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HomeMy WebLinkAbout25-265 - Contract - Maul, Foster, & Alongi Inc. - Site Assessment: Nelson SIde Channel Salmon Habitat ProjectCity of Tukwila Contract Number: 25-265 6200 Southcenter Boulevard, Tukwila WA 98188 Council Approval N/A PROFESSIONAL SERVICES AGREEMENT (Includes consultants, architects, engineers, accountants, and other professional services) THIS AGREEMENT is entered into between the City of Tukwila, Washington, hereinafter referred to as "the City", and Maul, Foster & Alongi, Inc., hereinafter referred to as "the Consultant", in consideration of the mutual benefits, terms, and conditions hereinafter specified. 1. Project Designation. The Consultant is retained by the City to perform Environmental Site Assessment Phase I services in connection with the project titled Nelsen Side Channel Salmon Habitat. 2. Scope of Services. The Consultant agrees to perform the services, identified on Exhibit "A" attached hereto, including the provision of all labor, materials, equipment and supplies. 3. Duration of Agreement; Time for Performance. This Agreement shall be in full force and effect for a period commencing upon execution and ending December 31, 2025, unless sooner terminated under the provisions hereinafter specified. Work under this Agreement shall commence upon written notice by the City to the Consultant to proceed. The Consultant shall perform all services and provide all work product required pursuant to this Agreement no later than December 31, 2025 unless an extension of such time is granted in writing by the City. 4. Payment. The Consultant shall be paid by the City for completed work and for services rendered under this Agreement as follows: A. Payment for the work provided by the Consultant shall be made as provided on Exhibit "B" attached hereto, provided that the total amount of payment to the Consultant shall not exceed $3,900.00 without express written modification of the Agreement signed by the City. B. The Consultant may submit vouchers to the City once per month during the progress of the work for partial payment for that portion of the project completed to date. Such vouchers will be checked by the City and, upon approval thereof, payment shall be made to the Consultant in the amount approved. C. Final payment of any balance due the Consultant of the total contract price earned will be made promptly upon its ascertainment and verification by the City after the completion of the work under this Agreement and its acceptance by the City. D. Payment as provided in this section shall be full compensation for work performed, services rendered, and for all materials, supplies, equipment and incidentals necessary to complete the work. E. The Consultant's records and accounts pertaining to this Agreement are to be kept available for inspection by representatives of the City and the state of Washington for a period of three (3) years after final payments. Copies shall be made available upon request. 5. Ownership and Use of Documents. All documents, drawings, specifications and other materials produced by the Consultant in connection with the services rendered under this Agreement shall be the property of the City whether the project for which they are made is executed or not. The Consultant shall be permitted to retain copies, including reproducible copies, of drawings and specifications for information, reference and use in connection with the Consultant's endeavors. The Consultant shall not be responsible for any use of the said documents, drawings, specifications or other materials by the City on any project other than the project specified in this Agreement. 6. Compliance with Laws. The Consultant shall, in performing the services contemplated by this Agreement, faithfully observe and comply with all federal, state, and local laws, ordinances and regulations, applicable to the services rendered under this Agreement. 7. Indemnification. The Consultant shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the acts, errors or omissions of the Consultant in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Consultant's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 8. Insurance. The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. Consultant's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Consultant to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A. Minimum Amounts and Scope of Insurance. Consultant shall obtain insurance of the types and with the limits described below: 1. Automobile Liability, insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Automobile Liability insurance shall cover all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate. Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop -gap independent contractors and personal injury and advertising injury. The City shall be named as an additional insured under the Consultant's Commercial General Liability insurance policy with respect to the work performed for the City using an additional insured endorsement at least as broad as ISO endorsement form CG 20 26. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. CA revised May 2020 Page 2 4. Professional Liability with limits no less than $2,000,000 per claim and $2,000,000 policy aggregate limit. Professional Liability insurance shall be appropriate to the Consultant's profession. B. Public Entity Full Availability of Contractor Limits. If the Contractor maintains higher insurance limits than the minimums shown above, the Public Entity shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by the Contractor, irrespective of whether such limits maintained by the Contractor are greater than those required by this Contract or whether any certificate of insurance furnished to the Public Entity evidences limits of liability lower than those maintained by the Contractor. C. Other Insurance Provision. The Consultant's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance with respect to the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant's insurance and shall not be contributed or combined with it. D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage. Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. Upon request by the City, the Consultant shall furnish certified copies of all required insurance policies, including endorsements, required in this Agreement and evidence of all subcontractors' coverage. F. Notice of Cancellation. The Consultant shall provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days notice to the Consultant to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Consultant from the City. 9. Independent Contractor. The Consultant and the City agree that the Consultant is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither the Consultant nor any employee of the Consultant shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or for contributing to the state industrial insurance program, otherwise assuming the duties of an employer with respect to the Consultant, or any employee of the Consultant. 10. Covenant Against Contingent Fees. The Consultant warrants that he has not employed or retained any company or person, other than a bonafide employee working solely for the Consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any company or person, other than a bonafide employee working solely for the Consultant, any fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon or resulting from the award or making of this contract. For breach or violation of this warrant, the City shall have the right to annul this contract without liability, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. CA revised May 2020 Page 3 11. Discrimination Prohibited. Contractor, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation, the presence of any disability, or any other protected class status under state or federal law, in the selection and retention of employees or procurement of materials or supplies. 12. Assignment. The Consultant shall not sublet or assign any of the services covered by this Agreement without the express written consent of the City. 13. Non -Waiver. Waiver by the City of any provision of this Agreement or any time limitation provided for in this Agreement shall not constitute a waiver of any other provision. 14. Termination. A. The City reserves the right to terminate this Agreement at any time by giving ten (10) days written notice to the Consultant. B. In the event of the death of a member, partner or officer of the Consultant, or any of its supervisory personnel assigned to the project, the surviving members of the Consultant hereby agree to complete the work under the terms of this Agreement, if requested to do so by the City. This section shall not be a bar to renegotiations of this Agreement between surviving members of the Consultant and the City, if the City so chooses. 15. Applicable Law: Venue: Attorney's Fees. This Agreement shall be subject to, and the Consultant shall at all times comply with, all applicable federal, state and local laws, regulations, and rules, including the provisions of the City of Tukwila Municipal Code and ordinances of the City of Tukwila. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. Venue for any action arising from or related to this Agreement shall be exclusively in King County Superior Court. 16. Severability and Survival. If any term, condition or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement. 17. Notices. Notices to the City of Tukwila shall be sent to the following address: City Clerk City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 Notices to Consultant shall be sent to the following address: Maul, Foster & Alongi, Inc. Attn: Caitlin Bryan, Principal Environmental Scientist 2815 2nd Ave, Suite 540 Seattle, WA 98121 18. Entire Agreement: Modification. This Agreement, together with attachments or addenda, represents the entire and integrated Agreement between the City and the Consultant and supersedes all prior negotiations, representations, or agreements written or oral. No amendment or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. CA revised May 2020 Page 4 DATED this 8th day of September 20 25 CITY OF TUKWILA Signed by: Jen Tetatzin, Public Works Director ATTEST/AUTHENTICATED: Signed by: -EB13�1�tF�6M5�3 ... Andy Youn-Barnett, City Clerk APPROVED AS TO FORM: L by: d-. S&t'A Office of the City Attorney CONSULTANT: DocuSigned by: By:w Printed Name: Caitlin Bryan Title: Principal Environmental Scientist CA revised May 2020 Page 5 Exhibit A MAUL FOSTER ALONGI 2815 2nd Avenue. Suite 540 . Seattle.. WA 98121 . 206 858 7620 www..mciulfoster.com August 29, 2025 Project No. M0085.05.001 Joshua Hopkins City of Tukwila Sent via email to: Jos^ h!Lu..a....Ik:.IL.o.uIIS.U..ir,7i.^.�@...(...9:�..k".!LIII„�.W....g�2y Re: Tax lot 000320-0007 Tukwila, Washington, 98188: Proposal for Phase I Environmental Site Assessment Dear Joshua Hopkins: Maul Foster & Alongi, Inc. (MFA), appreciates the opportunity to present this proposal to conduct a Phase I environmental site assessment (Phase I ESA) for the above -referenced property (the Property). Background The Property consists of 1.46 acres of vacant land located at tax lot 000320-0007 in Tukwila, Washington 98188. Scope of Work MFA will conduct a Phase I ESA at the Property. We have designed this scope of work to meet ASTM International Practice E1527-21 and the all appropriate inquiries (AAI) standard under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 40 Code of Federal Regulations Part 312. An environmental scientist with relevant education and experience in performing Phase I ESAs will direct this Phase I ESA. MFA has developed this scope of work for the Phase I ESA to provide the necessary information regarding the potential for impacts to site environmental media, allowing the user to satisfy one of the requirements to qualify for the bona fide prospective purchaser, innocent landowner, or contiguous property owner limitations on CERCLA liabilities. The purpose of the Phase I ESA is to identify evidence of recognized environmental conditions (RECs). ASTM E1527-21 defines RECs as (1) the presence of hazardous substances or petroleum products in, on, or at the Property due to a release to the environment; (2) the likely presence of hazardous substances or petroleum products in, on, or at the Property due to a release or likely release to the environment; or (3) the presence of hazardous substances or petroleum products under conditions that pose a material threat of a future release to the environment. The term REC is not intended to include de minimis conditions that generally do not present a material risk of harm to public health or the environment and that generally would not be the subject of an enforcement action if brought to the attention of appropriate governmental agencies. MFA will conduct AAI regarding the potential for RECs at the Property. AAI refers to an appropriate level of assessment that balances time and cost demands with an adequate reduction in uncertainty regarding unknown conditions as consistent with CERCLA §101(35)(B)(iii). R)shu aIHIqplkc iru s F"ire.)�ex it. IN o. IM0085.05.00 Aut,!,ust 29, 2025 Page 2 The scope of work for this Phase I ESA specifically excludes evaluation of the following issues: asbestos -containing building materials, lead-based paint, lead in drinking water, wetlands, regulatory compliance, cultural and historic resources, industrial hygiene, health and safety, ecological resources, endangered species, indoor air quality, biological agents, toxic fungus, mold or microbial growth conditions, naturally occurring radon, high-voltage power lines, and substances not defined as hazardous substances (including some substances generally referred to as emerging contaminants). Fluorescent light ballasts, caulk, paint, or other materials that may contain polychlorinated biphenyls and that are located inside or are part of a structure are outside the scope of this ESA. No environmental assessment can wholly eliminate uncertainty regarding the potential for RECs in connection with a property. A Phase I ESA is intended to reduce but not eliminate uncertainty regarding the potential for RECs in connection with a property. Ifleview fl urvuuIlatory Agency If cit s and [-IIl f'uIl Doco,urnents MFA will retain a subcontractor to search publicly available state and federal environmental databases within the ASTM -specified distances. MFA assumes spending up to two hours reviewing environmental records and reports (e.g., prior Phase I ESA reports) provided by the client, owner, or key site manager. This proposal includes issuance of a regulatory file review request, if necessary, to clarify information contained in the standard environmental databases pertaining to the Property and adjacent properties. Regulatory files received electronically before the conclusion of the agreed -on time frame for this scope of work will be included in MFA's review. I1°°lIistar°Ical lLand Use MFA will review available sources of historical land use information to develop a chronology of the Property's development and operational history. MFA's scope of work and cost estimate do not include reviewing the history of adjoining properties. MFA will use standard sources of historical information to identify prior uses of the Property. We will consult one or more of the following standard historical sources: • Aerial photographs • Fire insurance maps • Property tax files • Recorded land title records (if provided by client) • U.S. Geological Survey 7.5 -minute topographic map • Local street directories • Building department records • Zoning or land use records • Fire marshal records • Other historical sources R)shu,ua HIqpkl iru s ut,uJst 29, 2025 Site li°°le co n Ire li ssa Ire c F"ire.)�ex it. IN o. IM0085.05.00 Fuge 3 MFA will conduct site reconnaissance to obtain information that may suggest the presence of RECs in connection with the Property. We will need authorization to access the Property. During the site visit, MFA will observe the uses and conditions of the Property, consistent with ASTM E1527-21, to the extent that they can be visually or physically observed. MFA will visually observe the periphery and interior of the Property as well as the periphery of all structures on the Property, if applicable. We will observe accessible areas inside structures. MFA will not look under floors, above ceilings, or behind walls. We will also view the Property and adjoining properties from adjacent public thoroughfares. Interviews For purposes of this Phase I ESA, MFA will attempt to interview current and past Property owners and operators. MFA may also attempt to contact current and past owners and operators of adjacent properties that may have environmental issues. The objective of the interviews is to obtain information indicating RECs in connection with the Property. The interviews may be by telephone, in person, or in writing. The questions asked during the interview will attempt to obtain information about uses and conditions of the Property, identify the presence of RECs, and evaluate the potential for contamination. MFA will attempt to schedule the interviews to coincide with the site reconnaissance, if appropriate. MFA will also make a reasonable attempt to interview at least one government official by telephone concerning the Property. The official will be from one of the following agencies: • Local or state agencies that have jurisdiction over hazardous waste disposal or hazardous - substance releases • The local fire department that serves the Property • A local health department or the state department of health l["hasc lI li, cl clr ["reparation MFA will prepare a signed Phase I ESA report that generally follows the format recommended in ASTM E1527-21 and will provide it electronically. The Phase I ESA report will identify the environmental professional(s) involved in conducting the assessment and will include, as an attachment, a statement of each professional's qualifications. If requested, MFA can provide the report as hard copies and/or on a CD or USB drive; this will result in additional charges not included in M FA's cost estimate. Cost Estimate The fixed fee to perform the proposed work is $3,900. Schedule MFA will initiate the scope of work described in this document when we receive your authorization to proceed. We will provide the Phase I ESA report to you within three weeks from authorization to proceed, assuming prompt access to the site, the Property owner, and the occupants for site reconnaissance and interviews. This proposal is valid for 60 days. R)shu,ua HIqpkl iru s F"ire.)lex it. IN o. IM0085.05.00 Fuge 4. After you have reviewed this submittal, please indicate your approval of the proposal by signing below. You will be receiving a fully executed copy through Adobe Sign; please retain it for your records. We appreciate the opportunity to submit this proposal and look forward to talking with you soon. Sincerely, Maul Foster & Alongi, Inc. Caitlin Brvan Principal Environmental Scientist Attachment General Terms and Conditions Aut,!,ust 29, 2025 F"ire.)�ex it. IN o. IIVI0085.05.00 Page The above proposal, including all attachments, has been read and understood and is hereby agreed to and accepted. It is agreed that the attached General Terms and Conditions (which contains a limitation of liability provision), and Addendum(s), if any, form an express part of the Contract, as evidenced by my signature below: City of Tukwila By Name (please print) Date Title /i M......A...... U....... L...........F.,,..,......5,..,,.T,..,,.E...... R............A.................N......G......�. www.moulfoster.com elle iiir M. VIII !"einirns and Cainliii°tiii iii Article 1—Agreement These General Terms and Conditions (the "Agreement") govern all professional services, labor, materials, and equipment (collectively the "Services") furnished by Maul Foster & Alongi, Inc. ("MFA"), pursuant to the attached proposal (the "Proposal") and on behalf of MFA's client ("CLIENT"). MFA's performance of its Services under this Agreement is conditioned on the acceptance of all the following terms and conditions by CLIENT. This Agreement does not need to be signed by CLIENT to be effective. Article 2—Professional Responsibility MFA shall perform the Services specified in this Agreement consistent with the level of care and skill ordinarily exercised by other professional consultants under similar circumstances at the same time the Services are performed; subject, however, to any express limitations established by the CLIENT as to the degree of care and amount of time and expense to be incurred and any other limitations contained in this Agreement. No other representation, warranty, or guaranty, express or implied, is included in or intended by this Agreement or any other of MFA's services, proposals, agreements, or reports contemplated by this Agreement. Article 3—Independent Contractor Status; Legal Relationship The parties intend that MFA, in performing Services specified in this Agreement, shall act as an independent contractor and shall have control of its work and the manner in which it is performed. MFA shall be free to contract for similar services to be performed for other individuals or entities while it is under contract with CLIENT. The parties further intend that nothing in this Agreement shall be construed or interpreted as requiring MFA to assume the status of an owner, operator, generator, person who arranges for disposal, transporter, or storer, as those terms, or any other similar terms, are used in any federal, state, or local statute, regulation, order, or ordinance governing the treatment, storage, handling, and disposal of any toxic or hazardous substance or waste. Article 4—Billing And Payment Unless stated otherwise in the work order, invoices will be submitted monthly and shall be due and payable upon receipt. Payment shall be made to Maul Foster & Alongi, Inc., and delivered to: Maul Foster & Alongi, Inc. 330 E Mill Plain Boulevard, Suite 405 Vancouver, WA 98660 Except as otherwise agreed in writing, CLIENT agrees that there shall be no retention or holdback of the fee for the Services. Interest at the rate of one and one-half percent (1.5%) per month, but not exceeding the maximum rate allowable by law, shall be payable on any amounts that are due but unpaid within thirty (30) days from receipt of invoice, payment to be applied first to accrued late payment charges and then to the principal unpaid amount. MFA may, at its option, withhold performance of the Services and/or delivery of reports and any other data pending payment by CLIENT. 1 Article 5 --Limitation of Liability CLIENT agrees to limit the liability of MFA, its officers, directors, shareholders, affiliates, employees, agents, and representatives (the "MFA Parties") to CLIENT for all claims and legal proceedings of any type arising out of or relating to the performance of Services under this Agreement (including, but not limited to, MFA's breach of the Agreement, its professional negligence, errors and omissions and other acts) to the greater of $100,000 or the amount of MFA's Fee. Failure of CLIENT to give written notice to MFA of any claim of negligent act, error, or omission within one (1) year of performance shall constitute a waiver of such claim by CLIENT. In no event shall MFA be liable for any direct, indirect, special, incidental, exemplary, or consequential loss or damages sustained from any cause or arising out of any legal theory, whether contract, negligence, strict tort liability, or otherwise. MFA is solely responsible for performance of this contract, and no affiliated company, director, officer, employee, or agent shall have any legal responsibility hereunder. Article C—Indemnification Subject to the limitation of liability above, MFA shall indemnify and hold CLIENT harmless from the proportionate share of any claim, suit, liability, damage, injury, cost, or expense, including attorneys' fees, or other loss (hereafter collectively called "Loss") arising out of (a) MFA Parties' breach of this Agreement or (b) MFA Parties' willful misconduct or negligence in connection with the performance of the Services under this Agreement. CLIENT agrees to indemnify, defend, and hold harmless MFA Parties from any Loss arising out of (a) CLIENT's breach of the Agreement, or (b) CLIENT's willful misconduct or negligence in connection with performance of the Agreement. To the extent a portion of such Loss is caused by MFA's negligence, CLIENT shall indemnify and hold MFA harmless from the proportional share of the Loss resulting from the acts or negligence of CLIENT. Article 7 -Term of Agreement; Termination If any Services agreed to be performed hereunder are terminated, CLIENT will pay MFA for Services performed to the date MFA receives notice of termination and shall further pay for any costs reasonably incurred by MFA in connection with terminating Services, including, but not limited to, the costs of completing analysis, records, and reports necessary to document job status at the time of termination and costs associated with termination of subcontractor contracts. The Schedule of Charges included in the work order will be used when establishing costs reasonably incurred by MFA up to the date of client services termination. If no schedule of charges is included, MFA's standard Schedule of Charges at the time of termination will be used. The obligations of the parties to indemnify and the limitations on liability set forth in this Agreement shall survive the expiration or termination of this Agreement. Article 8—Time of Performance/Force Majeure MFA makes no warranties regarding the time of completion of Services and shall not be in default of performance under this Agreement where such performance is prevented, suspended, or delayed by any cause beyond MFA's control, including but not limited to, war, terrorism, pestilence, act of God, mechanical malfunction, unavailability of energy, unavailability of materials, pandemic, cyberattack, accident, fire, explosion, public protest, or governmental actions or legislation. Neither party will hold the other responsible for damages for delays in performance caused by acts of God or other events beyond the control of the other party and which could not have been reasonably foreseen or prevented. If such events occur, it is agreed that both parties will use their best efforts to overcome all 2 difficulties arising and to resume as soon as reasonably possible performance of Services under this Agreement. Delays within the scope of this provision will extend the contract completion date for specified services commensurately or will, at the option of either party, make this Agreement subject to termination or to renegotiation. Article 9—Suspension of Services CLIENT may suspend further performances of Services by MFA by ten (10) days prior written notice. If payment of invoices by CLIENT is not maintained on a thirty (30) day current basis, MFA may suspend further performance until such payment is restored to a current basis. Suspensions for any reason exceeding thirty (30) days will, at the option of MFA, make this Agreement subject to termination or renegotiation. All suspensions will extend the contract completion date for specified services commensurately, and MFA will be paid for services performed to the suspension date plus suspension charges. Suspension charges are defined as those charges relating to costs incurred which are directly attributable to suspension of services, including, but not limited to, personnel rescheduling, equipment rescheduling, and/or reassignment adjustments. Article 10—Changed Conditions If, during the course of the performance of the Services under this Agreement, conditions or circumstances develop or are discovered which were not contemplated by MFA at the commencement of this Agreement, and which materially affect MFA's ability to perform the Services or which would materially increase the costs to MFA of performing the Services, then MFA shall notify the CLIENT in writing of the newly discovered conditions or circumstances, and CLIENT and MFA shall renegotiate in good faith the terms and conditions of this Agreement. If amended terms and conditions cannot be agreed upon within thirty (30) days after the mailing of such notice, MFA may terminate the Agreement and be compensated as set forth in the section of this Agreement entitled TERM OF AGREEMENT; TERMINATION. Article 11—Insurance MFA agrees to use its best efforts to maintain Professional Liability, Commercial General Liability, Automobile Liability, statutory Worker's Compensation, and Employers' Liability insurance coverage during the period of performance of services hereunder in the following minimum amounts: A Worker's Compensation Employer's Liability Commercial General Liability B. (including Contractual Liability) Bodily Injury Property Damage Comprehensive Automobile Liability (Owned, Hired, and Non -owned C• Vehicles) Bodily Injury Property Damage D• Professional Liability: Limits of Liability Statutory $1,000,000 $1,000,000 each occurrence and aggregate Limits of Liability $1,000,000 combined single limits for each accident $1,000,000 for each occurrence or aggregate a At CLIENT's request, insurance certificates will be provided by MFA to evidences uch coverages. Article 12—Hazardous or Unsafe Conditions CLIENT has fully informed MFA of the type, quantity, and location of any hazardous, toxic, or dangerous materials or unsafe or unhealthy conditions which CLIENT knows or has reason to suspect exists at all real property where the Services are to be performed (the "Project Site"). CLIENT shall immediately inform MFA when it becomes aware of any new information as to the foregoing which may affect the project, such as information to constitute a CHANGED CONDITION subject to the provisions of Article 10 of this Agreement. MFA shall not be responsible for the health and safety of any persons other than the MFA Parties, nor shall have any responsibility for the operations, procedures, or practices of persons or entities other than the MFA Parties. Article 13—Subsurface Obstructions CLIENT shall provide to MFA plans which designate the location of all subsurface structures, such as pipes, tanks, cables, and utilities within the property lines of the Project Site. CLIENT shall be responsible for any damage inadvertently caused by MFA to any subsurface structure not so designated. CLIENT warrants the accuracy of any information supplied by it to MFA and understands and agrees that MFA is entitled to and may rely upon the accuracy of any and all information supplied by CLIENT without independently verifying its accuracy. MFA may assist CLIENT in obtaining locator services to help CLIENT in identifying subsurface obstructions, but CLIENT agrees to indemnify and hold MFA harmless against any Loss arising out of or connected with CLIENT's inaccurate identification of underground obstructions. Article 14—Reporting and Disposal CLIENT shall be solely responsible for notifying all appropriate federal, state, regional, local, or other governmental agencies of the existence of any hazardous, toxic, or dangerous materials on or in the Project Site or discovered during the performance of this Agreement. MFA may, in its sole discretion, agree to notify such agencies on behalf of CLIENT, as CLIENT's agent. However, no agreement by MFA to make such notification on behalf of CLIENT shall be construed to be an agreement to make such notification on any preceding or subsequent occasions. CLIENT shall be solely responsible for arranging and paying the costs to lawfully store, treat, recycle, dispose of, or otherwise handle, hazardous or toxic substances or wastes, including, but not limited to, used or unused samples, drill cuttings, water from well development and/or testing left on-site by MFA in connection with performing Services under this Agreement. MFA may, in its sole discretion, agree to make such arrangements on behalf of CLIENT, as CLIENT's agent. However, no agreement by MFA to make such arrangements of behalf of CLIENT shall be construed to be an agreement to make such arrangements on any proceeding or subsequent occasions. Article 15 --Samples, Drill Cuttings and Well Water MFA shall not be obligated to preserve soil, rock, water, and other samples obtained from the Project Site as MFA deems necessary for longer than ninety (90) days. CLIENT agrees to receive any such unused sample material for its sole, lawful storage, treatment, or disposal at any time after expiration of the ninety (90) day term. Article 16—Right of Entry and Unavoidable Damages CLIENT agrees to grant or arrange for right of entry when deemed necessary by MFA to perform the Services at the Project Site, whether or not the Project Site is owned by CLIENT. CLIENT recognizes that the use of 4 investigative equipment and practices may unavoidably alter conditions or affect the environment at the Project Site. While MFA will take all reasonable precautions to minimize damage to the Project Site, the cost of repairing any such damage shall be borne by CLIENT, and it is understood that the correction of such damage is not part of the Services or the Fee contemplated by this Agreement. Article 17 Subcontractors MFA may, in its sole discretion, subcontract for the services of others without obtaining CLIENT's consent where MFA deems it necessary or desirable to have others perform certain services. If MFA, in its sole discretion, deems it necessary or desirable to obtain Client's advance concurrence as to any proposed subcontract, MFA may make a written request to CLIENT to review the qualifications and suggested scope of work to be performed by such proposed subcontractor and CLIENT shall either grant or deny such concurrence within a reasonable time after receipt of such request. Article 18—Ownership and Reuse of Documents All documents furnished by MFA pursuant to this Agreement are instruments of MFA's services. MFA shall retain all ownership and property interests therein, including all common law, statutory, and other reserved rights, including copyrights. Such documents are not intended or represented to be suitable for reuse by CLIENT or others. Any such reuse without specific written verification and adaptation by MFA for the specific purpose intended will be at the reuser's sole risk and without liability or legal exposure to MFA. To the fullest extent permitted by law, CLIENT agrees to indemnify and hold harmless MFA Parties from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from CLIENT's use of MFA's documents under this section. Any transfer of electronic data hereunder is solely for CLIENT's convenience "as is" without warranty as to contents and is not the project deliverable unless specifically agreed to the contrary. MFA disclaims all warranties express or implied with regard to any electronic data provided hereunder, including any warranties of merchantability or fitness for a particular purpose. The provisions of this section shall survive the expiration or termination of this Agreement. Article 19—No Third -Party Beneficiaries There are no third -party beneficiaries of this Agreement, and no third party shall be entitled to rely upon any work performed or reports prepared by MFA hereunder for any purpose whatsoever. CLIENT shall indemnify and hold MFA harmless against any liability to any third party for any Loss arising out of or relating to the reliance by any such third party on any work performed or reports issued by MFA hereunder. The provisions of this section shall survive the expiration or termination of this Agreement. Article 20—Designs and Discoveries In the course of providing Services to CLIENT, MFA may utilize or develop designs, ideas, discoveries, inventions, or improvements of these (collectively "Ideas"), made by the MFA Parties. CLIENT agrees that MFA's utilization or development of such Ideas does not grant CLIENT any right in the form or ownership or license to such Ideas. All Ideas utilized or developed while providing CLIENT Services shall be deemed to be property of MFA. Article 21—Laws and Regulations Both parties will be entitled to regard all applicable laws, rules, regulations, and orders issued by any federal, state, regional, or local regulatory body as valid and may act in accordance therewith until such time as the same may be modified or superseded by such regulatory body or invalidated by final judgment in a court of 5 competent jurisdiction, unless prior to such final judicial determination, the effectiveness of such law, rule, or regulation has been stayed by an a ppropriatejudicial or administrative body having jurisdiction. In the event there are changes in existing laws, codes, regulations, orders or ordinances, or the interpretation thereof, following the performance of professional services, CLIENT agrees to defend, indemnify, and hold MFA harmless from any and all claims, including claims for fines or penalties imposed, resulting from or alleged to have resulted from noncompliance with or nonincorporation of such changes in professional services prior to the effectiveness of such changes. Article 22—Assignment Neither party to this Agreement may delegate, assign, or otherwise transfer its rights and interests or duties and obligations under this Agreement without prior written consent of the other party. Article 23—Dispute Resolution Any claim, controversy, dispute, or disagreement between the parties arising out of or relating to this Agreement, including but not limited to those arising out of or relating to any Work Order Authorization and including those based on or arising from any statute, constitution, regulation, ordinance, rule, or any alleged tort (collectively "Dispute"), shall be resolved in accordance with the following dispute resolution procedure: 1. CLIENT and MFA agree that discussing and reaching an agreement is often the most cost-effective and beneficial method to resolve a dispute. In the event that any Dispute arises between them, the parties agree to hold a meet -and -confer session between one or more principals of each party with authority to settle the dispute. 2. If the parties cannot reach a mutually acceptable resolution, they shall proceed to non-binding mediation using a mutually agreed upon mediator, with each party being responsible for one-half of the mediator's fee. Mediation is an express condition precedent to binding arbitration, as provided below. 3. Unless successfully resolved as provided above, the parties agree that any Dispute shall be resolved by binding arbitration with the then -effective arbitration rules of Arbitration Services of Portland, Inc., and anyjudgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. Article 24—Attorneys' Fees and Costs If any action or proceeding is commenced to enforce or interpret any of the terms or conditions of this Agreement or the performance thereof, including the collection of any payments due hereunder, the prevailing party will be entitled to recover all reasonable attorneys' fees, costs, and expenses, including staff time at current billing rates, expert witness fees, court costs, and other claim -related expenses. If MFA is requested to respond to any mandatory orders for the production of documents or witnesses on CLIENT's behalf regarding work performed by MFA, CLIENT agrees to pay all costs and expenses incurred by MFA not reimbursed by others in responding to such order, including attorney's fees, staff time at current billing rates, and reproduction expenses. Article 25—Governing Law and Venue This Agreement shall be subject to, interpreted, and enforced according to the laws of the State from which MFA's services are procured. The parties submit to jurisdiction in Clark County, Washington, and agree that the venue for any and all disputes arising out of or related to this Agreement shall be in Clark County, Washington. Each party further agrees that, in any litigation or arbitration arising out of or related to this 6 Agreement, the party, and the party's officers, employees, and agents shall appear, at that party's expense, for deposition in Clark County, Washington. Article 2& --Severability Any provision of this Agreement held in violation of any law will be deemed stricken and all remaining provisions shall continue valid and binding upon the parties. The parties will attempt in good faith to replace any invalid or unenforceable provision(s) of this Agreement with provisions which are valid and enforceable and which come as close as possible to expressing the intention of the original provisions. Article 27—Entire Agreement This Agreement constitutes the entire agreement between CLIENT and MFA. It supersedes any and all prior written or oral agreements, negotiations, or proposals, or contemporaneous communications with respect to the subject matter hereof, and has not been induced by any representations, statements, or agreements other than those herein expressed. No amendment to this Agreement hereafter made between the parties will be binding on either party unless reduced to writing and signed by authorized representatives of both parties.