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HomeMy WebLinkAbout19- Professional Services Agreement, Bozeman Downtown Urban Renewal District - Sanderson Stewart - South Willson Public Parking Lot Design Professional Services Agreement for South Willson Public Parking Lot Design Page 1 of 10 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 9th day of February, 2019, by and between the BOZEMAN DOWNTOWN URBAN RENEWAL DISTRICT, an agency of the City of Bozeman, which is a self-governing municipal corporation organized and existing under the laws of the State of Montana, with a mailing address of 222 East Main Street, Suite 302, Bozeman, Montana, hereinafter referred to as “URD,” and, SANDERSON STEWART, 106 East Babcock Street, Bozeman, Montana 59715 hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: URD agrees to enter this Agreement with Contractor to perform for URD services described in the Scope of Services attached hereto as Attachment “A” and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the date of its execution. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the requirements of the included Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: URD agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the URD and will become an additional charge over and above the amount listed in the Scope of Services. The URD must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce URD to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, Professional Services Agreement for South Willson Public Parking Lot Design Page 2 of 10 and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to URD that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The URD will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the URD for any purpose. Contractor is not subject to the terms and provisions of the URD’s personnel policies handbook and may not be considered a URD employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the URD or otherwise bind the URD in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the URD with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall indemnify, defend, and hold the URD harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the URD and the City of Bozeman, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the “URD”) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of Professional Services Agreement for South Willson Public Parking Lot Design Page 3 of 10 and expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the URD occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the URD harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by URD. Should any indemnitee described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against URD resulting from the URD’s performance under this Agreement, the URD may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the URD or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. Professional Services Agreement for South Willson Public Parking Lot Design Page 4 of 10 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the URD without limit and without regard to the cause therefore and which is acceptable to the URD and Contractor shall furnish to the URD an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The URD and the City of Bozeman, its officers, agents, and employees, (collectively referred to for purposes of this Section as the “URD”) shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to URD and shall include no less than a sixty (60) day notice of cancellation or non-renewal. The URD must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify URD within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The URD must approve all insurance coverage and endorsements prior to the Contractor commencing work. Professional Services Agreement for South Willson Public Parking Lot Design Page 5 of 10 Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the URD may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The URD may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the URD may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for URD’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the URD, make it advisable to the URD to cease performance under this Agreement URD may terminate this Agreement by written notice to Contractor (“Notice of Termination for URD’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for URD’s Convenience and shall be without prejudice to any claims that the URD may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for URD’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the URD. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 13, Contractor is Professional Services Agreement for South Willson Public Parking Lot Design Page 6 of 10 entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for URD’s Convenience. d. The compensation described in Section 13(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide URD with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ten (10) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives: a. URD’s Representative: The URD’s Representative for the purpose of this Agreement shall be Chris Naumann, Downtown Bozeman URD Director, or such other individual as URD shall designate in writing. Whenever approval or authorization from or communication or submission to URD is required by this Agreement, such communication or submission shall be directed to Chris Naumann as the URD’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when URD’s Representative is not available, Contractor may direct its communication or submission to other designated URD personnel or agents as listed above and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Danielle Scharf (Principal) or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Professional Services Agreement for South Willson Public Parking Lot Design Page 7 of 10 Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, URD may direct its direction or communication to other designated Contractor personnel or agents. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a URD of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination: The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of its sub- Contractors providing services under this agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the URD under this Agreement while on URD property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. URD shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. Professional Services Agreement for South Willson Public Parking Lot Design Page 8 of 10 The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of URD. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the URD demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the URD, its auditors, and other persons authorized by the URD to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the URD. 18. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, Professional Services Agreement for South Willson Public Parking Lot Design Page 9 of 10 employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. February 5, 2019 Mr. Chris Naumann Executive Director Downtown Bozeman URD222 East Main Street #302 Bozeman, MT 59715 Reference: Agreement for Engineering and Planning Services Willson Lot South Concept Design Revision Dear Chris: The following is a proposal for Sanderson Stewart to provide certain services in connection with your project, which is generally described as follows: Various updates to the Willson Lot South (24 North Willson Avenue) concept that was originally prepared for the 2015 Downtown Bozeman Parking Lots project and a City of Bozeman Concept Review Application. If this proposal is acceptable to you, please execute this agreement where noted. This agreement, along with the attached Terms and Conditions sets forth the terms of the contract between Downtown Bozeman URD (hereinafter “Client”) and Sanderson Stewart. The attached Terms and Conditions are expressly incorporated into and made part of the contract between Client and Sanderson Stewart. Overview This project includes various updates to the concept design for the Willson Lot South at 24 North Willson Avenue (formerly known as "the Armory Lot") that was originally prepared for the 2015 Downtown Bozeman Parking Lots project. The revisions will reflect the new Downtown Plan’s recommendations for code changes for small urban parking lots. The proposed revisions include elimination of islands, reduction in landscaping, addition/ modification of the approved streetscape plan, revisions to lighting, and other amenities. Scope of Work Sanderson Stewart will provide the following services as part of its basic services: _____ Initials CN Mr. Chris Naumann February 5, 2019 Page 2 _____ Initials 1.Project Management and Coordination This phase of the project consists of providing project management services throughout the duration of the project. Specific tasks will include: •Project management, coordination, and correspondence with client, project team,and governing agencies •Client meetings (up to four (4) hours of in-person meetings) 2.Concept Design Revisions This phase of the project consists of revising the original design concept. Specific tasks will include: •Base map revisions for parking layout changes and streetscape improvements •Concept design rendering revisions to address base map changes and revisions to other amenities •Update original opinion of probable cost to reflect all changes, update unit prices asneeded 3.Conceptual Review Application This phase of the project will include preparation of a City of Bozeman Conceptual Review Application. Specific tasks will include: •Prepare CONR application and narrative •Address review comments and submit to City of Bozeman CommunityDevelopment •Meeting with City of Bozeman, if needed Services not set forth above as basic services are specifically excluded from the scope of Sanderson Stewart’s services. Sanderson Stewart assumes no responsibility to perform any services not specifically listed as basic services. Additional services are not included in the basic services. If the Client and Sanderson Stewart agree in writing via an amendment to this agreement, Sanderson Stewart will provide additional services as requested by the Client. Notwithstanding the foregoing, Sanderson Stewart shall have the right, but not the obligation, to provide, without advance authorization from the Client, other services made necessary by the default CN Mr. Chris Naumann February 5, 2019 Page 3 _____ Initials of the contractor or Client, or by deficiencies, delays, or defects in the work provided by the contractor. Sanderson Stewart shall provide written notice of the provision of such services as soon as reasonably possible. Project Staff The following Sanderson Stewart staff will be assigned to the project: Project Manager: Danielle Scharf, PE, Principal Additional Project Staff: Carol Sperat, PLA, Landscape Architect Lauren Wateron, AICP, Planner Jorie Newton, Landscape Designer Sanderson Stewart may, in its discretion, utilize other or different personnel on the project. Project Schedule Once Sanderson Stewart receives Client’s authorization to proceed, Sanderson Stewart shall prepare and submit to the Client a schedule for the performance of Sanderson Stewart’s services. This schedule shall include reasonable allowances for review and approval times required by the Client, performance of services by the Client’s consultants, and review and approval times required by public authorities having jurisdiction over the project. This schedule shall be equitably adjusted as the project progresses, allowing for changes in scope, character, or size of the project requested by the Client, or for delays or other causes beyond Sanderson Stewart’s reasonable control. The Client and Sanderson Stewart are aware that many factors outside Sanderson Stewart’s control may affect Sanderson Stewart’s ability to complete the services to be provided under this agreement. Sanderson Stewart will perform these services with reasonable diligence and expediency consistent with sound professional practices. Fees and Billing Arrangements Services Fee Summary (By Phase) 1.Project Management and Coordination $1,000.00 2.Concept Design Revisions $2,400.00 3.Conceptual Review Application $1,600.00 Total Services: $5,000.00 Invoice and Billing: Sanderson Stewart will bill for its services on a lump sum basis in the amount of $5,000.00. Sanderson Stewart will begin work once this agreement has been executed by both parties. CN Mr. Chris Naumann February 5, 2019 Page 4 _____ Initials Sanderson Stewart shall submit invoices to the Client for work accomplished during each calendar month. For services provided on a lump sum basis, the amount of each monthly invoice shall be determined on the “percentage of completion method” whereby Sanderson Stewart will estimate the percentage of the total work (provided on a lump sum basis) accomplished during the invoicing period. Monthly invoices shall include, separately listed, any charges for services for which time charges and/or unit costs shall apply. Such invoices shall also include, separately listed, any charges for consultants retained by Sanderson Stewart, and reimbursable costs. Such invoices shall be submitted by Sanderson Stewart as soon as possible after the end of the month in which the work was accomplished and shall be due and payable by the Client upon receipt. The Client agrees that the monthly invoice from Sanderson Stewart is correct, conclusive, and binding on the Client unless the Client, within 20 working days from the date of receipt of such invoice, notifies Sanderson Stewart in writing of alleged inaccuracies, discrepancies, errors in the invoice, or the need for additional backup. Entire Agreement: This agreement, including the attached Terms and Conditions incorporated into and made part of this contract, constitutes the entire agreement between Sanderson Stewart and Client. It supersedes all prior communications, understandings and agreements, whether oral or written. It shall become effective after being signed and dated by both parties; and, upon each page being initialed by Sanderson Stewart. Any amendment or modification to this contract must be written and executed by both Sanderson Stewart and Client. Conclusion Chris, we look forward to working with you on this project. Feel free to call me at 406/922-4325 if you have any questions regarding this proposal. Otherwise, if it meets your approval, simply mail or email this signed and dated agreement to our office at 106 East Babcock, Bozeman, MT 59715 or dscharf@sandersonstewart.com. Thank you. Sincerely, Danielle Scharf, PE, PTOE, LEED AP Principal | Bozeman Regional Manager CN Mr. Chris Naumann February 5, 2019 Page 5 _____ Initials I hereby authorize SANDERSON STEWART to proceed as described above and, by my signature, acknowledge and agree to the Terms and Conditions attached to and made part of this contract. Moreover, an electronic or faxed copy of my signature shall be as effective as any original: By Client Title Date By Sanderson Stewart Title Date DRS/ep Enc. O:2019_Naumann_Armory_Parking_Lot_Prpsl_020519 Director 2/8/2019 CN Principal 2/11/19 TERMS AND CONDITIONS INTEREST, SUSPENSION, AND COLLECTION COSTS: Any invoice not paid within 30 days of date of invoice shall bear interest at 1.5 percent per month on the unpaid balance. If CLIENT fails to make payment within 45 days of the date of any invoice, SANDERSON STEWART shall have the right, but not the obligation, to suspend work and withhold deliverables until payment in full, including interest, is received. SANDERSON STEWART shall have no liability whatsoever to the CLIENT for any costs or damages as a result of such suspension. If SANDERSON STEWART resumes services after payment by CLIENT, the time schedule and compensation shall be equitably adjusted to compensate for the period of suspension plus any other reasonable time and expense necessary for SANDERSON STEWART to resume performance. If an invoice remains unpaid for more than 90 days, SANDERSON STEWART shall have the right, but not the obligation, to initiate collection procedures. If the CLIENT fails to make payment when due and SANDERSON STEWART incurs any costs in order to collect sums from the CLIENT, the CLIENT agrees that all such collection costs incurred shall immediately become due and payable to SANDERSON STEWART. Collection costs shall include, but are not limited to, legal fees, collection agency fees and expenses, court costs, collection bonds, and reasonable staff costs for SANDERSON STEWART’s staff for time spent in efforts to collect. This obligation of CLIENT to pay SANDERSON STEWART’s collection costs shall survive the term of this Agreement or any termination by either party. It is understood and agreed that SANDERSON STEWART’s services under this Agreement do not include participation, whatsoever, in any litigation. Should such services be required, a Supplemental Agreement may be negotiated between the CLIENT and SANDERSON STEWART describing the services desired and providing a basis for compensation to SANDERSON STEWART. TERMINATION OF SERVICES FOR NON-PAYMENT: If the CLIENT fails to make payment to SANDERSON STEWART in accordance with this Agreement, this shall constitute a material breach of this Agreement and shall be cause for termination of this Agreement by SANDERSON STEWART. SET-OFFS, BACK CHARGES, AND DISCOUNTS: Payment of invoices shall not be subject to any discounts or set-offs by the CLIENT unless agreed to in writing by SANDERSON STEWART. Payment to SANDERSON STEWART for services rendered and expenses incurred shall be due and payable regardless of any subsequent suspension or termination of this Agreement by either party. INFORMATION PROVIDED BY CLIENT OR OTHERS: CLIENT agrees to provide to SANDERSON STEWART all available information necessary to perform duties as outlined in the attached scope of services. The CLIENT shall furnish, at CLIENT’S expense, all information, requirements, reports, data, surveys, and instructions required. SANDERSON STEWART is entitled to rely on the accuracy and completeness of all such information provided. CLIENT shall furnish right-of-way entry onto the project site for SANDERSON STEWART to perform necessary field measurements or studies. OWNERSHIP OF INSTRUMENTS OF SERVICE: All reports, drawings, specifications, computer files, field data, notes, and other documents and instruments prepared by SANDERSON STEWART as instruments of service shall remain the property of SANDERSON STEWART. SANDERSON STEWART retains all common law, statutory and other reserved rights, including the copyright to all instruments of service. If any instruments of service must be filed with governmental agencies, SANDERSON STEWART will furnish copies to the CLIENT upon request. The CLIENT will not reuse or modify the instruments of service without SANDERSON STEWART’s prior written authorization. The CLIENT agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless SANDERSON STEWART, its officers, directors, employees, and agents, from and against any and all damages, claims, liabilities, costs, or suits, including reasonable attorney’s fees and defense costs, arising from, allegedly arising from, or in any way connected with, the unauthorized reuse or modification of any instrument of service by any person or entity other than SANDERSON STEWART. ELECTRONIC FILES: SANDERSON STEWART may furnish drawings, reports, or data on electronic media generated and furnished by SANDERSON STEWART The CLIENT understands and agrees that all such electronic files are instruments of service of SANDERSON STEWART, that SANDERSON STEWART shall be deemed the author, and shall retain all common law, statutory law, and other rights, including copyrights. The CLIENT agrees not to reuse these electronic files, in whole or in part, for any other purpose other than for the project. The CLIENT agrees not to transfer these electronic files to others without the prior written consent of SANDERSON STEWART The CLIENT further agrees to waive all claims against SANDERSON STEWART resulting in any way from any unauthorized changes to or reuse of the electronic files for any other project by anyone other than SANDERSON STEWART. The CLIENT is aware that differences may exist between the electronic files delivered and the printed hard-copy construction documents. In the event of a conflict between the signed construction documents prepared by SANDERSON STEWART and electronic files, the signed or sealed hard-copy construction documents shall govern. Additionally, the CLIENT agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless SANDERSON STEWART, its officers, directors, employees, and agents, against all damages, liabilities, claims, or suits, including reasonable attorney’s fees and defense costs, arising from any changes made by anyone other than SANDERSON STEWART, or from any reuse of the electronic files without the prior written consent of SANDERSON STEWART. Under no circumstances shall delivery of electronic files for use by the CLIENT be deemed a sale by SANDERSON STEWART; and SANDERSON STEWART makes no warrantees, either express or implied, of merchantability or fitness for any particular purpose. SANDERSON STEWART shall not be liable for indirect or consequential damages as a result of the CLIENT’s use or reuse of electronic files. OPINIONS OF PROBABLE COST: CLIENT hereby acknowledges that SANDERSON STEWART cannot warrant that any opinions of probable cost provided by SANDERSON STEWART will not vary from actual costs incurred by the CLIENT. The CLIENT understands that SANDERSON STEWART has no control over the cost or availability of labor, equipment, materials, or over market conditions or the Contractor’s method of pricing. SANDERSON STEWART makes no warranty, express or implied, that the bids or the negotiated cost of the work will not vary from SANDERSON STEWART’s opinion of probable cost. LIMIT OF LIABILITY: In recognition of the relative risks and benefits of the project to both the CLIENT and SANDERSON STEWART, the risks have been allocated such that the CLIENT agrees to limit the liability of SANDERSON STEWART to the CLIENT for any and all claims, cause or N:Rev_Terms_and_Conditions combination of causes, including attorney’s fees, costs, and expert witness fees so that that the total aggregate liability of SANDERSON STEWART to CLIENT shall not exceed $50,000.00 or SANDERSON STEWART’s total fees for services on this project, whichever is greater. It is intended that this limitation apply to any and all claims, liability or causes of action, however alleged or arising. CONSTRUCTION SERVICES: If, under this Agreement, professional services are provided during the construction phase of the project, SANDERSON STEWART shall not be responsible for or have control over means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work; nor shall SANDERSON STEWART be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents or for the Contractor’s failure to comply with the applicable laws, ordinances, rules, or regulations. These rights and responsibilities are solely those of the Contractor. SANDERSON STEWART shall not be responsible for any acts or omissions of the Contractor, subcontractor, or any person or entity performing any portion of the work. SANDERSON STEWART does not guarantee or warrant the performance of any Contractor and shall not be responsible for the Contractor’s failure to perform its work in accordance with the Contract Documents or any applicable codes, laws, rules or regulations. JOB SITE SAFETY: Neither the professional activities of SANDERSON STEWART, nor the presence of SANDERSON STEWART at the construction/project site, shall relieve the general contractor and all subcontractors of any of their responsibilities and duties to perform the work in accordance with the contract documents and to comply with any health or safety precautions required by any regulatory agencies. SANDERSON STEWART does not have authority to control any construction contractor or its employees in connection with their work or any health or safety programs or procedures. The CLIENT agrees that the contractor and subcontractors are solely responsible for job site safety and warrants that this intent shall be carried out in the CLIENT’s contract with the general contractor. The CLIENT also agrees that CLIENT and SANDERSON STEWART shall be indemnified by the general contractor for any such claims, and shall be made additionally insured under the general contractor’s insurance policies. RECOMMENDATIONS BY SANDERSON STEWART: Sanderson Stewart may provide advice and/or recommendations to the CLIENT during Sanderson Stewart’s provision of services for the CLIENT’s project. If the CLIENT declines to follow the advice and/or recommendations provided by Sanderson Stewart, the CLIENT agrees that Sanderson Stewart shall not have any liability for adverse consequences or damages resulting from the CLIENT’s failure to follow the advice and/or recommendations of Sanderson Stewart. Additionally, the parties agree that the CLIENT’s failure to follow advice and/or recommendations of Sanderson Stewart may be cause for Sanderson Stewart to immediately terminate this Agreement at Sanderson Stewart’s sole discretion. PERMITTING: SANDERSON STEWART shall assist the CLIENT in applying for permits and approvals where required by law. In cases where the scope of services requires SANDERSON STEWART to submit, on behalf of the CLIENT, a permit application and/or approval by a third party to this contract, SANDERSON STEWART does not make any warranties, guarantees, or representations as to the success of SANDERSON STEWART’s effort on behalf of the CLIENT. Payment for services rendered by SANDERSON STEWART is not contingent upon the successful acquisition of these permits. NO ASSIGNMENT WITHOUT CONSENT: Neither party may assign this Agreement without the written agreement of the other party. TERMINATION: In the event of termination of this Agreement by either party, the CLIENT shall, within 15 days of termination, pay SANDERSON STEWART for all services rendered and reimbursable costs incurred by SANDERSON STEWART up to the date of termination. The CLIENT may terminate this Agreement for convenience and without cause upon 21 calendar days’ written notice. Either party may terminate this Agreement for cause upon 10 calendar days’ written notice for the following reasons: 1. Substantial failure by either party to perform in accordance with this Agreement; 2. Assignment of this agreement without the written consent of the other party; 3. Suspension of the project or SANDERSON STEWART’s services for more than 60 calendar days, consecutive or aggregate; 4. Material changes in the conditions under which this Agreement was executed, the Scope of Services, the nature of the project, or the failure of the parties to reach an agreement on compensation and/or schedule adjustments necessitated by such changes. In the event of a termination not the fault of SANDERSON STEWART, the Client shall pay SANDERSON STEWART, in addition to payment for services rendered and reimbursable expenses incurred, all expenses incurred by SANDERSON STEWART in connection with the orderly termination of this Agreement, including, but not limited to, demobilization, reassignment of personnel, associated overhead costs, and all other expenses resulting from the termination. CONSEQUENTIAL DAMAGES: Notwithstanding any other provision in this Agreement, neither the CLIENT nor SANDERSON STEWART, their respective officers, directors, shareholders, partners, employees, agents, members, subconsultants, or employees shall be liable to the other or shall make any claim for any incidental, indirect, or consequential damages arising out of or in any way connected to the project or this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation, or any other consequential damages that either party may have incurred from any cause of action. DISPUTE RESOLUTION, VENUE, AND CHOICE OF LAW: Any claim arising out of or related to this Agreement (except for Collection Procedures employed by SANDERSON STEWART and those waived or barred as provided elsewhere in this Agreement), shall be subject to mediation as a condition precedent to arbitration or to the institution of legal or equitable proceedings by either party. The parties shall endeavor to resolve their claims by mediation. Either party may file a request for mediation. Mediation shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the parties or by court order. The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in Billings, Montana. Any agreements reached in mediation shall be enforceable as settlement agreements by any court having jurisdiction. Venue for any arbitration or litigation arising out of this Contract shall be in the Thirteenth Judicial District, Yellowstone County, Montana. This Agreement shall be governed by, and interpreted under, the law of the State of Montana. ENTIRE AGREEMENT: This Agreement is the entire agreement between SANDERSON STEWART and CLIENT. It supersedes all prior communications, understandings, and agreements, whether oral or written. Any amendment or modification to this Agreement must be written and executed by both SANDERSON STEWART and CLIENT.