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HomeMy WebLinkAboutProfessional Services Agreement- Facility Engineering ORIGINAL ��sr r City of Oshkosh PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, made on the 30"'H day of JULY, 2018 by and between the CITY of OSHKOSH, hereinafter referred to as CITY, and. FACILITY ENGINEERING, 101 DEMPSEY ROAD, MADISON, WI 54714,hereinafter referred to as the CONSULTANT. WITNESSETH: That the CITY and the CONSULTANT, for the consideration hereinafter named, enter into the following Agreement. COMPONENT PARTS OF THE AGREEMENT This Agreement consists of the following component parts, all of which are as fully a part of this Agreement as if herein set out verbatim, or if not attached, as if hereto attached.: 1. This Instrument 2. Consultant's Professional.Services Proposal dated July 10,2018, and attached hereto. In the event that any provision in any of the above component parts of this Agreement conflicts with any provision in any other ofthe component parts, the provisionn in the component part first enumerated above shall govern over any other component part which follows it numerically except as may be otherwise specifically stated. CITY REPRESENTATIVE The CITY shall assign the following individual to manage this Agreement: (Brad Larson,Oshkosh Public Museum Director) SCOPE OF WORK. The CONSULTANT shall provide the services described in the CONSULTANT's attached Professional Services Proposal. CITY may make or approve changes within the general Scope of Services contained within the Professional Services Proposal and in this AGREEMENT.If such changes affect CONSULTANT's cost or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT. City Hall,215 Church Avenue P.O.Box 1130 Oshkosh,WI 54403-1130 http://www.cl.oshkosh.wi.us RECORDS AND INSTRUMENTS OF SERVICE All reports, drawings, software, data, computer files, and other materials, documents and instruments prepared by the CONSULTANT as instruments of service shall remain the property of the CITY. Any document related to this agreement, whether in electronic or paper form, is considered a public record and shall be provided to the City upon request. The CONSULTANT may provide the City with an explanation of why they believe any document should not be released to the public. The City shall make all final determinations regarding the existence or release of any document related to this agreement. TERM AND TERMINATION A. Term. This Agreement shall commence upon mutual acceptance by both parties and will be completed by December 31, 2018, unless terminated earlier by one of the parties as provided below, except that CITY may extend this Agreement,upon written notice to CONSULTANT. B. Termination. 1. For Cause. If either party shall fail to fulfill in timely and proper manner any of the obligations under this Agreement, the other party shall have the right to terminate this Agreement by written notice. In this event,the CONSULTANT shall be entitled to compensation to the date of delivery of the Notice. 2.For Convenience. The CITY may terminate this Agreement at any time by giving written notice to the CONSULTANT no later than 30 calendar days before the termination date. TIME OF COMPLETION The CONSULTANT shall perform the services under this Agreement with reasonable diligence and expediency consistent with sound professional practices. The CITY agrees that the CONSULTANT is not responsible for damages arising directly or indirectly from any delays for causes beyond the CONSULTANT's control. For the purposes of this Agreement, such causes include,but are not limited to, strikes or other labor disputes, severe weather disruptions or other natural disasters, or failure of performance by the CITY. If the delays resulting from any such causes increase the time required by the CONSULTANT to perform its services in an orderly and efficient manner, the CONSULTANT shall be entitled to an equitable adjustment in schedule, SUSPENSION,DELAY,OR INTERRUPTION OF WORK CITY may suspend, delay, or interrupt the Services of CONSULTANT for the convenience of CITY. In such event, CONSULTANT's contract price and schedule shall be equitably adjusted. ASSIGNMENT CONSULTANT shall not have the right to assign this Agreement without the written prior consent of the City. INDEPENDENT CONSULTANT CONSULTANT is an independent CONSULTANT and is not an employee of the CITY. COOPERATION IN LITIGATION AND AUDITS CONSULTANT shall fully and completely cooperate with the City, the City's insurer, the City's attorneys,the City's Auditors or other representative of the City (collectively,the "City" for purposes of this Article) in connection with (a) any internal or governmental investigation or administrative, regulatory, arbitral or judicial proceeding (collectively "Litigation") or internal or governmental Audit, with respect to matters relating to this Agreement, other than a third party proceeding in which CONSULTANT is a named party and CONSULTANT and the City have not entered into a mutually acceptable joint defense agreement. Such cooperation may include,but shall not be limited to, responding to requests for documents and/or other records, and making CONSULTANT's employees available to the City (or their respective insurers, attorneys or auditors) upon reasonable notice for: (i) interviews, factual investigations, and providing declarations or affidavits that provide truthful information in connection with any Litigation or Audit; (h) appearing at the request of the City to give testimony without requiring service of a subpoena or other legal process; (iii) volunteering to the City all pertinent information related to any Litigation or Audit, and (iv) providing information and legal representations to auditors in a form and within a timeframe requested. City shall reimburse CONSULTANT for reasonable direct expenses incurred in connection with providing documents and records required under this paragraph and may require, at the City's sole discretion,such expenses to be documented by receipts or other appropriate documentation. Reasonable direct expenses include costs, such as copying, postage and similar costs; but do not include wages, salaries,benefits and other employee compensation. CONSULTANT shall not be entitled to additional compensation for employee services provided under this paragraph. STANDARD OF CARE The standard of care applicable to CONSULTANT's Services will be the degree of skill and diligence normally employed by professional CONSULTANTS or consultants performing the same or similar Services at the time said services are performed. CONSULTANT will re-perform any services not meeting this standard without additional compensation. CITY RESPONSIBILITIES The CITY shall furnish, at the CONSULTANT's request, such information as is needed by the CONSULTANT to aid in the progress of the project, providing it is reason from ably obtainable City records. CONSULTANT may reasonably rely upon the accuracy,timeliness, and completeness of the information provided by CITY. To prevent any unreasonable delay in the CONSULTANT's work, the CITY will examine all reports and other documents and will make any authorizations necessary to proceed with work within a reasonable time period. PAYMENT A. The Agreement Sum. The CITY shall pay to the CONSULTANT for the performance of the Agreement the amount of $17,070.00 in the Cost Proposal of the Consultant's Professional Services Proposal. B. Method of Payment. The CONSULTANT shall submit itemized monthly statements for services. The CITY shall pay the CONSULTANT within 30 calendar days after receipt of such statement. If any statement amount is disputed, the CITY may withhold payment of such amount and shall provide to CONSULTANT a statement as to the reason(s)for withholding payment. C. Additional Costs. Costs for additional services shall be negotiated and set forth in a written amendment to this Agreement executed by both parties prior to proceeding with the work covered under the subject amendment. HOLD HARMLESS The CONSULTANT covenants and agrees to protect and hold the City of Oshkosh harmless against all actions, claims, and demands which may be to the proportionate extent caused by or result from the intentional or negligent acts of the CONSULTANT, its agents or assigns, its employees, or its SUBCONSULTANTs related to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation, and shall indemnify or refund to the CITY all sums including court costs, attorney fees, and punitive damages which the CITY may be obliged or adjudged to pay on any such claims or demands within thirty (30) days of the date of the CITY's written demand for indemnification or refund for those actions, claim, and demands caused by or resulting from intentional or negligent acts as specified in this paragraph. Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes,the City further agrees to hold CONSULTANT harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), which may be to the proportionate extent caused by or result from the intentional or negligent acts of the CITY, its agents or assigns, its employees, or its SUBCONSULTANTs related to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation,where such liability is founded upon or grows out of the acts or omission of any of the officers, employees or agents of the City of Oshkosh while acting within the scope of their employment. It is the intention of the parties to this Agreement that each party shall be solely responsible for its own actions and activities and the actions and activities of its own officers,employees and agents while acting within the scope of their employment INSURANCE The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance Requirements for Professional Services. WHOLE AGREEMENT/AMENDMENT This doc-ument and any specified attachments contain all terms and conditions of the Agreement and any alteration thereto shall be invalid unless made in writing, signed by both parties and incorporated as an amendment to this Agreement. NO THIRD-PARTY BENEFICIARIES This AGREEMENT gives no rights or benefits to anyone other than CITY and CONSULTANT and has no third-party beneficiaries. AGREEMENT NOT TO BE CONSTRUED AGAINST ANY PARTY This Agreement is the product of negotiation between the parties hereto and no term, covenant or provision herein or the failure to include a term, covenant or provision shall be construed against any party hereto solely on the basis that one party or the other drafted this Agreement or any term, covenant or condition contained herein. NO WAIVER Failure of either party to insist upon the strict performance of terms and provisions of this agreement, or any of them, shall not constitute or be construed as a waiver or relinquishment of that party's right to thereafter enforce such term or provision, and that term of the provisions shall continue in full force and effect. NON-DISCRIMINATION The Operator agrees not to discriminate in its operations under this Agreement on the basis of race,color, creed, age, and gender, or as otherwise prohibited by law. A breach of this covenant may be regarded as a material breach of this Agreement SEVERABILITY If any term, covenant, condition or provision of this agreement shall be invalid or enforceable, the remainder of this agreement shall not be affected thereby the remainder of the agreement shall be valid and enforceable to the fullest extent permitted by law. CHOICE OF LAW AND VENUE The laws of the State of Wisconsin shall govern the interpretation and construction of this Agreement. Winnebago County shall be the venue for all disputes arising under this Agreement. IN WITNESS WHEREOF, the City of Oshkosh,Wisconsin,has caused this contract to be sealed with its corporate seal and to be subscribed to by its City Manager and City Clerk and countersigned by the Comptroller of said City, and CONSULTANT hereunto set its hand and seal the day and year first above written. In the Presence of: CONSULTANT Name of Company/Firm IWIY ENQW KO, 040 . V By: (Seal of CONSULTANT (Specify Title) if a Corporation.) CITY OF OSHKOSH By: ark.A. Rohloff, City Manager ' t f iless) And: _&Iess) Pamela R.Ubrig,City Clerk APPROVED: I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract 4 City AiL'orney City Comptroller FACILITY ENGINEERING Since 1996 Maintenance July 1.0,2018 Programming Bradley G.Larson Architectural Director Engineering Oshkosh Public Museum . 1331 Algoma Boulevard Consulting Oshkosh, WI 54901, Proposal—Building Condition Assessment Oshkosh Public Museum Building Envelope: Dear Mr.Larson: Investigation Thank you for the opportunity to provide you with a proposal for professional services related to an Aysessinent assessment and inspection at the Sawyer Home, Steiger Wing and Carriage House(collectively, Design Museum),for the purpose of identifying and remedying the foundation moisture malady. You have Support requested a proposal to provide an assessment and inspection of selected regions of the interior of the buildings, along with their exterior counterparts. It would be to determine moisture's effects and the nature of necessary maintenance and/or repairs. More specifically,you are looking for a budget proposal for our firm to: Energy Conservation 1. Assist you with recommendations and specifications for any temporary work to keep water By Design. from entering the structure; 2. Perform as-needed assessment and inspection of selected interior spaces of the buildings to assist with determining what remedial action is required to repair compromised existing conditions; 3. Perform as-needed assessment and inspection of the exterior walls and roofing of the buildings to assist with determining what remedial action is required to repair compromised t existing conditions; 4. Assist you with identifying specific regions that need repair; and, 5. Assist you with specifying and detailing the type of materials and products to be used for Mfg the repairs. MEMBER OF Based upon our brief discussion and my understanding of the project to date,Facility Engineering, Inc. (FEI)proposes the following scope of work, Proposal FEI is proposing investigations and documentation consisting of a close examination of localized exterior and interior conditions. The goal is to develop a detailed and complete baseline assessment. Next we aspire to remedy selected existing exterior and interior conditions and define periodic scopes of work for maintenance and/or repair. • Existing drawings(in the possession of the Museum)shall be copied and supplemented with notes and photographs of selected facades and other selected related regions, • Field notes shall be annotated on the drawings or photographs.A brief narrative report on these drawings shall outline the general conditions,identify areas of concern and outline general priorities. 101 Dempsey • Madison WI 53714 608.240.9110 • fax 608.240.9112 w, ineenn y Road "Jacilit en inc.com Y 9 9 Proposal—Building Condition Assessment Oshkosh Public Museum MT.Bradley G.Larson June 10,2018 Page 2 of 3 • Any field conditions or dimensions that are different than drawings would only be generally noted. • All observation shall be performed from the ground or roof(s),via aerial lift,or from floor- level as in the case of interior review, • Suggestions will be provided for areas requiring further inspection. General approach Mobilization Collect&Review Drawings and Reports • The Museum will assemble and copy all relevant historical and contemporary documents (including photographs and drawings)from their collection and make them available to FEL • FEI will prepare for on-site as-needed condition assessment: coordinate access, dates and times with the Museum's staff. Assessment&Inspection Condition Assessment&Inspection • Up to thirty-eight hours travel and on-site observation and inspection of conditions and recording field notes and photos. • Minor selective removal of materials as necessary. • Conduct interviews with Museum's staff. • Review conditions at end of each site visit. • Meet with the Museum's staff to discuss findings. Analysis&Findings * Prepare text and illustrations for inclusion in a narrative report. 0 Define issues,concerns and areas for further inspection. 0 Define priorities and immediate and long term needs. Meeting 0 Discuss findings from observation and inspection. 0 Discuss key issues,priorities and areas for further analysis. 0 Discuss probable scope of remedial,restoration and preservation work. Compensation Compensation is based upon hourly rates and related hours assigned to each defined task plus reimbursable expenses. Any additional services beyond the scope of this proposal will be performed upon written authorization and will be compensated at the hourly rates indicated. Professional Fees FEI proposes its fee shall not exceed the following estimates for the listed activities.' Mobilization $ 1,930.00 Assessment&Inspection $ 11,640.00 $ 3,500 Allowance(equipment and operator) .00 Estimated Total Fee $17,070.00 Fees shall be billed using the standard terms and conditions(copy attached)or mutually-agreed upon terms. 101 Dempsey Road e Madison,W1 53714. 608.240.9110 * fax 608.240.9112 www.facilityengineeringincxom Proposal—Building Condition Assessment Oshkosh Public Museum Mr.Bradley G.Larson June 10,2018 Page 3 of 3 Related reimbursable expenses are not included and will be billed in addition to the base fee. Sample reimbursable expenses:mileage, aerial lift,excavator. Schedule We can begin field work immediately. General Terms • FEI shall be provided full access(with escort)to the interior and exterior of the property for the duration of time required to complete the work. • The on-site observations will be conducted over a period of multiple working days. • The Museum shall provide information on the history of the building and construction,repairs and/or modifications made. • Hazardous materials work is not included within the scope of this work. • In recognition of the relative risks,rewards and benefits of the project to both the Museum and FEI,the risks have been allocated such that the Museum agrees that,to the fullest extent permitted by law,FEI's total liability to the Museum for any professional liability claims or claim expenses arising out of the agreement from any cause or causes, shall not exceed the value of the contract. • This list is not all-inclusive and is meant to complement any Purchase Order agreement. If the proposal meets with your approval and acceptance,please sign a copy and forward it to our office.Thank you for this opportunity. Sincerely, Facility Engineering,Inc. Daniel L.Maki,P.E.,M ASCE,l3ECxP Project Engineer DM/pw Encl. Standard Terms and Conditions ACCEPTANCE OF PROPOSAL The above prices and conditions are satisfactory and hereby accepted. Date of acceptance Signature Title 101 Dempsey Road • Madison, WI 53714. 608.240.9110 • fax 608.240.9112 www.facilityenginee(inginc.com STANDARD TERMS AND CONDITIONS Performance: The terms and conditions stated herein shall be binding upon all officers,directors,employees,subconsultams(collectively,Consultant)assignees,heirs,partners, subsidiaries,limited liability company members,association members,employees,agents and representatives and any person or party intended to be or claiming to be A third party beneficiary of the services performed pursuant to this Agreement. Facility Engineering,Inc.(FEI)and its employees will exercise the degree of skill and care expected by customarily accepted practices and procedures. No warranties, expressed or implied,are made with respect to FEI's performance,unless agreed to in writing. FEI is not a guarantor of the project to which its services are directed,and its responsibility is limited to work performed for the Client. FEI is not responsible for acts or omissions of the Client,or for third parties not under its direct control. FEI shall not be liable for any reason for any special,indirect or consequential damages including loss of use and loss of profit. FEI may rely upon information supplied by the Client engaging FEI,or the contractors or FEI's consultants involved,or information available from generally accepted reputable sources,without independent verification,At no time shall FEI be responsible for consultation services pertaining to hazardous materials including but not limited to asbestos,mold,and lead. Client shall promptly notify FEI of any claim for loss or damage which is alleged to have resulted from any action,error or omission of FEI in performing its services. Client shall give FEI reasonable opportimity to inspect and investigate the premises before any work to remove or remediate the existing work is performed. The failure of Client to give FEI prompt notice saddle reasonable opportunity to inspect and investigate the premises shall mean FEI has no liability for the cost of any repairs or remedial action or for any other loss or damage claimed by Client.In addition,and not withstanding any other provisions of this Agreement,the Client agrees,to the fullest extent permitted by law,to indemnify and hold harmless FEI against all damages,liabilities or costs,including reasonable attorneys'fees and defense costs,arising out of or in any way connected with our services or the performance by any of the parties above-named of the services under this Agreement, These Standard Terms and Conditions shall continue in full force and effect during,as well as after,the completion or termination of FEI's employment. These Standard Terms and Conditions shall control any conflicting term or condition unless FEI shall agree in writing. FEI shall not have control over or charge of and shall not be responsible for construction means,methods,techniques,sequences or procedures,or for safety precautions and safety programs in connection with the project,since those are solely the responsibility of others. FEI shall not have control over or charge of acts or omissions of the Contractor,Subcontractors,or their agents or employees,or of any other non FEI persons performing portions of the project. FEI's total liability for services performed under this Agreement shall not exceed the amount paid to FEI for services under this Agreement Billing&Payment Terms: Unless otherwise stated,full payment for FEI invoices are due upon receipt. Late payments shall accrue interest at the rate of 18%per annum,on all amounts due starting on the 31 st day after the invoice first being sent to the client. Payment of any invoice by the Client to the Consultant shall be taken to mean that the Client is satisfied with the Consultant's services to the date of payment and is not aware of any deficiencies in those services. The Client agrees to pay for all costs incurred,including legal fees,collection agency fees,court costs,reasonable FEI staff costs and other expenses for collection of past due balances.All collection costs incurred shall be immediately due and payable to FEL This obligation of the Client to pay the Consultant's collection costs shall survive the term of this Agreement or any earlier termination by either party. Payment for services tendered shall be due regardless of any subsequent suspension or termination of the agreement. FEI reserves the right to require an initial retainer or progress retainer(s)to account for a least one month's anticipated charges and expenses to be payable upon receipt of invoice and prior to FEI proceeding with any services. Disputed Invoices: Notification of any objection or dispute regarding the invoice shall be within ten(10)business days of receipt of invoice.The Client shall identify in writing the specific cause of the disagreement and the amount in dispute. Any portion of the invoice that is not in dispute shall be paid according to the payment terms or otherwise result in curtailment of services. FEI reserves the right to collect fees on all undisputed portions of the invoice(s)that may become past due. Suspension of Services: If the Client fails to make payments when due or otherwise is in breach of this Agreement,the Consultant may suspend performance of services upon sixty(60)calendar days'notice to the Client.The Consultant shall have no liability whatsoever to the Client for any costs or damages as a result of such suspension caused by any breach of this agreement by the Client.Upon payment in full by the Cheat,FEI shall resume services under this agreement,and the time schedule and compensation shall be equitably adjusted to compensate for the period of suspension plus any other reasonable time and expense necessary for FEI to resume performance Termination of Services: Tlic Client's failure to make payments for services rendered in accordance with the payment terms of the contract constitutes a material breach on the agreement and this material breach is cause for termination of the entire agreement. Termination: I In the event of termination of this Agreement by either party,the Client shall within fifteen(15)calendar days of termination pay FEI for all services rendered and all reimbursable costs incurred by FEI up to the date of termination,in accordance with the payment provisions of this Agreement. Ile Client may terminate this Agreement for the Cheat's convenience and without cause upon giving FEI not less than seven(7)calendar days'written notice. Either party may terminate this Agreement for cause upon giving the other party not less than seven(7)calendar days'written notice for any of the following reasons: Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party, Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; Suspension of the Project or FEI's services by the Client for more than ninety(90)calendar days,consecutive or in the aggregate; Material changes in the conditions under which this Agreement was entered into,the Scope of Services or the nature of the Project and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. In the event of any termination that is not the fault of FEI,the Client shall pay FEI,in addition to payment for services rendered and reimbursable costs incurred,for all expenses reasonably incurred by FEI in connection with the orderly termination of this Agreement,including but not limited to demobilization,reassignment of personnel, associated overhead costs and all other expenses directly resulting from the termination. LF 1 of 2 July 2017 Transfer of Documents: Upon receiving payment in full for the project FEI will transfer the ownership of the Clients design documents. Use of Reports,Drawings,Etc.: FEI retains ownership of letters,reports,drawings,specifications,test data and notes. These documents or parts thereof may not be reproduced in advertisements,brochures, or sales material,nor used by the Clientfbr any purpose other than the purpose for which they were prepared,nor by third parties,without the written permission of FEI, Conclusions by FEI based on test results are limited to the specific conditions for which the tests were performed, FEI shall have no Lability for Client's use of or reliance on FEI's ropotts,drawings or other instruments of service on future projects for which FEI is not retained to provide services. Agreement(s)referencing these terms and conditions shall not be assigned or transferred without express written consent of FEI. Proposals: Proposals expire 120 days after submission to a Client unless a different expiration limit is included in the proposal, FEI may withdraw or modify a proposal at any time prior to acceptance by the Client. Fixed Price Contracts: Where FEI and the Cheat have agreed to a fixed price contract,the following terms and conditions are specifically excluded: Time Charges,Expenses,Equipment Usage, Affiliated Consultants,and Subcontracted Services. Progress payments will be arranged with the Client Other stated billing terms remain in effect, Time Charges; Accrued on an hourly basis,unless other arrangements are established. No increase in rates for overtime. No charge for out-of-town travel time of professional staff outside of normal 8-hour workday unless time is productive. Expert witness services,including investigation,assessment,research,meetings,deposition,testimony,mediation,and related activity support will be billed at Premium Rates, Fee Schedule: Standard Rat Design Support Services,Administrative $80.00 per hour Technician,Drafting,Asset Management $115.00 per hour Project Manager 1 $145.00 per hour Project Engineer $175.00 per hour Expenses: Public transportation;subsistence and out-of-pocket expense incurred during travel;communications;reproduction and shipping charges: Cost plus 15%(Invoiced as an Expense Service Fee); Expended materials for field and laboratory investigations;rental equipment;fees advanced on Client's behalf Cost plus 15%(Invoiced as an Expense Service Fee); Company or personal auto: Mileage to be paid at current federal rate; Clients may be charged for the cost ofproviding copies ofreceipts or detailed"back-up"information concerning expenses. Definition of"Hazardous Materials": As used in this agreement,the term hazardous materials shall mean any substances,including without limitation asbestos,toxic or hazardous waste,PCBs,combustible gases and materials,petroleum or radioactive materials(as each of these is defined in applicable federal statutes)or any other substances under any conditions and in such quantities as would pose a substantial danger to persons or property exposed to such substances at or near the Project site. Hazardous Materials—Suspension of Services: Both parties acknowledge that the FEI's scope of services does not include any services related to the presence of any hazardous or toxic materials. In the event FEI or any other person or entity involved in the project encounters any hazardous or toxic materials,or should it become known to FEI that such materials maybe present on or about the jobsite or any adjacent areas that may affect the performance of FEI's services,FEI may,at its sole option and without liability for consequential or any other damages, suspend performance of its services under this Agreement until the Client retains appropriate qualified consultants and/or contractors to identify and abate or remove the hazardous or toxic materials and warrants that thojobsite is in fall compliance with all applicable laws and regulations. Hazardous Materials Indemnity: The Client agrees,notwithstanding any other provision of this agreement,to the fullest extent permitted by law,to indemnify and hold harmless FE1,its officers,partners, employees and sub consultants(collectively,FEI)from and against any and all claims,suits,demands,liabilities,losses,damages or costs,including reasonable attorneys' fees and defense costs arising out of or in any way connected with the detection,presence,handling,removal,abatement,or disposal of any asbestos or hazardous or toxic substances,products or materials that exist on,about or adjacent to the Project site,whether liability arises under breach of contract or warranty,tort,including negligence, strict liability or statutory liability,regulatory or any other cause of action,except for the sole negligence or willful misconduct of FEI. LF 2 of 2 July 2017