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HomeMy WebLinkAboutresolution.council.010-94 ~ tA .,. (e ('..... "C,.. 5-=- 30 Ac- RESOLUTION NO. 10 Series of 1994 A RESOLUTION APPROVING A PROFESSIONAL SERVICES AGREEMENT BETWEEN BANNER ASSOCIATES, INC. AND THE CITY OF ASPEN, COLORADO FOR PROFESSIONAL CONSULTATION SERVICES RELATING TO THE NEALE AVENUE SIDEWALK PROJECT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a professional services agreement between Banner Associates, Inc. and the City of Aspen, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that professional services agreement between Banner Associates, Inc. and the City of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the;2t day of ~ ' 1994. ~'.a.. 4 John S. Bennett, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. M19.94 e (1..(1.... ~,. .'< ,t.... i~. -~- Exhibit "A" AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Banner Associates, Inc., Colorado ("Profession- al"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth within this Request for Proposals and by this reference incorporated herein. 2. Completion. Professional shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than September 2, 1994 . Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional (See Exhibit "A") Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's billing, the City understanding of the disposition of the issue. Professional's invoice shall be for the period ending the 25th day of each month. The invoice should be received by the City's project engineer no later than the 1st of each month. 4. Non-Assignability. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Profes- sional shall be and remain solely responsible to the City for the acts, 'errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of 1 ,e.. th ~. ~ ''II' e. ~\ " - the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination. The Professional or the City may terminate this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional shall become the property of the City. Notwith- standing the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and. the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 6. Covenant Against Contingent Fees. The Professional warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. For a breach or violation of this contract without liability, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation 2 ,-.. II' ~. ~. ~. ., claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. The Professional also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 6 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 6 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 6 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOU- SAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this paragraph. 3 '- € \"j e'. \.\ "'" 'e . b. \t~. . -- (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non- owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be cancelled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. 4 tA.... t\. ~e f8. ~. ,', "< (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., c.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Comoleteness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested, to: City: Amy Margerum, City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 Professional: Banner Associates, Inc. 605 East Main, Suite 6 Aspen, Colorado 81611 13. Non-Discrimination: penalty. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional 5 &A. ., "-'..'.. ~~ ~ 'i:" (It of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. Dated: \3j/.l.J/::; f ATTESTED BY: CITY OF ASPEN, COLORADO: By: 6 tA \\. tA. W' e, \'" "'. WITNESSED[: ~ ~ ,n. . lL-4.. r~~ ~..">\.,\.<.""'* .... <l-C . PROFESSIONAL: 'BANNf;o'}(.. ;9~$~e:.',,1'~ /H>:'. BY:~~~~ "'EIV/"~ /Vn:d' ,P1l~$NPtSNr APPROVED AS TO FORM BY: ~~~ .. BID FORM ,a. C~ty Engineer ~. City of Aspen '. 130 South Galena Street Aspen, CO 81611 303-920-5088 1i="8t<JMl1 It /It 1994 To Whom It May Concern: SUBJECT: PROFESSIONAL SERVICES - NEALE AVENUE SIDEWALK DESIGN & CONSTRUCTION/PROJECT MANAGEMENT The undersigned hereby states that he or she has carefully examined the project manual, . drawings, and other contract documents; and, has fully investigated the location, character and extent of the work to be done, as descnbed in the Request for Proposals, the referenced project. The undersigned further states that he or she is familiar with the type . of work involved. - \\. The bidder agrees to hold this bid open for sixty (60) days from the bid opening date. The bidder will enter into and execute a contract within 10 days from the date of the Notice of .Award, if awarded on the basis of this bid, and will furnish acceptable certificates of insurance, construction schedules, and other necessary contract documents. The undersigned declares that he or she has, in arriving at their conclusions, utilized data from the Owner, and their own sources, which he or she believes pertinent to arriving at the amounts for the work to be completed. under these contract documents. BID SCHEDUlE The undersigned in compliance with the Request for Proposals, hereby proposes to perform all work called for in said Request for Proposals; and, to furnish all labor, materials, tools, operation equipment, and all appurtenances necessary for completion of the Work at the total prices shown on the following Bid Schedule. It is understood that the description of work as included herein, is brief and is intended only to indicate the general nature of the work. 'It.. \!J.;... ii\".. .e lY... \1<,,_ I.e, r '>'. "\'", '...'..e' if ;'," \"," -- 1. PROFESSIONAL SERVICES TO DESIGN & CONSTRUCTION/PROJECT MANAGE THE NEALE AVENUE SIDEWALK AS DESCRIDED IN SCOPE OF WORK TOTAL BID: 00 $ 20, 5~O - TOTAL BID WRITTEN: 7W&l1V "({foe/SAN!> ,r:'lr'%. I/Jrll/pU) S/X-ry ~ rlo /:oO/~ 2. PROFESSIONAL SERVICES OF RIGHT-OF-WAY ACQUIsmON SERVICES, IF NEEDED - IN DOLLARS PER HOUR (CITY ESTIMATES 100 HOURS) ",0 BID ($/HOUR): $ <;:; 5" - / Hi?. BID WRITTEN (DOLLARS PER HOUR): tt?/K.,-V FIt/,€. .7J?1.L41'< I 'PM- tb'-',L.. 3. PROFESSIONAL SERVICES TO COORDINATE DESIGN & CONSTRUCTION WITH EPA AS NEEDED BID ($/HOUR): $ 651:/.2/ /Ht. . BID WRITTEN (DOLLARS PER HOUR): <7lny rwfG PoU-;/fl-S 7v.. ffcJl.I1<- 4. PROJECT DATES OF COMPLETION OF CONSTRUCTION DRAWINGS AND SPECIFICATIONS /1A<f - .;7</1'1/2. /'111 In submitting this Bid, it is understood that the right to reject any and all bids has beeil reserved by the Owner. ,II DATED THIS IS - DAY OF ~c8,e(/-9~ Y , 1994 NAME OF BIDDER .l31-NHg/Z hSo<-l Arr-S . ::eN':'. < ADDRESS &JC;; 13. HAlt-! ?r -iI:-? A~ I Co 8/ (Pl( , 1:ELEPHONE NUMBER ~q-'585<- AUTHORIZED OFFICER . ~n/l1r t/f.:e: ~J~e"f e la... '. 11<.It..... 1;, V \~. ADDENDUM TO BID FORM City of Aspen 130 South Galena Street A~pen, CO 81611 (303)920-5088 February 21, 1994 SUBJECT: PROFESSIONAL SERVICES - NEALE AVENUE SIDEWALK DESlGN & CONSTRUCTIONjPROJECT MANAGEMENT To Whom It May Concern: The undersigned hereby states that the Bid Fonn dated Februnll')' 18, 1994, is hereby revised as follows: 1. PROFESSIONAL SERVICES to Design and ConstructionlProject Mannge the Neale Avenue Sidewalk Project as described. in the Request for PropoSi1Js, subject to the clarifications that construction will be one season only (1994 or 1995), that Phase II mayor may not be awarded, and that the Con tract ,will be billed at a time and materials basis in accordance with the attacbed Rate SChedule with total Costs not to exceed: Phase I Design Services: Eleven Thousand Six Hundred Dollars nnd No Cents ($11,600.00). Phase II ConstructionlProject Management Services: Four Thousand Three Hundred Dollars and No Cents ($4,300.00). Professional services for Right-of-Way acquisition and Coordinate and address EPA issues will be billed at an hourly rate of $65.00/hour. 4. DATE OF COMPLETION OF CONSTRUCTION DRAWINGS, SPECIFICATIONS, AND BID PACKAGE: Monday, May 23,1994 In submitting this Addendum, it is understood that the right to reject any and all bids hilS been reserved by the Owner. DATED TIiTS..lL DAY OF February, 1994 NAME OF BIDDER BANNER ASSOCIA TE~_JNC. ADDRESS 605 E. Main Street Suite #6 TELEPHONE NUMBER ~5-5857 ~d~1j / AUTHORIZED OFFICER ~e",... ~. " leI (0. " "-- -' " , BANNER ..taliI~~~ CONSULTING ENGINEERS & ARCHITECTS SCHEDULE OF FEES CONSULTING SERVICES BANNER ASSOCIATES,INC. 2777 Crossroads Boulevard Grand Junction, Colorado 81506 (303)243-2242 FAX (3031243.3810 605 East Main, Suite 6 Project Engineer. . . . . . . . . . . . .. $59.00lHour Aspen, Colorado 81611 (303)925.5857 Field Assistant . . . . . . . . . . . . . .. $34.00lHour Secretary/Word Processor. . . . . . . S32.00lHour Land/Mineral Surveyor. . . . . . . . . . $6S.cKJ/Hour CADD Operator/Drafter. . . . . . . . . $39.00lHour DrafterlDesigner . . . . . . . . . . . . . . $43.00II-Iour Project Manager. . . . . . . . . . . . .. $65.00{Hour Inspector. . . . . . . . . . . . . . . . . . . . $45.00lHour Senior Project Manager . . . . . . . .. S80JJO/Hour Computer Programmer/Operator . . $48.00lHour Principal. . . . . . . . . . . . . . . . . . .. $95.00lHour Design Engineer I . . . . . . . . . . . .. $50.00lHour 2~Person SUIVey Crew. . . . . . . . .. $96.cXJfHour Design Engineer II . . . . . . . . . . .. $53.00lHour 3-Person SUIVey Crew. . . . . . . . .. :S110.00lHour MISCELLANEOUS Vehicle. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $0.45/Mile Out~of- Town Living Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Actual Cost Reproduction: Photocopies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $O.lS/Copy Blueprints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. $0.23/Sq. Ft. 'Aylar . . . . . . . . . . . . . . . , . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , , " $1.20/Sq. Ft. Subcontracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ . . . . . . . . . Cost Plus 10% Overnight Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Cost Plus 15% FAX . . , . , . . . . . . . . . . . .. . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $O.80IPage Other Direct Reimbursables . . . . . _ . . . . . . . . . . . + . . . + . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Cost Plus 15% Long Distance Telephone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cost Plus 15% TIllS RATE SCHEDULE IS EFFECTIVE THROUGH JUNE 30, 1994 WE RESERVE THE RIGHT TO ADJUST RATES ANNUALLY THEREAFTER PAYMENT Invoices will be submitted periodically for charges incurred. Payment of the invoices is due by the tenth day of the month following the date of the invoice. A charge of 1 112% per month will be made for invoices paid more than thirty (30) days after the invoice date. Attorney's fees or other costs incurred in collecting delinquent amounts shall be paid by the Client. CONDITIONS BANNER ASSOCIATES, INC. warrants that our services are perfonned, within the limits prescribed by our clients, with the usual thoroughness and competence of the engineering profession. No other warranty or representation, either expressed or implied, is included or intended in our proposals, contracts or reports. In the event that the Client makes a claim against BANNER ASSOCIATES, INC., at law or othelWise, for any alleged error, omission, or other act arising out of the perfonnance of our professional services, and the Client fails to prove such claim upon final adjudication, then the Client shall pay all costs incurred by BANNER ASSOCIATES, INC., in defending itself against the claim, including but not limited to, personnel related costs, attorney's fees, court costs, and other claim related expenses. <:COST OPINIONS Any '.:"<::t opinions of project eoonomic evaluations provided by BANNER ASSOCIATES, INC., will be on a basis of experience and judgu.,; ~1!, hut since BANNER ASSOCIA 1ES has no control over market conditions or bidding procedures, BANNER ASSOCIA 1ES cannot warrant that bids, ultimate construction costs, or project economics will not vary [rom these opinions.