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HomeMy WebLinkAboutVIII-05 Accept Proposal and Authorize Work - 2025 Neighborhood Infrastructure Improvements Geotechnical Investigation City Council Memorandum To: Mayor Fasbender & City Council Members From: Ryan Stempski – Public Works Director/City Engineer Date: July 1, 2024 Item: Accept Proposal and Authorize Work – 2025 Neighborhood Infrastructure Improvements Geotechnical Investigation Council Action Requested: The Council is requested to authorize the Engineering Department to enter a contract with Braun Intertec for the purpose of investigating subsurface conditions for the proposed 2025 Neighborhood Infrastructure Improvements Project. Background Information: On May 6, 2024, the City Council authorized the Engineering Department to begin collecting field data as part of the feasibility analysis for the 2025 Neighborhood Infrastructure Improvements Project. Geotechnical investigation is a key component of this data collection process as it enables staff to make informed decisions on the existing conditions of these roadways and the corrections necessary to improve them. Three proposals were solicited from qualified vendors to provide geotechnical investigation services as well as an accompanying report of recommendations. A summary of the three proposals provided are as follows: • Braun Intertec – $22,014 • American Engineering Testing (AET) – $32,087 • WSB – $46,630 After detailed review of these proposals for completeness, Braun Intertec provided the best value to perform all services requested. Braun Intertec has completed several geotechnical investigations for City infrastructure projects in the past and is well qualified to complete this work. Financial Impact: The estimated cost of these services at $22,014 falls within the anticipated administrative costs for the 2025 Neighborhood Infrastructure Improvements Project. This project, if authorized for bidding/construction following preparation of the Feasibility Report, will ultimately be paid for utilizing bonded debt, enterprise funds, and private assessments. Attachments: • Proposed 2025 Neighborhood Infrastructure Improvements Project Map • Braun Intertec Proposal - Geotechnical Investigation of 2025 Neighborhood Infrastructure Improvements Project VIII-05 VIII-05 VIII-05 VIII-05 VIII-05 VIII-05 VIII-05 VIII-05 VIII-05 VIII-05 AA/EOE Braun Intertec Corporation 1826 Buerkle Road Saint Paul, MN 55110 Phone: 651.487.3245 Fax: 651.487.1812 Web: braunintertec.com May 29, 2024 Proposal QTB197191 Cody Mathisen, P.E. City of Hastings 1225 Progress Drive Hastings, MN 55033 Re: Proposal for a Pavement and Geotechnical Evaluation City of Hastings 2025 Infrastructure Improvement Projects Various City Streets Hastings, MN Dear Mr. Mathisen: Braun Intertec Corporation appreciates the opportunity to provide this proposal to complete a pavement and geotechnical evaluation for the City of Hastings 2025 Infrastructure Improvement Projects located in Hastings, Minnesota. Project Information Per the RFP provided by you and dated May 16, 2024, we understand the proposed project will include improvements to several city streets. The streets are planned for either full reconstruction that will include underground public utility repair of water main and sanitary sewer or full-depth reclamation (FDR). As part of our work, it is requested that Ground Penetrating Radar (GPR) testing, pavement coring and hand auger borings, and Falling Weight Deflectometer (FWD) testing be performed on streets planned for FDR, which total about 1 mile in length. Soil borings are requested for streets planned for full reconstruction and the repair of utilities. Additionally, soil borings are requested for a potential stormwater quality project. Purpose The purpose of GPR, pavement coring, hand auger borings, and FWD testing will be to provide existing inplace structural information for streets planned for FDR. The purpose of our geotechnical evaluation will be to characterize subsurface geologic conditions at selected boring locations, evaluate their impact on the project, and provide geotechnical recommendations for the design and construction of the streets. 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. VIII-05 City of Hastings Proposal QTB197191 May 29, 2024 Page 2 Ground Penetrating Radar (GPR) Testing As requested, we will perform GPR testing on City streets planned for FDR which includes Whispering Lane, Crestview Drive, Theo Court, 1st Place, Prairie Street, and State Street (from 2nd Street to 3rd Street). GPR data provides a continuous estimate of pavement layer thicknesses and will be performed in both travel direction. GPR measurements will be tied to GPS coordinates for mapping and reference purposes. An air-coupled GPR unit can be expected to penetrate approximately 2 feet under ideal conditions, and is capable of detecting differentiation between bituminous pavement layers and underlying aggregate base layers, if present. Data obtained from the GPR testing will be used in the analysis of FWD data and will also be used to assist with the planned FDR repair recommendations. Pavement Coring and Hand Auger Borings At locations selected by Braun Intertec using the GPR data, we will perform a total of 18 pavement cores and hand auger borings on streets planned for FDR. Pavement cores and hand auger borings will be used to confirm and calibrate the GPR data and to help characterize the in-place pavement layer thicknesses. The cores will be submitted to our lab for total thickness measurements and will be examined for any material deficiencies. The cores will be retained for any additional laboratory testing that may be useful. Falling Weight Deflectometer (FWD) Testing and Analysis On streets planned for FDR, we will perform non-destructive Falling Weight Deflectometer (FWD) testing with a Dynatest 8002E model FWD. The FWD is a non-destructive testing device specifically designed for evaluating pavements and operates by measuring pavement surface deflections from an applied wheel- simulating impulse load. Four impulse loads (two at 6,000 lbs and two at 9,000 lbs) will be applied at each test point using a testing rate of approximately one test every 200 feet. Testing will be performed in a both directions of travel. Deflection data will be utilized to estimate effective R-values, pavement structural capacity, effective GE, and required 9-ton and 10-ton overlay thicknesses. Furthermore, the FWD data will assist in the discussion of the planned repair, as well as assisting in identifying areas where possible soil corrections may be warranted. Site Access Based on the map and site photographs provided, it appears that the site is accessible to a truck drill rig. However, one of the borings may require an off-road drill rig. This can be better determined during our site review. Should an off-road be warranted, additional fees may be incurred. We assume there will be no cause for delays in accessing the boring locations. Depending on access requirements, ground conditions or potential utility conflicts, our field crew may alter the boring locations from those proposed to facilitate accessibility. VIII-05 City of Hastings Proposal QTB197191 May 29, 2024 Page 3 Staking As the requested locations, we will stake prospective subsurface exploration locations so that GPS coordinates and elevations can be obtained. Utility Clearance Prior to drilling, we will contact Gopher State One Call and arrange for notification of the appropriate utility vendors to mark and clear the boring 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. Penetration Test Borings As requested, we will drill a total of 24 standard penetration test borings for the project. Six borings will be performed to a depth of 12 feet each, 15 borings will be performed to a depth of 14 feet each, and three borings will be performed to a depth of 20 feet. Borings will be performed at the approximate locations noted in the RFP. For each of the borings, we will perform standard penetration tests at 2 1/2- foot vertical intervals to the depth of termination. If the borings encounter groundwater during or immediately after drilling of each boring, we will record the observed depth on the boring logs. 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. 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. MDH Sealing Record We are planning the deepest borings to be at least 15 feet and less than 25 feet. Therefore, the Minnesota Statutes require us to complete a Sealing Record after our completion of the borings. Our proposal includes the fees for the Minnesota Department of Health (MDH) Sealing Record. In the event we extend our borings to a depth of 25 feet or greater, the MDH requires us to complete and submit a Sealing Notification Form for the project. The submission of the Sealing Notification Form will require a signature from the property owner (or agent). If we extend our borings to a depth of 25 feet or greater, we will forward on to you a copy of the form for signature and increase our total fees by $100. Borehole Abandonment We will backfill our boring locations immediately after completing the drilling 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 60 linear feet with grout. 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. VIII-05 City of Hastings Proposal QTB197191 May 29, 2024 Page 4 Upon backfilling boring locations, we will fill holes in pavements with a temporary patch. Over time, subsidence of borehole backfill may occur, requiring releveling of surface grades or replacing bituminous patches. We are not assuming responsibility for re-leveling or re-patching 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 anticipate performing 20 moisture content tests, 4 sieve-hydrometers, 4 mechanical analyses (through a #200 sieve only) and 6 organic content tests. We will adjust the actual number and type of tests based on the results of our borings. Traffic Control Pavement coring, FWD testing and penetration test borings require our crews to perform work within the street. Based on the map provided, the streets appear to be low-volume residential streets. To protect our crews and alert motorists of our work within the street, we will use traffic control signs and flags. The cost for traffic control has been incorporated into our cost estimate. If additional traffic control is needed, such as flaggers, we will hire a subconsultant to perform that work and will submit a Change Order for those fees. Engineering Analyses We will use data obtained from our testing and drilling to evaluate the subsurface profile and groundwater conditions, and to perform engineering analyses related to pavement design and performance. Report We will prepare a report including:  A CAD sketch showing the project area and exploration locations  Results of GPR testing, including graphical data  Results of pavement coring and hand auger borings, as well as photographs of the pavement cores  Results of FWD analysis, including our recommendations for design R-values  Logs of the Borings describing the materials encountered and presenting the results of our groundwater measurements and laboratory tests  A summary of the subsurface profile and groundwater conditions  Estimated infiltrations rates for storm water ponds/features VIII-05 City of Hastings Proposal QTB197191 May 29, 2024 Page 5  Recommendations for design and construction of the streets, including recommendations related to the planned repairs. We understand 1st Street is to be designed to a 10-ton roadway and that all other streets require a 7-ton design. We will submit an electronic copy of our report. Schedule We anticipate performing our work according to the following schedule.  GPR Testing – within about two weeks of written authorization.  Pavement coring and hand auger borings – within about one week of analyzing the GPR data.  FWD testing – FWD testing will be completed after analysis of the GPR data and the pavement coring and hand auger borings.  Drill rig mobilization – we anticipate drilling can be performed within about 6 weeks of project authorization and that the work will take about 3 to 4 days to complete. We will do our best, however, to move this up in the schedule as other projects progress and fluctuate.  Classification and laboratory testing – within 1 week after completion of field exploration.  Final report submittal – we understand the final report is requested by August 30, 2024. 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 an estimated fee of $22,014. We are attaching a tabulation showing hourly and/or unit rates associated with our proposed scope of services. Our work may extend over several invoicing periods. As such, we will submit partial progress invoices for work we perform during each invoicing period. 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. VIII-05 City of Hastings Proposal QTB197191 May 29, 2024 Page 6 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. 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 Amy Grothaus at 651.261.7122 or (agrothaus@braunintertec.com). Sincerely, BRAUN INTERTEC CORPORATION Amy J. Grothaus, PE Senior Manager, Senior Engineer Matthew Ruble, PE Vice President, Principal Engineer Attachments: Tabular Cost Estimate General Conditions (1/1/18) 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 VIII-05 Client:Service Description:Work Site Address: Various City Streets Hastings, MN City of Hastings Cody Mathisen 101 4th St E Hastings, MN 55033 (651) 480-2350 Geotechnical and Pavement Evaluation Description Quantity Units Unit Price Extension Phase 1 Pavement Evaluation Activity 1.1 GPR Testing, Pavement Coring and Hand Auger Borings $2,899.50 259 Ground penetrating radar, per hour 2.00 Hour 200.00 $400.00 8640 GPR Mobilization 50.00 Each 3.75 $187.50 252 Bituminous Coring and Hand Auger Borings 10.00 Hour 200.00 $2,000.00 1555 Bit wear and patch material, per core 18.00 Each 15.00 $270.00 1861 CMT Trip Charge 1.00 Each 42.00 $42.00 Activity 1.2 FWD Testing $587.50 8620 Falling Weight Deflectomer (FWD) Testing 2.00 Each 200.00 $400.00 1087 FWD Mobilization 50.00 Each 3.75 $187.50 Phase 1 Total:$3,487.00 Phase 2 Geotechnical Evaluation Activity 2.1 Site Layout - Staking - Utility Clearance - CADD $1,990.00 205 Site layout and utility clearance 8.00 Hour 110.00 $880.00 288 Project Assistant 2.00 Hour 94.00 $188.00 371 CADD/Graphics Operator 2.00 Hour 136.00 $272.00 1862 UTIL Trip Charge 1.00 Each 42.00 $42.00 5099 Trimble R8 Rover (horizontal and vertical), per hour 8.00 Each 76.00 $608.00 Activity 2.2 Drilling Services $10,580.00 9000 Truck Mounted Drilling Services, per hour 26.00 Each 400.00 $10,400.00 9730 Grout with bentonite, materials per foot 60.00 Each 3.00 $180.00 Activity 2.3 Laboratory Testing $1,940.00 1152 Moisture content, per sample 20.00 Each 14.00 $280.00 1166 Loss by Washing Through #200 Sieve, per sample 4.00 Each 86.00 $344.00 1174 Organic Content, per sample 6.00 Each 86.00 $516.00 1172 Hydrometer - Sieve Analysis, per sample 4.00 Each 200.00 $800.00 Phase 2 Total:$14,510.00 Phase 3 Analysis and Engineering Activity 3.1 Consulting Labor $4,017.00 138 Project Assistant 4.00 Hour 94.00 $376.00 126 Project Engineer 14.00 Hour 180.00 $2,520.00 128 Senior Engineer 4.00 Hour 210.00 $840.00 125 Project Manager 1.00 Hour 145.00 $145.00 371 CADD/Graphics Operator 1.00 Hour 136.00 $136.00 Phase 3 Total:$4,017.00 05/28/2024 09:07 PM Project Proposal QTB197191 City of Hastings 2025 Infrastructure Improvement Projects Proposal Total: $22,014.00 VIII-05 General Conditions GC Page 1 of 2 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 over time. 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. 3.5 Neither this Agreement nor the providing of Services will operate to make us an owner, operator, generator, transporter, treater, storer, 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 or failure 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 attorney fees, 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. VIII-05 GC Revised 1/1/2018 Page 2 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 In consideration 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 10%, 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, or strict 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 may be 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 assign or 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 may be 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 of this 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. VIII-05