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Proposal for Designer Services During Construction-Adare Place.pdf Copyright ©2024 GZA GeoEnvironmental, Inc. An Equal Opportunity Employer M/F/V/H March 11, 2024 15.0166700.00 Carolyn Misch, Director of Planning & Sustainability City of Northampton 210 Main Street Northampton, Massachusetts 01060 Re: Proposal for Construction Phase Services for the Adare Place Stream Restoration Project Northampton, Massachusetts Dear Carolyn: GZA GeoEnvironmental, Inc. (“GZA”) is pleased to present this proposal to the City of North- ampton (“City”, “Client”) for construction phase services related to the Adare Place Stream Restoration Project in Northampton, Massachusetts (the Project). BACKGROUND AND OBJECTIVE One of the largest stormwater outfalls which discharge into Barrett Street Marsh is located on the north side of the embankment supporting the Northampton Bike Path near the end of Adare Place (Adare Place Outlet). The Adare Place Outlet is a 36-inch diameter corrugated metal pipe (CMP) outfall which discharges stormwater from the City’s municipal stormwater system with a developed catchment area of approximately 86 acres. Erosion has undermined the end of the outfall, such that a portion of the outfall pipe has collapsed, and high velocity flows have severely scoured the channel downstream of the outfall. We understand the City prepared a design for repair of the outfall structure, which includes installation of energy dis- sipation measures to reduce scour in the channel. Under separate contract, GZA prepared draft design drawings for the restoration of the channel downstream of the outfall. The City will be seeking funding for eventual construction of the Project, and has requested this proposal from GZA to assist with finalizing construction level bid documents, assist with contractor bidding and provide designer services during construction. SCOPE OF SERVICES We propose the following scope of services to assist the City during bidding and construction: Task 1. Designer Services During Construction: GZA will provide the City with Designer Ser- vices During Construction (DSDC). In general, these services are anticipated to include a GZA representative attending Project meetings, reviewing and responding to contractor Requests for information (RFIs), reviewing contractor submittals for conformance to the contract docu- ments, issuance of supplemental instructions, review of contractor compliance with Federal and State MBE/WBE requirements, and part time construction observation services. Task 1.1: Finalize Bid Documents and Bidding Assistance: GZA will assist the City during bidding of the project, including preparing and providing up to three (3) sets of hard copies (if needed) of final 100-percent design bid documents (plans and specifications), attending and adminis- tering a pre-bid meeting held at the Site or City’s offices, reviewing and preparing written responses to Bidder questions, preparing one round of bid amendments, as required, evaluat- ing the bids received, and making written recommendation for project award. March 11, 2024 Proposal – Adare Place Stream Restoration Project – Construction Phase Services 15.0166700.00 Page | 2 Proactive by Design An Equal Opportunity Employer M/F/V/H Task 1.1 Deliverables: 1. Three (3) sets of hard copies of final 100-percent design bid documents (plans and specifications). 2. Attendance at one (1) pre-bid meeting. 3. Responses to bidder questions and one round of bid amendments. 4. Written recommendation for project award. Task 1.2: Kickoff and Close-Out Meeting Attendance: GZA’s Project Manager will attend two (2) Project meetings at the site (or elsewhere locally, or virtually), as required, on behalf of the City. The Kick-off meeting will be used to discuss the contractor schedule, submittals, RFIs, and Construction Observation. The Project Close out meeting will serve as the Punch List walk through to view the site with the City and the Contractor to discuss any unresolved issues and work remaining to be completed after substantial completion. GZA will take photographs of the site during each site walk held in conjunc- tion with each meeting. GZA will prepare and distribute a meeting summary for each meeting. The meetings will be attended by GZA’s Project Manager and Field Representative, if different and as appropriate. Task 1.2 Deliverables: 1. Attendance at one (1) Kick-off meeting and written meeting summary. 2. Attendance at one (1) Project Close out meeting/ Punch List walk through meeting and written meeting summary. Task 1.3: Review of Contractor Submittals and Requests for Information: GZA will provide technical review of Contractor’s submittals, including shop drawings, test results of construction materials, samples and other submissions related to the proposed construction as appropriate for compliance with requirements in the Project Drawings and Specifications pre- pared by GZA. Our scope assumes review of up to 10 material submittals, including one round of re-submittals, and preparation of responses to up to 5 RFIs. We will process and respond to submittal correspondence from the Contractor. Correspondence received from the contractor(s) will be reviewed relative to the drawings, specifications and the Project permits. GZA will provide a written response to submittals received from the Contractor with recommendation to the City to accept, accept with modifications, or reject the submittal. GZA correspondence will be sent to the City, with copy to the Contractor. GZA’s Project Manager will provide liaison with the City and the Contractor on a part-time basis to review submittals, and to respond to requests for information or other questions from Project partners. In the event of questions regarding po- tential changed conditions, or other issues, which might have contractual implications, such questions will be discussed with the City to determine if action is necessary and within the Project scope, and the associated cost implications. GZA will develop technical recommendations to address unanticipated conditions, if encountered. GZA will issue written re- sponses to the City with our opinion as to the appropriate resolution of questions or unexpected conditions. Task 1.3 Deliverables: 1. Written responses to Contractor’s submittals, RFIs or other requests for clarification. Task 1.4: Completion Review: As construction work nears substantial completion, GZA will review the Contractor’s “As- built” documentation in cooperation with the City. GZA will prepare the “punch list” containing items of work which must be completed or corrected prior to acceptance by the City and authorization of final payment to the Contractor. GZA will also provide correspondence to the appropriate regulatory agencies relative to certificates of completion as may be re- quired by the various permits obtained for the Project. March 11, 2024 Proposal – Adare Place Stream Restoration Project – Construction Phase Services 15.0166700.00 Page | 3 Proactive by Design An Equal Opportunity Employer M/F/V/H Task 1.4 Deliverables: 1. Punch list. 2. Permit certificates of completion. Task 1.5: Part Time Construction Observation Services: GZA will provide a field representative to periodically observe the construction of the Project as outlined in the Project plans and specifications. We propose that a GZA representative visit the Site an average of once per week to observe and document general conditions at the Site and to observe Contractor activities to make note of conformance with Project plans, specifications, and design intent. In the event that changed conditions or a non-conformance is observed, the GZA representative will inform the Contractor and the City, and docu- ment the observed conditions. The GZA representative will maintain close communications with the GZA Project Manager and the City, including other entities providing oversight on behalf of the City, as necessary. We assume that up to fifteen (15) weekly site visits, with up to 4 hours on site per visit, will be performed under this task. GZA will assist the City in reviewing contractor’s submitted applications for payment, as appropriate. Task 1.5 Deliverables: 1. Weekly site visits and field report documenting conditions observed per each. Neither the professional activities of GZA, nor the presence of GZA’s employees and/or subcontractors will be construed by any party to imply that GZA has any responsibility for any Contractor’s means and methods of work performance, procedures, superintendence, sequencing of operations, or safety in, on or about the Project site. The City agrees to make evident in their agreement with contractors that neither the presence of GZA, nor any observation or testing by GZA, will excuse the contractor for defects discovered in their work. With respect to site safety, GZA will be responsible solely for the on-site activities of its own employees and subcon- tractors, and this responsibility will not be construed to relieve the City and the City’s own contractors from their obliga- tions to maintain a safe Project site. The City agrees that the City’s own contractor is solely responsible for Project site safety, and warrants that: (1) this intent will be made evident in the City’s agreement with the contractor; and (2) the City will require GZA to be named as an Additional Insured under the contractor’s general liability insurance policy. SCHEDULE GZA will schedule the described services following receipt of a Notice to Proceed from the City. We understand that con- struction of the project is contingent upon funding of the Project by the City. We will maintain regular communication with you so that issues and concerns are addressed on a timely basis. BUDGET AND BASIS OF BILLINGS GZA’s estimated fee for the above described scope of services is $67,000. The cost for GZA’s professional services will be charged on time and materials basis. Our estimated fee is broken down by task approximately as follows: Task / Description Estimated Fee Task 1.1: Finalize Bid Documents and Bidding Assistance $ 19,000.00 Task 1.2: Kickoff and Close-Out Meeting Attendance $ 5,000.00 Task 1.3: Review of Contractor Submittals and Requests for Information $ 17,000.00 Task 1.4: Completion Review $ 4,000.00 Task 1.5: Part Time Construction Observation Services $ 22,000.00 Total Estimated Fee: $ 67,000.00 March 11, 2024 Proposal – Adare Place Stream Restoration Project – Construction Phase Services 15.0166700.00 Page | 4 Proactive by Design An Equal Opportunity Employer M/F/V/H This fee estimate is based on the anticipated scope of services outlined above, which represents our present judgment as to the level of effort required. We will notify you of any unanticipated conditions requiring an increase in the fee as soon as they become evident. CONDITIONS OF ENGAGEMENT AND ACCEPTANCE The conditions of our engagement are detailed on the attached Terms and Conditions for Professional Services (12/23 Edition/05-9010). This Proposal for Services and Terms and Conditions shall constitute the entire agreement between the parties. This proposal is valid for six months from the date of issuance. Should notice to proceed occur later than six months after the date of issuance, GZA will provide an updated proposal for execution, as appropriate . GZA is prepared to begin work upon receipt of formal Notice to Proceed from the City of Northampton. CLOSING We appreciate the opportunity to submit this proposal. If you have any questions or require additional information, please contact Rosalie Starvish at (413) 726-2119. Very truly yours, GZA GEOENVIRONMENTAL, INC. Rosalie T.F. Starvish, P.E., CFM, CPMSM Stephen L. Lecco, A.I.C.P., C.E.P. Senior Project Manager Consultant/Reviewer Nathaniel L. Russell, P.E. Principal-in-Charge Attachments: 1. Terms and Conditions for Professional Services (12/23 Edition/05-9010) TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES © 2023 by GZA GeoEnvironmental, Inc. (12/23-Edition/05-9010) December 15, 2023 These Terms and Conditions, together with GZA's Proposal, make up the Agreement between GZA and You, Client, named above. BEFORE SIGNING THE PROPOSAL, BE SURE YOU READ AND UNDERSTAND THE PARAGRAPHS ENTITLED "INDEMNIFICATION” AND "LIMITATION OF REMEDIES" WHICH DEAL WITH THE ALLOCATION OF RISK BETWEEN YOU AND GZA. 1)Services. GZA will perform the services set forth in its Proposal and any amendments or change orders authorized by you (the “Services”). Any request or direction from you that would require extra work or additional time for performance or would result in an increase in GZA's costs will be the subject of a negotiated amendment or change order. 2)Standard of Care; Warranties. a)GZA will perform professional Services with the degree of skill and care ordinarily exercised by qualified professionals performing the same type of services at the same time under similar conditions in the same or similar locality. b)NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WARRANTY OF MARKETABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE OR INTENDED BY GZA’S PROPOSAL OR BY ANY OF GZA’S REPORTS. c)GZA assigns to you any manufacturers' warranties of equipment or materials purchased from others, to the extent they are assignable, and your sole recourse will be against the manufacturer. Full risk of loss of materials and equipment will pass to you upon delivery to the Site, and you will be responsible for insuring and otherwise protecting them against theft and damage. 3)Payment. a)Except as otherwise stated in the Proposal, you will compensate GZA for the Services at the rates set forth in the applicable Proposal, amendment or change order; reimburse its expenses, which will include a communication fee calculated as a percentage of labor invoiced; and pay any sales or similar taxes thereon. b)Any retainer specified in GZA’s Proposal shall be due prior to the start of Services and will be applied to the final invoice for Services. c)GZA will submit invoices periodically, and payment will be due within 20 days from invoice date. Overdue payments will bear interest at 1½ percent per month or, if lower, the maximum lawful rate. GZA may terminate the Services upon 10 days' written notice anytime your payment is overdue on this or any other project and you will pay for all Services through termination, plus termination costs. You will reimburse GZA's costs of collecting overdue invoices, including reasonable attorneys' fees (including costs for time expended by in-house counsel, which will be charged to you at the prevailing market rate for attorneys of similar experience practicing in the jurisdiction). 4)Your Responsibilities. a)Except as otherwise agreed in writing, you will secure the access agreements, approvals, permits, licenses and consents necessary for performance of the Services. If you are the owner or operator of the Site, you will provide GZA with all documents, plans, information concerning underground structures (including but not limited to utilities, conduits, pipes, and tanks), information related to hazardous materials or other environmental or geotechnical conditions at the Site (including, if applicable, asbestos containing materials [“ACM”]) and other information that may be pertinent to the Services or, if you are not the owner or operator of the Site, you agree to make reasonable efforts to obtain these same documents and provide them to GZA. Unless otherwise indicated in writing, GZA will be entitled to rely on documents and information you provide. b)If you use the services of a contractor or construction manager at the Site, you agree to use best and reasonable efforts to include in your agreement(s) with the construction contractor provisions obligating the latter: i)to defend, indemnify and hold harmless, to the fullest extent permitted by law, you and GZA and its officers, directors, members, partners, agents, employees, and subconsultants (the “GZA Indemnitees”), for or on account of any claims, liabilities, costs and expenses, including attorneys' fees, arising out of or relating to the design or implementation of construction means, methods, procedures, techniques, and sequences of construction, including safety precautions or programs, of the contractor, or any of its subcontractors or any engineer engaged by it; ii)to name you and GZA as additional insureds under general liability and builder's risk insurance coverages maintained by the contractor, or any of its subcontractors, and to ensure that such policies are primary and noncontributory with regard to the above indemnity obligations; and iii)to require that all of its subcontractors agree and be bound to the obligations set forth in (i) and (ii) above. c)In the event that you are unable to secure such provisions in the agreement(s) with the construction contractor, you shall promptly (but in any event prior to the commencement of the Services) notify GZA and GZA shall have the opportunity to negotiate with you reasonable substitute risk allocation and insurance indemnities and protections. 5)Right of Entry; Site Restoration. You grant GZA and its subcontractor(s) permission to enter the Site to perform the Services. If you do not own the Site, you represent and warrant that the owner has granted permission for GZA to enter the Site and perform the Services; you will provide reasonable verification on request; and you will indemnify the GZA Indemnitees for any claims by the Site owner related to alleged trespass by GZA or its subcontractors. Although GZA will exercise reasonable care to limit damage to landscaping, paving, systems and structures at the Site, you acknowledge that some damage may occur even with the exercise of due care and you agree to compensate GZA for any restoration it is asked to perform, unless otherwise indicated in the Proposal. 6)Underground Facilities. GZA's only responsibility under this Agreement will be to provide proper notification to the applicable state utility "Call-Before- You-Dig" program. You further agree to assume responsibility for and to defend, indemnify and hold harmless GZA with respect to personal injury and property damages due to GZA's interference with subterranean structures including but not limited to utilities, conduits, pipes, and tanks: a)that are not correctly shown on any plans and information you or governmental authorities provide to GZA; or b)that are not correctly marked by the appropriate utility. Client (“You” or “you”): Proposal No: Site: Terms and Conditions Page | 2 of 4 (12/23-Edition/05-9010) December 15, 2023 7) Reliance. The services, information, and other data furnished by you shall be at your expense, and GZA may rely upon all information and data that you furnish, including the accuracy and completeness thereof. You acknowledge that the quality of the Services provided by GZA is directly related to the accuracy and completeness of the information and data that you furnish to GZA. GZA’s REPORTS ARE PREPARED FOR AND MADE AVAILABLE FOR YOUR SOLE USE. YOU ACKNOWLEDGE AND AGREE THAT USE OF OR RELIANCE UPON THE REPORT OR THE FINDINGS IN THE REPORT BY ANY OTHER PARTY, OR FOR ANY OTHER PROJECT OR PURPOSE, SHALL BE AT YOUR OR SUCH OTHER PARTY’S SOLE RISK AND WITHOUT ANY LIABILITY TO GZA. YOU SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE GZA INDEMNITEES FROM ALL CLAIMS, DAMAGES, LOSSES, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF OR RESULTING FROM ANY USE, REUSE, OR MODIFICATION OF THE DOCUMENTS WITHOUT WRITTEN VERIFICATION, COMPLETION, OR ADAPTATION BY GZA AND SUCH LIMITED LICENSE TO YOU SHALL NOT CREATE ANY RIGHTS IN THIRD PARTIES. 8) Lab Tests and Samples. GZA is entitled to rely on the results of laboratory tests using generally accepted methodologies. GZA may dispose of samples in accordance with applicable laws 30 days after submitting test results to you unless you request in writing for them to be returned to you or to be held longer, in which case you will compensate GZA for storage and/or shipping beyond 30 days. 9) GZA Professionals. GZA employees or consultants may act as licensed, certified or registered professionals (including but not limited to Professional Engineers, Licensed Site or Environmental Professionals, Certified Hazardous Materials Managers, or Certified Industrial Hygienists, collectively referred to in this section as “GZA Professionals”), whose duties may include the rendering of independent professional opinions. You acknowledge that a federal, state or local agency or other third party may audit the Services of GZA or other contractor/consultant(s), which audit may require additional Services, even though GZA and such GZA Professionals have each performed such Services in accordance with the standard of care set forth herein. You agree to compensate GZA for all Services performed in response to such an audit, or to meet additional requirements resulting from such an audit, at the rates set forth in the applicable Proposal, amendment or change order. 10) Hazardous Materials; GZA “Not a Generator”. Before any hazardous or contaminated materials, including, if applicable, ACMs (the “Wastes”) are removed from the Site, you will sign manifests naming you as the generator of the Wastes (or, if you are not the generator, you will arrange for the generator to sign). You will select the treatment or disposal facility to which any Wastes are taken. GZA will not be the generator or owner of, nor will it possess, take title to, or assume legal liability for any Wastes at or removed from the Site. GZA will not have responsibility for or control of the Site or of operations or activities at the Site other than its own. GZA will not undertake, arrange for or control the handling, treatment, storage, removal, shipment, transportation or disposal of any Wastes at or removed from the Site, other than any laboratory samples it collects or tests. You agree to defend, indemnify and hold the GZA Indemnitees harmless for any costs or liability incurred by GZA in defense of or in payment for any legal actions in which it is alleged that GZA is the owner, generator, treater, storer or disposer of any Wastes. 11) Limits on GZA's Responsibility. GZA will not be responsible for the acts or omissions of contractors or others at the Site, except for its own subcontractors and employees. GZA will not supervise, direct or assume control over or the authority to stop any contractor's work, nor shall GZA's professional activities nor the presence of GZA or its employees and subcontractors be construed to imply that GZA has authority over or responsibility for the means, methods, techniques, sequences or procedures of construction, for work site health or safety precautions or programs, or for any failure of contractors to comply with contracts, plans, specifications or laws. Any opinions by GZA of probable costs of labor, materials, equipment or services to be furnished by others are strictly estimates and are not a guarantee that actual costs will be consistent with the estimates. 12) Changed Conditions. a) You recognize the uncertainties related to the Services (including, without limitation, environmental and geotechnical Services), which often require a phased or exploratory approach, with the need for additional Services becoming apparent during the Services. You also recognize that actual conditions encountered may vary significantly from those anticipated, that laws and regulations are subject to change, and that the requirements of regulatory authorities are often unpredictable. b) If changed or unanticipated conditions or delays make additional Services necessary or result in additional costs or time for performance, GZA will notify you and the parties will negotiate appropriate changes to the scope of Services, compensation and schedule. c) If no agreement can be reached, GZA will be entitled to terminate the Services and to be equitably compensated for the Services already performed. GZA will not be responsible for delays or failures to perform due to weather, labor disputes, intervention by or inability to get approvals from public authorities, acts or omissions on your part, or any other causes beyond GZA's reasonable control, and you will compensate GZA for any resulting increase in its costs. 13) Documents and Information. All documents, data, calculations and work papers prepared or furnished by GZA are instruments of service and will remain GZA's property. Designs, reports, data and other work product delivered to you are for your use only, for the limited purposes disclosed to GZA. Any delayed use, use at another site, use on another project, or use by a third party will be at the user's sole risk, and without any liability to GZA. Any technology, methodology or technical information learned or developed by GZA will remain its property. Provided GZA is not in default under this Agreement, GZA's designs will not be used to complete this project by others, except by written agreement relating to use, liability and compensation. 14) Electronic Media. In accepting and utilizing any drawings, reports and data on any form of electronic media generated by GZA, you covenant and agree that all such electronic files are instruments of service of GZA, who shall be deemed the author and shall retain all common law, statutory law and other rights, including copyrights. In the event of a conflict between the signed documents prepared by GZA and electronic files, the signed documents shall govern. You agree not to reuse these electronic files, in whole or in part, for any purpose or project other than the project that is the subject of this Agreement. Any transfer of these electronic files to others or reuse or modifications to such files by you without the prior written consent of GZA will be at the user’s sole risk and without any liability to GZA. 15) Confidentiality; Subpoenas. Information about this Agreement and GZA's Services and information you provide to GZA regarding your business and the Site, other than information available to the public and information acquired from third parties, will be maintained in confidence and will not be disclosed to others without your consent, except as GZA reasonably believes is necessary: (a) to perform the Services; (b) to comply with professional standards to protect public health, safety and the environment; and (c) to comply with laws, regulations, court orders and professional obligations. GZA will make reasonable efforts to give you prior notice of any disclosure under (b) or (c) above. Information available to the public and information acquired from third parties will not be considered confidential. You will reimburse GZA for responding to any subpoena or governmental inquiry or audit related to the Services, at the rates set forth in the applicable Proposal, amendment or change order. Terms and Conditions Page | 3 of 4 (12/23-Edition/05-9010) December 15, 2023 16) Insurance. During performance of the Services, GZA will maintain workers’ compensation, commercial general liability, automobile liability, and professional liability/contractor's pollution liability insurance. GZA will furnish you certificates of such insurance on request. 17) Indemnification. You agree to hold harmless, indemnify, and defend the GZA Indemnitees against all claims, suits, fines and penalties, including mandated cleanup costs and attorneys' fees and other costs of settlement and defense, which claims, suits, fines, penalties or costs arise out of or are related to this Agreement or the Services, except to the extent they are caused by GZA’s negligence or willful misconduct. 18) Limitation of Remedies. a) To the fullest extent permitted by law and notwithstanding anything else in this Agreement to the contrary, the aggregate liability of GZA and its affiliates and subcontractors and their employees, principals, officers, directors and agents (collectively referred to in this paragraph as "GZA") for all claims arising out of this Agreement or the Services is limited to $50,000 or, if greater, 10% of the compensation received by GZA under this Agreement. b) You may elect to increase the limit of liability by paying an additional fee, such fee to be negotiated prior to the execution of this Agreement. c) Any claim against GZA related in any way to the services provided pursuant to this Proposal, or the terms herein, is waived unless suit is commenced in a proper jurisdiction within one year of substantial completion of GZA’s services. This waiver may not be construed to extend any applicable statute of limitations. d) GZA will not be liable for lost profits, loss of use of property, delays, contractual penalties or other special, indirect, incidental, consequential, punitive, exemplary, liquidated, or multiple damages. e) GZA will not be liable to you or the Site owner for injuries or deaths suffered by GZA's or its subcontractors' employees. f) You will look solely to GZA for your remedy for any claim arising out of or relating to this Agreement, including any claim arising out of or relating to alleged negligence or errors or omissions of any GZA principal, officer, employee or agent.To the extent damages are covered by property insurance or any other insurance, both you and GZA waive all rights against each other and against the contractors, consultants, agents, and employees of the other, for damages, except such rights as they may have to the proceeds of such insurance as set forth in this Agreement. You or GZA, as appropriate, shall require of the contractors, consultants, agents, and employees of any of them, similar waivers in favor of the other parties enumerated herein. 19) Disputes. a) All disputes between you and GZA shall be subject to non-binding mediation. b) Either party may demand mediation by serving a written notice stating the essential nature of the dispute, the amount of time or money claimed, and requiring that the matter be mediated within forty-five (45) days of service of notice. c) The mediation shall be administered by the American Arbitration Association in accordance with its most recent Construction Mediation Rules, or by such other person or organization as the parties may agree upon. d) No action or suit may be commenced unless mediation has occurred but did not resolve the dispute, or unless a statute of limitations period or the one year waiver period described in 18(c) above would expire if suit were not filed prior to such forty-five (45) days after service of notice. However, where non-payment of an invoice has occurred and GZA sends you a final demand letter for payment, your failure to respond within ten (10) days of receipt (or, for certified mail, the date of the first attempt to deliver the letter to your address of record if you ultimately do not accept receipt of the letter) of such letter will be deemed to be a waiver of your right to enforce this mediation clause and GZA may immediately file suit to enforce the terms of this Agreement. e) You agree to pay reasonable attorneys' fees and all other costs and expenses (including, but not limited to reasonable investigative expenses and expert and consultant expenses) which may be incurred by GZA in the enforcement of this Agreement in the event that (a) it is decided or adjudicated via the binding dispute resolution procedures contained in this Agreement that you have breached this Agreement; or (b) where you allege that GZA has breached this Agreement or otherwise acted negligently and it is decided or adjudicated that GZA did not in fact breach this Agreement or act negligently. If for any reason it is adjudicated that the foregoing provision is in violation of applicable law, is subject to a state statute automatically converting this clause to be reciprocal between the parties, is contrary to public policy or is unconscionable or a contract of adhesion, then the foregoing clause will be null and void and of no effect. Under no circumstances shall the foregoing clause be replaced with a reciprocal clause. 20) Miscellaneous. a) This Agreement and all claims relating thereto shall be governed by the substantive and procedural laws of the Commonwealth of Massachusetts, as they presently exist or may hereafter be amended, without regard to principles of conflict of laws. b) The above terms and conditions regarding Limitation of Remedies and Indemnification shall survive the completion of the Services under this Agreement and the termination of the contract for any cause. c) Any amendment to these Terms and Conditions must be in writing and signed by both parties. No modification of these Terms and Conditions will be binding against GZA unless specifically approved in writing by a principal of GZA. d) Having received these Terms and Conditions, your oral authorization to commence Services, your acceptance of performance of the Services, your actions, or your use of the Report or Work Product constitutes your acceptance of them. e) This Agreement supersedes any contract terms, purchase orders or other documents issued by you, even if signed by an authorized representative of GZA. f) Neither party may assign or transfer this Agreement or any rights or duties hereunder without the written consent of the other party. g) Your failure or the failure of your successors or assigns to receive payment, reimbursement, insurance proceeds or grant funds from any other party for any reason whatsoever shall not absolve you, your successors or assigns of any obligation to pay any sum to GZA under this agreement. h) These Terms and Conditions shall govern over any inconsistent terms in GZA’s Proposal. Terms and Conditions Page | 4 of 4 (12/23-Edition/05-9010) December 15, 2023 i) Any provision of this Agreement later held to be unenforceable for any reason shall be deemed void, and all remaining provisions shall continue in full force and effect on the parties, who agree that the Agreement shall be reformed to replace such voided provision with a valid and enforceable provision that comes as close as possible to expressing the intention of the voided provision. j) The covenants and agreements contained in this Agreement shall apply to, inure to the benefit of and be binding upon the parties hereto and upon their respective successors and assigns. k) Any reports generated by GZA will be subject to GZA’s standard report limitations for that particular type of report. l) To the extent applicable to GZA’s Services, you acknowledge and agree that GZA cannot anticipate the effects of climate change/extreme weather on any report, design or other document produced by GZA, unless such analysis is specifically within the scope of GZA’s Services. m) You agree that during the performance of GZA’s Services and for a period of twelve (12) months completion of those Services, you will not encourage, induce, or otherwise solicit, or actively assist any other person or organization to encourage, induce or otherwise solicit, directly or indirectly, any employee of the GZA or any of its affiliates to terminate their employment with GZA or any of its affiliates, or otherwise interfere with the advantageous business relationship of GZA or any of its affiliates with their employees. You agree that if you violate this non-solicitation provision, you will pay GZA liquidated damages in an amount equal to the total earnings of the solicited employee during the last twelve (12) months of their employment with GZA. 21) Asbestos Abatement Services (If Applicable). If the Services include asbestos abatement services, then the following terms and conditions will apply and will supersede any conflicting terms contained elsewhere in this Agreement. a) You acknowledge that conditions can vary from those encountered at the times and locations of explorations and data collection, and that the limitation on available data may result in some level of uncertainty with respect to the interpretation of those conditions, despite due professional care. GZA therefore cannot guarantee specific results such as the identification or removal of all asbestos or other contamination. 22) Microbial Services (If Applicable). If the Services include Microbial services, then the following terms and conditions will apply and will supersede any conflicting terms contained elsewhere in this Agreement. For purposes of this Agreement, Microbial is defined as any and all fungal and/or bacterial growth including but not limited to mold, mildew, yeast, fungus, fungi, bacteria, spores, odors, particulates, vapors, gas, or other emissions produced by or arising out of or toxins emanating therefrom. a) You recognize that meeting the standard of care does not establish an assurance that corrective procedures will be permanent. Because Microbial infestations are created by near-omnipresent living microscopic spores which grow very quickly and are influenced by nanoclimatological conditions that are very difficult to detect and sources of water intrusion, elevated moisture or relative humidity over which GZA has neither control or responsibility, GZA cannot and does not claim that its Services will eliminate the risk of a Microbial infestation recurring. b) You acknowledge that the Services entail risk of personal injury and property damage (including cross-contamination) that cannot be avoided, even with the exercise of due care. You also acknowledge that environmental conditions can vary from those encountered at the times and locations of explorations and data collection, and that the limitation on available data may result in some level of uncertainty with respect to the interpretation of these conditions, despite due care. GZA therefore cannot guarantee specific results such as the identification of all contamination or other environmental conditions or problems nor their resolution. c) You acknowledge that Microbial infestations may be hidden from view and concealed in locations that are difficult to discover. Accordingly, you agree that despite GZA’s efforts, some Microbial locations may remain undetected. In such situations, you agree that you will have no claim against GZA provided GZA followed the applicable standard of care and all applicable laws and regulations pertaining to the Work. d) You further agree that when GZA performs Services intended to minimize the risk of Microbial infestations, GZA shall not be liable for damages resulting from Microbial contamination including but not limited to fungal or bacterial infestations and water damage or dry or wet rot. You agree to waive any Microbial infestation claim(s) against GZA and you agree to indemnify, defend and hold the GZA Indemnitees harmless from any claim alleging that GZA’s Services caused or aggravated a Microbial infestation or did not prevent a Microbial infestation from recurring.