY
Client and Consultant have entered into this Agreement of their own free will to communicate to one another mutual understandings and
responsibilities. Any element of this Agreement later held to violate a law or regulation shall be deemed void, and all remaining
provisions shall continue in force. However, Client and Consultant will in good faith attempt to replace any invalid or unenforceable
provision with one that is valid and enforceable, and which comes as close as possible to expressing the intent of the original provision.
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