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3.7 GeoTech Proposal0 Otkgo MINNESOTA V DEPARTMENT INFORMATION Request for City Council Action ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE: Utilities Utility Manager Neidermeier July 12, 2021 PRESENTER(s) REVIEWED BY: ITEM #: Consent City Administrator/Finance Director Flaherty AE2S Engineer Schaefer 3.7 Geotechnical Services - West WWTF STRATEGIC VISION MEETS: I THE CITY OF OTSEGO: for the "Otsego West WWTF Phase 1 Improvements — Geotechnical Evaluation" to Braun-Intertec. Is a strong organization that is committed to leading the community through innovative communication. X Has proactively expanded infrastructure to responsibly provide core services. No Is committed to delivery of quality emergency service responsive to community needs and expectations in a cost-effective manner. The AE2S design team solicited two geotechnical proposals on behalf of the City similar to previous projects Is a social community with diverse housing, service options, and employment opportunities. geotechnical recommendations for the structural foundation design, road design, and stormwater Is a distinctive, connected community known for its beauty and natural surroundings. AGENDA ITEM DETAILS RECOMMENDATION: City Staff is recommending that the City Council award the contract for professional geotechnical services for the "Otsego West WWTF Phase 1 Improvements — Geotechnical Evaluation" to Braun-Intertec. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? Yes No BACKGROUND/JUSTIFICATION: The AE2S design team solicited two geotechnical proposals on behalf of the City similar to previous projects and consistent with the West WWTF Phase 1 scope. The geotechnical work will include soil borings and geotechnical recommendations for the structural foundation design, road design, and stormwater infiltration. Proposals were received as follows: • Braun-Intertec: $39,735 • American Engineering and Testing: $42,756 AE2S reviewed the proposals and recommends Braun-Intertec with no reservations. Braun-Intertec provided the geotechnical services for the recent East WWTF Biosolids project as well as the construction - phase materials testing services. The one caveat is that the AE2S design team recommends adding additional time to the geotechnical investigation schedule based upon the timing of completing City Attorney review. SUPPORTING DOCUMENTS ATTACHED: 0 Proposal — Braun Intertec POSSIBLE MOTION PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THEM IN UTES: Motion to authorize City Staff to enter into the agreement with Braun-Intertec for the "Otsego West WWTF Phase 1 Improvements — Geotechnical Evaluation" in the amount of $39,735 contingent upon City Attorney review and approval. RIIDG.F_T INFORMATION FUNDING: BUDGETED: Fund 602 — Sanitary Sewer Utility Yes BRAUN INTERTEC The Science You Build On. June 23, 2021 City of Otsego c/o Nick Thompson Advanced Engineering and Environmental Services, LLC 1815 Schafer Street, Suite 301 Bismarck, ND 58501 Re: Proposal for a Geotechnical Evaluation Otsego West WWTF Phase 1 Improvements 7551 Lancaster Avenue NE Otsego, Minnesota Dear Mr. Thompson: Braun Intertec Corporation 11001 Hampshire Avenue S Minneapolis, MN 55438 Proposal QTB141526 Phone: 952.995.2000 Fax: 952.995.2020 Web: braunintertec.com Braun Intertec Corporation respectfully submits this proposal to complete a geotechnical evaluation for the planned Otsego West Wastewater Treatment Facility (WWTF) Phase 1 Improvements project located at the above referenced site. Project Information Per our correspondence with you and the provided RFP dated June 15, 2021, we understand the City of Otsego is planning to expand the existing West WWTF site. The proposed construction will include several new buildings, a parking lot, drive lanes, and utilities. As part of project design, Advanced Engineering and Environmental Services, LLC (AE2S), on behalf of the City of Otsego, is requesting soil borings, laboratory testing, and a geotechnical evaluation. Purpose The purpose of our geotechnical evaluation will be to characterize subsurface geologic conditions at selected exploration locations, evaluate their impact on the project, and provide geotechnical recommendations for use in the design and construction of the proposed facility improvements. Scope of Services We propose the following tasks to help achieve the stated purpose. If we encounter unfavorable or unforeseen conditions during the completion of our tasks that lead us to recommend an expanded scope of services, we will contact you to discuss the conditions before resuming our services. AA/EOE City of Otsego Proposal QTB141526 June 23, 2021 Page 2 Site Access Based on the soil boring location map provided in the RFP and available aerial photographs, it appears the borings will be located within relatively flat, open, grass covered areas of the site. Provided site conditions are dry, we anticipate a truck -mounted drill rig will be able to access many of the proposed boring locations. Boring locations denoted as SB -13 to SB -18 are planned on the west side of the facility, beyond a perimeter fence. Access to this area appears to be limited to a narrow path on the north side of the facility, adjacent to a creek. Therefore, we anticipate an ATV -mounted drill rig will be required to access this portion of the site. We note if site conditions warrant use of an ATV -mounted drill rig at other locations, additional fees will apply. We assume there will be no cause for delays in accessing the exploration locations. We are not including tree clearing, debris, or obstruction removal, or grading of navigable paths. Depending on access requirements, ground conditions or potential utility conflicts, our field crew may alter the exploration locations from those proposed to facilitate accessibility. Our drilling activities may also impact the vegetation and may rut the surface to access boring locations. Restoration of vegetation and turf is not part of our scope of services. Staking We understand AE2S will stake prospective subsurface locations, obtain surface elevations at those locations, and provide us with the coordinates, elevations, and a boring location map. Utility Clearance Prior to drilling or excavating, we will contact Gopher State One Call and arrange for notification of the appropriate utility vendors to mark and clear the exploration locations of public underground utilities. You, or your authorized representative, are responsible to notify us before we begin our work of the presence and location of any underground objects or private utilities that are not the responsibility of public agencies. We will not be liable for any damages resulting from unidentified or misidentified underground objects or utilities. Further, we reserve the right to stop work if underground objects or utilities are suspected or known to exist, but locations cannot be accurately determined. If private utilities are present on the site that cannot be identified by the public utility clearance, we may require the services of a private utility locator. If such a service is required, we will contact you contacting them. A private utility contractor will be an extra cost. Penetration Test Borings As requested, we propose to drill a total of 20 standard penetration test (SPT) borings for the project. Table 1 provides a summary of the proposed boring locations and depths. We will perform standard penetration tests at 2 1/2 -foot vertical intervals to a depth of about 30 feet, and at 5 -foot intervals at greater depths. BRAUN INTERTEC City of Otsego Proposal QTB141526 June 23, 2021 Page 3 Tahla 1 _ Summary of proposed Borines Location _F Type Quantity Depth (feet) Building Pad #1 SPT 12 45 Building Pad #2 SPT 6 30 Pavement SPT 2 14.9 Total 20 750 We have also made provisions to obtain four thin-walled tube samples of cohesive soils encountered from structure borings for laboratory testing. We will collect bag samples from pavement borings from the auger cuttings for laboratory testing. If the intended boring depths do not extend through unsuitable material, we will extend the borings at least 5 feet into suitable material at greater depths. The additional information will help evaluate such issues as excavation depth, consolidation settlement, and foundation alternatives, among others. If we identify a need for deeper (or additional) borings, we will contact you prior to increasing our total estimated drilled footage and submit a Change Order summarizing the anticipated additional effort and the associated cost, for your review and authorization. Groundwater Measurements If the borings encounter groundwater during or immediately after drilling of each boring, we will record the observed depth on the boring logs. Per Minnesota Department of Health (MDH) regulations, boreholes are allowed to remain open for a period of 72 hours or less. We intend to leave some of the structure boreholes open during our fieldwork and perform groundwater level rechecks, backfilling them within the 72 -hour window prior to leaving the site. However, since groundwater will often take several hours or days to equilibrate in an open borehole with cohesive soils, we anticipate the accuracy of our measurements will be low. If the groundwater levels are critical to design, we can provide additional costs associated with installation, monitoring, permitting, and removal of piezometers. MDH Notification and Sealing Record We are planning for the several borings to be 25 feet or deeper. Therefore, the Minnesota Statutes requires us to submit to the MDH by mail a "Sealing Notification Form" and submit a Sealing Record after our completion of the borings. The Sealing Notification Form requires a signature of the current property owner, or their agent, and we need to submit this to the MDH prior to our mobilization to the site. We are attaching a copy of the Sealing Notification Form at the end of this proposal for your signature. Our proposal includes the fees for the MDH Sealing Notification and the Sealing Record. BRAUN INTERTEC City of Otsego Proposal QTB141526 June 23, 2021 Page 4 Borehole Abandonment We will backfill our exploration locations immediately after completing the drilling and groundwater monitoring at each location. Minnesota Statutes require sealing temporary borings that are 15 feet deep or deeper. Based on our proposed subsurface characterization depths, we will seal 720 linear feet of borehole with grout. Our lump sum fee includes those fees associated with the sealing. Sealing boreholes with grout will prevent us from disposing of auger boring cuttings in the completed boreholes. Unless you direct us otherwise, we intend to thin -spread the cuttings around the boreholes. If we cannot thin -spread cuttings, we will put them in a container left on site. We can provide off-site disposal of the cuttings for an additional fee. overtime, subsidence of borehole backfill may occur, requiring releveling of surface grades. We are not assuming responsibility for re -leveling after we complete our fieldwork. Sample Review and Laboratory Testing We will return recovered samples to our laboratory, where a geotechnical engineer will visually classify and log them. To help classify the materials encountered and estimate the engineering properties necessary to our analyses, we have budgeted to perform the following laboratory tests as requested in the RFP. However, we anticipate the full scope of the laboratory testing may not be required to complete our analyses. If after review of the soil conditions and structure loadings we feel the full schedule is not warranted, we will communicate any deviations with you. The table below summarizes the quantity of laboratory testing included in our lump sum fee. Quantities were determined based on the testing frequency provided in the RFP. Tnhle 2 l ahoratnry Tests BRAUN INTERTEC Number ASTM Test Test Name of Tests Method Purpose Moisture content 150 D2216 Soil classification, moisture condition, and engineering properties Soil plasticity, shrink/swell potential, engineering parameters, Atterberg limits 20 D4318 suitability of soils for reuse Sieve analysis 32 D1140 Soil classification Consolidation, Evaluate settlement characteristics and time rate for settlement 2 D2435 time rate occurring Determine maximum dry density and optimum moisture content Standard Proctor 2 D698 of soil R -value 2 D2844 Engineering parameter used in designing pavements BRAUN INTERTEC City of Otsego Proposal QTB141526 June 23, 2021 Page 5 Engineering Analyses and Reporting We will use data obtained from the subsurface exploration and laboratory tests to evaluate the subsurface profile and groundwater conditions, and to perform engineering analyses related to structure and pavement design and performance, and prepare a report providing the information you have requested in the RFP. As requested, one original and three copies of ourfinal report will be submitted to the City of Otsego and AE2S. Schedule We anticipate performing our work according to the following schedule: ■ Drill rig mobilization —within about three to four weeks following receipt of written authorization. ■ Field exploration —six or seven days on site to complete the work. ■ Classification and laboratory testing—within one to two weeks after completion of field exploration. ■ Preliminary results — within one week after completion of field exploration, or by July 30, 2021 as requested. ■ Draft report submittal — within about two weeks after completion of field exploration. ■ Final report submittal —within about one week of receiving comments on the draft report or by August 18, 2021 as requested. If we cannot complete our proposed scope of services according to this schedule due to circumstances beyond our control, we may need to revise this proposal prior to completing the remaining tasks. Fees We will furnish the services described in this proposal for a lump sum fee of $39,735. Table 3 provides a breakdown of the proposed fees. Table 3. Proposed Fee Breakdown Service Fee Utility clearance $420 Drilling 20,575 Laboratory testing 9,160 Coordination, engineering analysis, and report 9,580 Total $39,735 BRAUN INTERTEC City of Otsego Proposal QTB141526 June 23, 2021 Page 6 Additional Services If necessary, we will retain a private locate company to mark private utilities that are not the responsibility of public agencies. Upon our request, the property owner must also be available to assist the private locate company in determining the presence of any underground objects or the location of utilities. We anticipate costs associated with retaining a private locate company to be approximately $300 to $600. If site conditions require an ATV -mounted drill rig to access boring locations other than where an ATV rig is currently planned (SB -13 to SB -18), an additional fee of $980 will apply. General Remarks We will be happy to meet with you to discuss our proposed scope of services further and clarify the various scope components. We appreciate the opportunity to present this proposal to you. Please sign and return a copy to us in its entirety. We based the proposed fee on the scope of services described and the assumptions that you will authorize our services within 30 days and that others will not delay us beyond our proposed schedule. BRAUN INTERTEC City of Otsego Proposal QTB141526 June 23, 2021 Page 7 We include the Braun Intertec General Conditions, which provide additional terms and are a part of our agreement. To have questions answered or schedule a time to meet and discuss our approach to this project further, please contact Jeff Casmer at 952.995.2314. Sincerely, BRAUN INTERTEC CORPORATION Jet rey D. Casmer, PE Project Engineer Joshua L. Kirk, PE Account Leader, Senior Engineer Attachments: MDH Notification Form General Conditions (1/1/18) c: Jordan Geiger, Advanced Engineering and Environmental Services, LLC The proposal is accepted, and you are authorized to proceed. Authorizer's Firm Authorizer's Signature Authorizer's Name (please print or type) Authorizer's Title Date BRAUN INTERTEC BRAUN Braun Intertec Corporation Phone: 952.995.2000 11001 Hampshire Avenue S Fax: 952.995.2020 NTE RTEC Minneapolis, MN 55438 Web: braunintertec.com The Science You Build On. June 23, 2021 City of Otsego c/o Nick Thompson Advanced Engineering and Environmental Services, LLC 1815 Schafer Street, Suite 301 Bismarck, ND 58501 Proposal QTB141526 Re: Minnesota Department of Health Well Sealing Notification Form Otsego West WWTF Phase 1 Improvements 7551 Lancaster Avenue NE Otsego, Minnesota Dear Mr. Thompson: Please have the property owner, representative or agent complete the "Well Owner" section only of the Minnesota Department of Health (MDH) Well Sealing Notification form below and return it to Braun Intertec along with the signed proposal. We will complete the remainder of the form and submit it to the MDH. NOTE: This form must be completed and returned to Braun Intertec prior to us scheduling the mobilization of our equipment and crews to the project site. WELL SEALING NOTIFICATION -WELL SEALING NOTIFICATION IS VALID FOR 18 MONTHS Minnesota Unique Well No. or W-sorios No. (Loa- Bonk It net known) Minnesota Well and Boring Sealing No. Send notification form and payment (check, money order, or credit card Information) to: Minnosola Department of Health, Well Managontent Section, P.O. Box 64502, St. Paul, Minnesota 55164-0502. H ATTN: CASHIER Well Management Section Fax Number: (651) 201-4599. FordType: I J Visa I I Mastercard H Discover Exp. Dale__ ❑ Well Sealing Notilicalion (269) Check Box II: Print Cardholder Name LJ Well is Multiple Cased 3-Digit Security Code Check Well Type: Card Number.. _ El Larger Than 0 -Inch Inside Diameter Printed on back side of card.) O Water -Supply Well J_ J Monitoring Well L7 Other_ — __. Authorized Signature County Township Namo Township No. Range No. Section No. Fraction (sm. -+ Ig.) WELL y' 7. ,W LOCATION Well Location Address City State Zip Code Est. Depth Casing Diameter Well Owner Name (Print) It Daytime Telephone Number ) WELL Well Owner Street Address City Slate Zip Coda OWNER Well Owner Signature Date WELL Well Contractor Company Name (Print) Certified Rep. Signature Date Company License No. CONTRACTOR Failure to provide proper identification and fee prior to the beginning of well sealing is a violation of Minnesota Statutes, Chapter 1031, and may result in the assessment of an administrative penally. Notification is not required to seal a boring. AA/EOE General Conditions w_- - Section 1: Agreement 1.1 Our agreement with you consists of these General Conditions and the accompanying written proposal or authorization ("Agreement"). This Agreement is the entire agreement between you and us. It supersedes prior agreements. It may be modified only in a writing signed by us, making specific reference to the provision modified. 1.2 The words "you," "we," "us," and "our" include officers, employees, and subcontractors. 1.3 In the event you use a purchase order or other documentation to authorize our scope of work ("Services"), any conflicting or additional terms are not part of this Agreement. Directing us to start work prior to execution of this Agreement constitutes your acceptance. If, however, mutually acceptable terms cannot be established, we have the right to terminate this Agreement without liability to you or others, and you will compensate us for fees earned and expenses incurred up to the time of termination. Section 2: Our Responsibilities 2.1 We will provide Services specifically described in this Agreement. You agree that we are not responsible for services that are not expressly included in this Agreement. Unless otherwise agreed in writing, our findings, opinions, and recommendations will be provided to you in writing. You agree not to rely on oral findings, opinions, or recommendations without our written approval. 2.2 In performing our professional services, we will use that degree of care and skill ordinarily exercised under similar circumstances by reputable members of our profession practicing in the same locality. If you direct us to deviate from our recommended procedures, you agree to hold us harmless from claims, damages, and expenses arising out of your direction. If during the one year period following completion of Services it is determined that the above standards have not been met and you have promptly notified us in writing of such failure, we will perform, at our cost, such corrective services as may be necessary, within the original scope in this Agreement, to remedy such deficiency. Remedies set forth in this section constitute your sole and exclusive recourse with respect to the performance or quality of Services. 2.3 We will reference our field observations and sampling to available reference points, but we will not survey, set, or check the accuracy of those points unless we accept that duty in writing. Locations of field observations or sampling described in our report or shown on our sketches are based on information provided by others or estimates made by our personnel. You agree that such dimensions, depths, or elevations are approximations unless specifically stated otherwise in the report. You accept the inherent risk that samples or observations may not be representative of things not sampled or seen and further that site conditions may vary over distance or change overtime. 2.4 Our duties do not include supervising or directing your representatives or contractors or commenting on, overseeing, or providing the means and methods of their services unless expressly set forth in this Agreement. We will not be responsible for the failure of your contractors, and the providing of Services will not relieve others of their responsibilities to you or to others. 2.5 We will provide a health and safety program for our employees, but we will not be responsible for contractor, owner, project, or site health or safety. 2.6 You will provide, at no cost to us, appropriate site safety measures as to work areas to be observed or inspected by us. Our employees are authorized by you to refuse to work under conditions that may be unsafe. 2.7 Unless a fixed fee is indicated, our price is an estimate of our project costs and expenses based on information available to us and our experience and knowledge. Such estimates are an exercise of our professional judgment and are not guaranteed or warranted. Actual costs may vary. You should allow a contingency in addition to estimated costs. Section 3: Your Responsibilities 3.1 You will provide us with prior environmental, geotechnical and other reports, specifications, plans, and information to which you have access about the site. You agree to provide us with all plans, changes in plans, and new information as to site conditions until we have completed Services. 3.2 You will provide access to the site. In the performance of Services some site damage is normal even when due care is exercised. We will use reasonable care to minimize damage to the site. We have not included the cost of restoration of damage in the estimated charges. 3.3 You agree to provide us, in a timely manner, with information that you have regarding buried objects at the site. We will not be responsible for locating buried objects at the site. You agree to hold us harmless, defend, and indemnify us from claims, damages, losses, penalties and expenses (including attorney fees) involving buried objects that were not properly marked or identified or of which you had knowledge but did not timely call to our attention or correctly show on the plans you or others furnished to us. 3.4 You will notify us of any knowledge or suspicion of the presence of hazardous or dangerous materials present on any work site or in a sample provided to us. You agree to provide us with information in your possession or control relating to such materials or samples. If we observe or suspect the presence of contaminants not anticipated in this Agreement, we may terminate Services without liability to you or to others, and you will compensate us for fees earned and expenses incurred up to the time of termination. BRAUN INTERTEC 3.5 Neither this Agreement nor the providing of Services will operate to make us an owner, operator, generator, transporter, treater, starer, or a disposal facility within the meaning of the Resource Conservation Recovery Act, as amended, or within the meaning of any other law governing the handling, treatment, storage, or disposal of hazardous substances. You agree to hold us harmless, defend, and indemnify us from any damages, claims, damages, penalties or losses resulting from the storage, removal, hauling or disposal of such substances. 3.6 Monitoring wells are your property, and you are responsible for their permitting, maintenance, and abandonment unless expressly set forth otherwise in this Agreement. 3.7 You agree to make all disclosures required by law. In the event you do not own the project site, you acknowledge that it is your duty to inform the owner of the discovery or release of contaminants at the site. You agree to hold us harmless, defend, and indemnify us from claims, damages, penalties, or losses and expenses, including attorney fees, related to failures to make disclosures, disclosures made by us that are required by law, and from claims related to the informing orfailure to inform the site owner of the discovery of contaminants. Section 4: Reports and Records 4.1 Unless you request otherwise, we will provide our report in an electronic format. 4.2 Our reports, notes, calculations, and other documents and our computer software and data are instruments of our service to you, and they remain our property. We hereby grant you a license to use the reports and related information we provide only for the related project and for the purposes disclosed to us. You may not transfer our reports to others or use them for a purpose for which they were not prepared without our written approval. You agree to indemnify; defend, and hold us harmless from claims, damages, losses, and expenses, including attorneyfees, arising out of such a transfer or use. 4.3 If you do not pay for Services in full as agreed, we may retain work not yet delivered to you and you agree to return to us all of our work that is in your possession or under your control. 4.4 Samples and field data remaining after tests are conducted and field and laboratory equipment that cannot be adequately cleansed of contaminants are and continue to be your property. They may be discarded or returned to you, at our discretion, unless within 15 days of the report date you give us written direction to store or transfer the materials at your expense. 4.5 Electronic data, reports, photographs, samples, and other materials provided by you or others may be discarded or returned to you, at our discretion, unless within 15 days of the report date you give us written direction to store or transfer the materials at your expense. GC Page 1 of 2 Section 5: Compensation 5.1 You will pay for Services as stated in this Agreement. If such payment references our Schedule of Charges, the invoicing will be based upon the most current schedule. An estimated amount is not a firm figure. You agree to pay all sales taxes and other taxes based on your payment of our compensation. Our performance is subject to credit approval and payment of any specified retainer. 5.2 You will notify us of billing disputes within 15 days. You will pay undisputed portions of invoices upon receipt. You agree to pay interest on unpaid balances beginning 30 days after invoice dates at the rate of 1.5% per month, or at the maximum rate allowed by law. 5.3 If you direct us to invoice a third party, we may do so, but you agree to be responsible for our compensation unless the third party is creditworthy (in our sole opinion) and provides written acceptance of all terms of this Agreement. 5.4 Your obligation to pay for Services under this Agreement is not contingent on your ability to obtain financing, governmental or regulatory agency approval, permits, final adjudication of any lawsuit, your successful completion of any project, receipt of payment from a third party, or any other event. No retainage will be withheld. 5.5 If you do not pay us in accordance with this Agreement, you agree to reimburse all costs and expenses for collection of the moneys invoiced, including but not limited to attorney fees and staff time. 5.6 You agree to compensate us in accordance with our Schedule of Charges if we are asked or required to respond to legal process arising out of a proceeding related to the project and as to which we are not a party. 5.7 If we are delayed by factors beyond our control, or if project conditions or the scope or amount of work changes, or if changed labor conditions result in increased costs, decreased efficiency, or delays, or if the standards or methods change, we will give you timely notice, the schedule will be extended for each day of delay, and we will be compensated for costs and expenses incurred in accordance with our Schedule of Charges. 5.8 If you fail to pay us in accordance with this Agreement, we may consider the default a total breach of this Agreement and, at our option, terminate our duties without liability to you or to others, and you will compensate us for fees earned and expenses incurred up to the time of termination. 5.9 Inconsideration of our providing insurance to cover claims made by you, you hereby waive any right to offset fees otherwise due us. Section 6: Disputes, Damage, and Risk Allocation 6.1 Each of us will exercise good faith efforts to resolve disputes without litigation. Such efforts will include, but not be limited to, a meeting(s) attended by each party's representative(s) empowered to resolve the dispute. Before either of us commences an action against the other, disputes (except collections) will be submitted to mediation. 6.2 Notwithstanding anything to the contrary in this Agreement neither party hereto shall be responsible or held liable to the other for punitive, indirect, incidental, or consequential damages, or liability for loss of use, loss of business opportunity, loss of profit or revenue, loss of product or output or business interruption. 6.3 You and we agree that any action in relation to an alleged breach of our standard of care or this Agreement shall be commenced within one year of the date of the breach or of the date of substantial completion of Services, whichever is earlier, without regard to the date the breach is discovered. Any action not brought within that one year time period shall be barred, without regard to any other limitations period set forth by law or statute. We will not be liable unless you have notified us within 30 days of the date of such breach and unless you have given us an opportunity to investigate and to recommend ways of mitigating damages. You agree not to make a claim against us unless you have provided us at least 30 days prior to the institution of any legal proceeding against us with a written certificate executed by an appropriately licensed professional specifying and certifying each and every act or omission that you contend constitutes a violation of the standard of care governing our professional services. Should you fail to meet the conditions above, you agree to fully release us from any liability for such allegation. 6.4 For you to obtain the benefit of a fee which includes a reasonable allowance for risks, you agree that our aggregate liability for all claims will not exceed the fee paid for Services or $50,000, whichever is greater. If you are unwilling to accept this allocation of risk, we will increase our aggregate liability to $100,000 provided that within 10 days of the date of this Agreement, you provide payment in an amount that will increase our fees by 30%, but not less than $500, to compensate us for the greater risk undertaken. This increased fee is not the purchase of insurance. 6.5 You agree to indemnify us from all liability to others in excess of the risk allocation stated herein and to insure this obligation. In addition, all indemnities and limitations of liability set forth in this Agreement apply however the same may arise, whether in contract, tort, statute, equity or other theory of law, including, but not limited to, the breach of any legal duty or the fault negligence, orstrict liability of either party. 6.6 This Agreement shall be governed, construed, and enforced in accordance with the laws of the state in which our servicing office is located, without regard to its conflict of laws rules. The laws of the state of our servicing office will govern all disputes, and all claims shall be heard in the state or federal courts for that state. Each of us waives trial by jury. 6.7 No officer or employee acting within the scope of employment shall have individual liability for his or her acts or omissions, and you agree not to make a claim against individual officers or employees. Section 7: General Indemnification 7.1 We will indemnify and hold you harmless from and against demands, damages, and expenses of others to the comparative extent they are caused by our negligent acts or omissions or those negligent acts or omissions of persons for whom we are legally responsible. You will indemnify and hold us harmless from and against demands, damages, and expenses of others to the comparative extent they are caused by your negligent acts or omissions or those negligent acts or omissions of persons for whom you are legally responsible. 7.2 To the extent it maybe necessary to Indemnify either of us under Section 7.1, you and we expressly waive, in favor of the other only, any immunity or exemption from liability that exists under any worker compensation law. 7.3 You agree to indemnify us against losses and costs arising out of claims of patent or copyright infringement as to any process or system that is specified or selected by you or by others on your behalf. Section 8: Miscellaneous Provisions 8.1 We will provide a certificate of insurance to you upon request. Any claim as an Additional Insured shall be limited to losses caused by our negligence. 8.2 You and we, for ourselves and our insurers, waive all claims and rights of subrogation for losses arising out of causes of loss covered by our respective insurance policies. 8.3 Neither of us will assignor transfer any interest, any claim, any cause of action, or any right against the other. Neither of us will assign or otherwise transfer or encumber any proceeds or expected proceeds or compensation from the project or project claims to any third person, whether directly or as collateral or otherwise. 8.4 This Agreement maybe terminated early only in writing. You will compensate us for fees earned for performance completed and expenses incurred up to the time of termination. 8.5 If any provision of this Agreement is held invalid or unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions ofthis Agreement shall remain in full force and effect. 8.6 No waiver of any right or privilege of either party will occur upon such party's failure to insist on performance of any term, condition, or instruction, or failure to exercise any right or privilege or its waiver of any breach. GC Revised 1/1/2018 Page 2 of 2