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HomeMy WebLinkAboutBERK Consulting for EIS for Belfair Subarea Plan MC Contract#20-044 CONSULTANT AGREEMENT BETWEEN MASON COUNTY BERK CONSULTING, INC. 2111 N 5th St 2200 Sixth Avenue,Suite 1000 Shelton,WA 98584 Seattle WA 98121 Agreement Summary PROJECT: MASON COUNTY BELFAIR URBAN GROWTH AREA ENVIRONMENTAL IMPACT STATEMENT NUMBER: R0010509 This agreement is made between MASON COUNTY ("CLIENT') and BERK CONSULTING, INC. ("BERK"). BERK will provide professional consulting services for the CLIENT. The scope of work and project are described in the Scope of Work attached hereto as Exhibit A (the "SOW'). Performance Services provided under this agreement will be performed by BERK from April 2020 through April 2021, unless modified by a written agreement of the parties. Compensation and Payment The CLIENT shall pay BERK on a time and materials basis, not to exceed $199,949 in accordance with the Budget set forth below. BERK will invoice the CLIENT on a monthly basis. Invoices will include the hourly rate(s) for services performed,the hours worked, additional expenses and costs incurred, and the date concluded. CLIENT shall pay the invoice within thirty (30) days of receipt. Budget and Timeline BERK will invoice CLIENT on a time and materials basis, with a total not to exceed $199,949, which includes travel and other reasonable expenses and costs. Our estimated time and cost per deliverable is shown in the SOW. The actual time and cost may vary from this estimate depending on factors outside of our control,however,the total spent will not exceed the maximum stated above without CLIENT's prior written consent, or unless the actual amounts of third-party expenses and costs incurred by us substantially exceed our estimates, in our sole discretion. The timeline for this project is approximately 12 months, with .a final project schedule to be determined collaboratively between the CLIENT and the BERK project team. Adherence to the project schedule will depend upon timely availability of data, feedback on draft,deliverables, and other material from the CLIENT project team. :111 Changes BERK will accommodate CLIENT's material changes to, or requests for work outside of, the SOW attached hereto as Exhibit A,provided that such material changes or requests, and the compensation payable to BERK therefor, are agreed to in writing pursuant to the Amendment in substantially the form attached to this Agreement Summary as Exhibit C. Terms and Conditions This agreement incorporates by reference the SOW attached hereto as Exhibit A. the Standard Terms and Conditions attached hereto as Exhibit B (together, and with all exhibits, attachments and schedules hereto, the "Agreement"). The Agreement constitutes a binding contract between CLIENT and BERK. Acceptance By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below(the"Effective Date"),and each signatory represents that it has the full authority to accept this Agreement, and to bind her/his respective party to all of the terms and conditions herein. MASON COUNTY BERK CONSULTING, INC. By � �f By: Principal Title: (')a.;}- Title: Date: .5//1/20,2n Date: 05/06/20 :i,l Consulting Agreement 5/6/20 I Mason County I Belfair Urban Growth Area EIS 2 May 5,2020 EXHIBIT A Belfair Urban Growth Area Planned Action EIS and . Subarea Plan Update Project Understanding The Belfair Urban Growth Area is nearly 4 square miles located in northern Mason County. Its population is about 1,054 in 2019,growing by just 62 persons since 2010, but serving as a commercial hub for a greater area. SR 3 bisects the community and was recently widened,the County received a loan to further develop a sewer system, and a new state bypass route is pending.With these infrastructure investments facilitating travel between Kitsap and Mason Counties,a small town quality of life,and natural environment assets, Belfair may soon experience a rapid increase in growth and has recently seen several large residential projects enter the permit pipeline. The County seeks to develop a Planned Action Environmental Impact Statement (EIS) and ordinance for the Belfair UGA. In association with the Planned Action,the County intends to update the Belfair UGA Plan,adopted in December 2004.With these two key project elements,Mason County desires to facilitate growth that supports a community-based vision for Belfair.The 2004 Belfair UGA Plan concept identified three centers in the community— North End,Downtown,and Salmon Center,upgrades to transportation and sewer infrastructure,and improvement to the natural environment including water quality as well as parks and open space.Through community engagement,the vision will be refreshed. The BERK team will support Mason County in this project through extensive experience and local knowledge: • BERK will lead the Planned Action EIS and Ordinance development and serve as prime of the team. • MAKERS will support the effort to refresh the Subarea Plan. • Transpo will lead the Transportation Element of the EIS and support the Subarea Plan. • Herrera will lead the Natural Environment and Utilities elements of the EIS and support the Subarea Plan. Collectively the team is referenced as "the Consultant" below. :111 1 Project Scope Task 1 . Project Definition and Engagement Plan Under Task 1, the Consultant will: ■ Organize and conduct a kickoff meeting with the County to review project goals, identify the study area boundaries, discuss public participation objectives and strategies, review proposed technical analysis, and brainstorm alternatives. ■ Develop a document template/format, and other administrative items for use by the EIS project team. ■ Develop a public participation plan that integrates subarea plan and EIS outreach as well as public input opportunities. Task 2. Vision, Scoping, and Alternatives The Consultant will facilitate a combined visioning and scoping process including: ■ Engaging the community in a Visioning process including a community meeting (virtual or in-person) and survey. A virtual meeting could include a recorded webinar with presentation and "chat" features (e.g. Zoom or Microsoft Teams). Other virtual efforts could include development of a project website using ESRI StoryMaps, which can incorporate maps, narrative descriptions, and visual media (photos and videos), along with a survey. The survey will likely be addressed in Survey Monkey, with an option for postcards to be placed at markets or other places to gain more feedback. These activities will be part of the Planned Action scoping process. ■ Preparing handout materials for a Visioning and Public Scoping Meeting ■ Preparing a SEPA checklist and scoping notice, addressing all topics not expected to be addressed in the EIS to a sufficient level of detail. ■ Providing guidance on EIS alternatives to analyze. Recommending alternatives to be discussed during scoping. Three alternatives will be studied in the draft EIS—no action, a proposed action, and a third alternative that may vary the amount and location of development. Task 3. Environmental Impact Statement Preliminary Draft EIS The Consultant will prepare a preliminary draft EIS for County review and comment. Although the scope of the EIS has not yet been determined, likely EIS elements will include the following sections: General Sections (BERK). The Consultant will prepare a fact sheet, table of contents, distribution list, alternatives description, appendices, and other necessary supporting documentation for County review. The alternatives description will include a description of the proposed land use patterns, planning :111 May 5,2020 Mason County I Belfair UGA Planned Action EIS and Subarea Plan Update 2 envelope of anticipated development in the study area, building typologies under each alternative (using illustrations and photos developed in the Subarea Plan where possible), and circulation and infrastructure features that are part of the alternatives. Natural Environment (Herrera). Through our recent work developing the Belfair UGA 2018 Basin Plan (Belfair Basin Plan) and other projects in this vicinity of Hood Canal, we are deeply familiar with the natural environment of the area. The Consultant will leverage this knowledge to efficiently summarize key features of the existing natural environment and evaluate the potential impacts on the natural environment for each of the subarea alternatives. From past experience we know that well-conceived mitigation strategies can enable the UGA to become a more vibrant economic and social center while protecting the natural environment, and we will focus on mitigation during the course of our analysis Transportation (Transpo). The Consultant will leverage the transportation analysis and forecasting completed for the Mason County's Belfair Mobility Plan, September 28,2018 and WSDOT's SR 3 Freight Corridor project for the EIS alternatives analysis. The Consultant's work will include coordination with both Mason County and WSDOT to ensure we are incorporating the latest transportation plans and data. A multimodal alternatives analysis will be conducted to evaluate vehicle, transit, pedestrian and bicycle impacts. The analysis will consider how planned improvements accommodate the anticipated growth by each alternative and identify potentially significant transportation impacts as well as mitigation measures. For planned improvements and identifying mitigation measures, consideration will be given to additional planning that has occurred by WSDOT for the SR 3 Freight Corridor since completion of the Belfair Mobility Plan. Land Use and Aesthetics (BERK). The Consultant will compare and evaluate the proposed amount, types, scale, and pattern of uses in comparison with the existing land use pattern and adjacent development. The Consultant will include an evaluation of development targets and capacity for each alternative. The Consultant will identify policy or code provisions that serve as mitigation measures. The Consultant will also describe the overall aesthetic character of the study area in terms of the quality of the built environment, the design and character of existing buildings, and building height, bulk, and scale. Our evaluation will consider the nature and magnitude of change envisioned by the subarea plan. The visual character analysis will rely primarily on narrative description, photographs of existing conditions, and the graphics and materials developed for the subarea plan. Public Services (BERK). The Consultant will review existing levels of service, estimated needs and demand for service, and projected levels of service under each alternative for police and fire protection, parks and recreation, and schools. The Consultant will coordinate with appropriate service provider staff. The Consultant will base the analysis to the extent feasible on available plans and population-based estimates of demand. Stormwater Management (Herrera). Building from the Belfair Basin Plan, the Consultant will refresh the description of existing stormwater system and identify system improvements that are needed to facilitate implementation of the updated subarea plan. The Belfair Basin Plan determined that even with implementation of modern stormwater regulations, development in the UGA would cause notable increases in stormwater discharge within certain sub-basins. The recommended stormwater retrofits in the Belfair Basin Plan will form the foundation for planning stormwater capital improvements. Utilities—Sewer and Water (Herrera). The Belfair UGA area is fortunate in having a new state of the art mill May 5,2020 Mason County I Belfair UGA Planned Action EIS and Subarea Plan Update 11 3 wastewater treatment facility with plenty of capacity for growth. The Consultant will work with Mason County Utilities and Waste Staff as well as PUD No. 1, as needed, to summarize the existing sewer and water systems, evaluate the impacts of subarea development on these utilities, and define any system improvements that may be necessary to provide adequate sewer and water service in the future. Draft EIS Based on County comments on the preliminary draft EIS, we will prepare a draft EIS for public review. The Consultant will prepare the notice of availability for County publication. Final EIS The final EIS will consist of a fact sheet, table of contents, draft EIS analysis corrections as needed, description of the preferred alternative if needed, and responses to comments. The Consultant will prepare a preliminary final EIS for County review and comment. Based on County comments, we will prepare a final EIS for public issuance. The Consultant will prepare the notice of availability for County publication. Implementing SEPA Ordinances To ensure that impacts and mitigation measures are addressed over the 20-year period, we will work with the County to prepare the ordinance that designates the Planned Action. As outlined in WAC 197- 1 1-168, the ordinance will address the type of project action; compliance with the criteria for a planned action; findings related to adequacy of the Planned Action EIS; and mitigating measures required to qualify future projects as Planned Actions. The Consultant will participate in a public meeting or hearing to allow public comment on the Planned Action Ordinance. The County will maintain primary responsibility for public notice, meeting scheduling, and meeting logistics. Task 4. Subarea Plan Update The Consultant will update the 2004 Subarea Plan. The Consultant will: • Integrate a refreshed Vision from Task 2 and update the Subarea Concept. • Analyze existing land use/zoning designations and propose necessary changes. • Revise and update the current Subarea Plan with amended goals, regulations, and implementation strategies. • Facilitate a Draft Plan workshop with stakeholders such as major landowners, residents, and agency staff. • Develop a Revised Draft Plan, coordinated with the EIS, for County staff to shepherd through the public review process. :111 May 5,2020 Mason County I Be/fair UGA Planned Action EIS and Subarea Plan Update 4 Task 5. Project and Agency Coordination The Consultant will develop a regular communication protocol with the County such as regular conference calls and a milestone schedule updated monthly or as needed. The scope anticipates two County staff workshops, to develop a draft vision and concepts to share with the public and to meet with other agency stakeholders, e.g. WSDOT. It is anticipated that the Mason County Department of Community Services will lead the legislative review process. The Consultant will attend two legislative meetings to present the draft plan such as with the Planning Commission and Board of County Commissioners. One meeting will be the Planned Action Ordinance hearing per Task 3. Anticipated Timeline The Consultant will develop a schedule in Task 1 that allows for community engagement and development of the Subarea Plan Update and Planned Action EIS over an anticipated 12-month process. With a planned action, the County can adopt the subarea plan and associated comprehensive plan amendments out of the normal docket cycle and on its preferred timeline (RCW 36.70a.130(2)(a)(v)). Assumptions ■ Time may be transferred from one task to another due to greater or lesser level of effort, provided that each task shall be completed, and the total budget shall not be exceeded. ■ The County will provide available necessary government documents, studies, site plans, GIS data layers and mapping and other technical information pertaining to the study area, including any appropriate system plans, electronic GIS data, aerial photos, and drawings of areas within the project study area. ■ Research and data collection will be based on readily available secondary sources of information, including reports, inventories, maps and other similar literature from local government and other sources. ■ The Consultant will provide entire document(s), where applicable, in the native compatible formats used to create the document (i.e., MS Word, Excel, InDesign, etc.). ■ The County is responsible for public document reproduction and distribution of all public review and final drafts. ■ The County will provide consolidated review comments on preliminary draft documents. The Consultant's level of effort includes responses to County comments on a preliminary draft and confirmation of revisions in a public review draft prior to publication. ■ The County is responsible for meeting advertisements, room reservations, and other similar logistics. 11E May 5,2020 Mason County I Belfair UGA Planned Action EIS and Subarea Plan Update 5 BERK Consulting MAKERS G;2 Herrera L.Grunter K.Gifford J.Hartmann R.Fornaby Project Support J.Owen I.Crozier P.Lynch S.Herzstein M.Fontaine J.Michaud Total Hours and Engagement 8 Transportation Transportation Estimated Cost Project Manager Deputy PM Lead Analyst Support Analyst Urban Designer Urban Designer Lead Planner Stormwater Lead Sdentht by Task 2020 Hourly Rate $225 $160 $145 $140 $120 $215 $140 $245 $195 $201 $252 Task 1.Project Definition and Engagement Plan ubtotat 10 8 8 20 0 8 8 0, 8 2" -8 $. 80, ` 14 305 . Task 2.Vision,Moping,and Alternatives Subtotal 14 22 20 16 8 12 36 0 ' 8 4 10 150 1 $25,270 Task 3.Environmental Impact Statement Subtotal 40 64 88 0 44 0 0 48 90 50 44 468 -. - $87,708 Task 4.Subarea Plan Update Subtotal'- 12 18 0 16 4 72 110. 4 8 12 12 268 " $47,151 Task 5.Project annd Agency Coordination ;Subtotal - 24 32 4 5 0 4 20 4 24 2 8 127 $23,535 X !Total Estimated Hours - 100 144 120 .57 56 96 174 56 - 138 70 82 1093 { Cost(Hours°Rate) $22,500 $23,040. $17,400 $7 980 ry$6,720' - $20,640 $24,360 $13,720 . 126,910 $14,066 , $20,633. $197,969 Subtotal Consultant Cost $197,969 Project Expenses at—I%of Project Budget $1,980 Estimated Project Total $199,949 EXHIBIT B BERK CONSULTING, INC. STANDARD TERMS AND CONDITIONS 1. DEFINITIONS.As used herein and throughout this application tools,together with any other Agreement: software,or other inventions whether or not patentable,and general non-copyrightable 1.1. Agreement means the entire content concepts such as website design, architecture, of these Standard Terms and Conditions,the layout,models,concepts,ideas,navigational and Agreement Summary to which these Standard functional elements (collectively,"Works"). Terms and Conditions are attached (the "Agreement Summary") and the SOW,together 1.7. Final Work means all content with any exhibits,schedules or attachments developed or created by BERK,or commissioned hereto. by BERK,exclusively for the Project and incorporated into and delivered as part of the 1.2. CLIENT Content means all materials, Final Deliverables,including and by way of information,photography,writings,data and example,not limitation,any and all Works, other content provided by CLIENT for use in the modifications to CLIENT Content, and BERK's preparation of and/or incorporation in the selection,arrangement and coordination of such Deliverables. elements together with CLIENT Content and/or 1.3. Copyrights means the property rights Third Party Materials. in original works of authorship,expressed in a 1.8. Final Deliverables means the final tangible medium of expression,as defined and versions of Deliverables provided by BERK and enforceable under U.S. Copyright Law. accepted by CLIENT. 1.4. Deliverables means the services and 1.9. Preliminary Works means all works content to be delivered by BERK to CLIENT as including, but not limited to,Works developed specified in the SOW and attached to the by BERK and which may or may not be shown Agreement Summary as Exhibit A. and or delivered to CLIENT for consideration but 1.5. BERK Fees means all fees,costs and do not form part of the Final Work. expenses payable to BERK by CLIENT in the 1.10. Project means the scope and amounts and according to the payment schedule purpose of the CLIENT's identified usage of the set forth in the SOW, and all applicable sales, services as described in the SOW. use or value added taxes,even if calculated or assessed subsequent to the payment schedule set 1.11• Services means all services to be forth in the SOW. provided to CLIENT by BERK as described and otherwise further defined in the SOW. 1.6. BERK Tools means all tools developed and/or utilized by BERK in 1.12. SOW means the Scope of Work performing the Services,including without attached as Exhibit A to the Agreement limitation pre-existing and newly developed Summary,as amended or modified in software including source code,excel files,word accordance with this Agreement. documents,cartography, InDesign schematics, 1.13. Third Party Materials means database designs,models in any medium,and proprietary third party materials which are :ill Consulting Agreement 5/6/20 I Mason County I Belfair Urban Growth Area EIS 4 incorporated into the Final Deliverables, allowed by state law) is payable on all overdue including without limitation stock photography, balances. Payments will be credited first to late illustrations,data,fonts or models. payment charges and next to the unpaid 1.14. Trademarks means trade names, balance. CLIENT shall be responsible for all words,symbols,designs,logos or other devices collection or legal fees necessitated by lateness or designs used in the Final Deliverables. or default in payment. BERK reserves the right to withhold delivery and any transfer of ownership 2. APPLICATION OF TERMS. Unless otherwise of any current work if accounts are not current or agreed in writing,these Terms and Conditions overdue invoices are not paid in full.All grants will apply to all work performed for CLIENT by of any license to use or transfer of ownership of BERK,whether pursuant to the SOW or not. any intellectual property rights under this 3. FEES, EXPENSES, COSTS; INVOICES. Agreement are conditioned upon receipt of payment in full which shall be inclusive of any 3.1. Fees. In consideration of the Services and all outstanding BERK Fees, Excess Costs (if to be performed by BERK,CLIENT shall pay to any),and the costs of Changes (if any). BERK the BERK Fees in the amounts and according to the payment schedule set forth in 4. CHANGES. the SOW. 4.1. General Changes. Unless otherwise 3.2. Additional Expenses and Costs. Unless provided in the SOW,and except as otherwise otherwise specified in the SOW,the Project provided for herein,CLIENT shall pay additional pricing includes the BERK Fees and any and all charges for changes ("Changes") requested by additional costs and expenses incurred by BERK CLIENT which are outside the scope of the in connection with this Agreement, including, Services on a time and materials basis,as set without limitation (a) incidental and out-of- forth in an Amendment in substantially the form pocket expenses including but not limited to costs attached to the Agreement as Exhibit C (an for telephone calls, postage,shipping,overnight "Amendment"). Such charges shall be in addition courier,service bureaus,Third Party Materials, to the BERK Fees, despite any maximum budget, printing or typesetting, blueprints,models, contract price or final price identified therein. presentation materials, photocopies,computer BERK may extend or modify any delivery expenses,parking fees and tolls, and taxis at schedule or deadlines in the SOW and cost plus,if applicable,a mileage reimbursement Deliverables as may be required by such at the current federal reimbursable rate; and Changes. (b) travel expenses including transportation, 4.2. Substantive Changes. If CLIENT meals,and lodging;provided however,that if requests or instructs Changes that amount to a any such costs and expenses substantially exceed revision in or near excess of 15% of the time BERK's reasonable estimates as part of the BERK required to produce the Deliverables, and or the Fees in BERK's sole discretion, CLIENT shall be value or scope of the Services, BERK shall be responsible for all such costs and expenses, entitled to submit an Amendment in the form including fees for all services provided to the attached to the Agreement as Exhibit C to CLIENT by BERK that are outside the scope of the CLIENT for written approval.Work shall not services as set forth in the SOW (collectively,the begin on the revised services until a fully signed "Excess Costs"). Such Excess Costs,if any,will be Amendment and,if required, any additional billed to CLIENT separately and CLIENT shall retainer fees are received by BERK. pay BERK for any such Excess Costs in accordance with Section 3.3 below. 4.3. Timing. BERK will prioritize performance of the Services as may be 3.3. Invoices.All invoices are payable necessary or as identified in the SOW,and will within thirty (30) days of receipt.A monthly undertake commercially reasonable efforts to service charge of 1.5% (or the greatest amount perform the Services within the time(s) identified :111 Consulting Agreement 5/6/20 I Mason County I Belfair Urban Growth Area EIS 5 in the SOW. CLIENT agrees to review all pre-existing Trademarks,shall remain Deliverables within the time identified for such the sole property of CLIENT or its reviews and to promptly either, (I) approve the respective suppliers,and CLIENT or its Deliverables in writing or(ii) provide written suppliers shall be the sole owner of all comments and/or corrections sufficient to identify rights in connection therewith. CLIENT the CLIENT's concerns,objections or corrections to hereby grants to BERK a nonexclusive, BERK. BERK shall be entitled to request written nontransferable license to use, reproduce, clarification of any concern,objection or modify,display and publish the CLIENT correction. CLIENT acknowledges and agrees Content solely in connection with BERK's that BERK's ability to meet any and all schedules performance of the Services,preparation is entirely dependent upon CLIENT's prompt of the Deliverables and limited performance of its obligations to provide promotional uses of the Deliverables as materials and written approvals and/or authorized in this Agreement. instructions pursuant to the SOW and that any b. Third Party Materials.All Third Party delays in CLIENT's performance or Changes in the Services or Deliverables requested by Materials are the exclusive property of CLIENT may delay delivery of the Deliverables. their respective owners. BERK shall inform Any such delay caused by CLIENT shall not CLIENT of all Third Party Materials that may be required to perform the Services constitute a breach of any term,condition or or otherwise integrated into the Final BERK's obligations under this Agreement. Work. Under such circumstances BERK 4.4. Quality Assurance and Acceptance. shall inform CLIENT of any need to BERK will exercise commercially reasonable license, at CLIENT's expense, and unless efforts to ensure the quality of the Deliverables otherwise provided for by CLIENT,CLIENT requiring such quality assurance to the best of shall obtain the license(s) necessary to BERK's ability and knowledge,in BERK's sole permit CLIENT's use of the Third Party discretion, and to make all necessary corrections Materials consistent with the usage rights prior to providing Deliverables to CLIENT. granted herein. In the event CLIENT fails CLIENT,within five (5) business days of receipt of to properly secure or otherwise arrange each Deliverable, shall notify BERK,in writing,of for any necessary licenses or instructs the any failure of such Deliverable to comply with use of Third Party Materials,CLIENT the specifications set forth in the SOW,or of any hereby indemnifies,saves and holds other objections,corrections,changes or harmless BERK from any and all amendments CLIENT wishes made to such damages,liabilities,costs, losses or Deliverable.Any such written notice shall be expenses arising out of any claim, sufficient to identify with clarity any objection, demand,or action by a third party correction or change or amendment,and BERK arising out of CLIENT's failure to obtain will undertake to make the same in a copyright,trademark,publicity, privacy, commercially timely manner.Any and all defamation or other releases or objections,corrections,changes or amendments permissions with respect to materials shall be subject to the terms and conditions of this included in the Final Work. Agreement. In the absence of such notice from c. Preliminary Works. BERK retains all rights CLIENT,the Deliverable shall be deemed in and to all Preliminary Works.CLIENT accepted. shall return all Preliminary Works to BERK 5. INTELLECTUAL PROPERTY. within thirty (30) days of completion of 5.1. Rights to Deliverables other than the Services and all rights in and to any Final Work. Preliminary Works shall remain the exclusive property of BERK. a. CLIENT Content. CLIENT Content,including =i" Consulting Agreement 5/6/20 I Mason County I Belfair Urban Growth Area EIS 6 d. Original Works. BERK retains all right and and interest,including without limitation copyright title in and to any original Works and other intellectual property rights,in and to comprising Final Work,including all rights the Final Work. For the avoidance of doubt, to display, license or sell such Works. CLIENT has no rights,or interest in or to the Final CLIENT shall return all original works to Work unless and until BERK receives full payment BERK within thirty (30) days of completion of all fees,costs and expenses due. BERK of the Services. agrees to reasonably cooperate with CLIENT e. Trademarks. Upon completion of the and shall execute any additional documents Services,subject to Sections 5.1(c),5.1(d) reasonably necessary to evidence such and 5.2,and expressly conditioned upon assignment. full payment of all fees,costs and out-of- 6. CLIENT RESPONSIBILITIES. CLIENT pocket expenses due, BERK assigns to acknowledges that it shall be responsible for CLIENT all ownership rights,including any performing the following in a reasonable and copyrights,in and to any artworks or timely manner: (a) coordination of any decision- designs comprising the Works created by making with parties other than BERK; BERK for use by CLIENT as a Trademark. (b) provision of CLIENT Content in a form suitable BERK shall cooperate with CLIENT and for reproduction or incorporation into the shall execute any additional documents Deliverables without further preparation,unless reasonably requested by CLIENT to otherwise expressly provided in the SOW; and evidence such assignment. CLIENT shall (c) final proofreading and in the event that have sole responsibility for ensuring that CLIENT has approved Deliverables but errors, any proposed trademarks or Final such as, by way of example,not limitation, Deliverables intended to be a Trademark typographic errors or misspellings, remain in the are available for use in commerce and finished product,CLIENT shall incur the cost of federal registration and do not otherwise correcting such errors. infringe the rights of any third party. 7. ACCREDITATION/PROMOTIONS.All displays CLIENT hereby indemnifies,saves and or publications of the Deliverables shall bear holds harmless BERK from any and all accreditation and/or copyright notice in BERK's damages,liabilities,costs, losses or name in the form,size and location as expenses arising out of any claim, incorporated by BERK in the Deliverables,or as demand,or action by any third party otherwise directed by BERK. BERK retains the alleging any infringement arising out of right to reproduce,publish and display the CLIENT'S use and/or failure to obtain Deliverables in BERK's portfolios and websites, rights to use or use of the Trademark. and in periodicals and other media or exhibits f. BERK Tools.All BERK Tools are and shall for the purposes of marketing, recognition of remain the exclusive property of BERK. professional excellence or advancement,and to CLIENT may not directly or indirectly,in be credited with authorship of the Deliverables in any form or manner,decompile, reverse connection with such uses. Either party,subject to engineer,create derivative works or the other's reasonable approval,may describe otherwise disassemble or modify any its role in relation to the Project and,if BERK Tools comprising any software, applicable,the services provided to the other works of authorship,models or technology party on its website and in other promotional of BERK. materials,and,if not expressly objected to, 5.2. Rights to Final Work. Upon include a link to the other party's website. completion of the Services,and expressly subject 8. CONFIDENTIAL INFORMATION. Each party to full payment of all fees,costs and expenses acknowledges that in connection with this due, BERK hereby assigns to CLIENT all right,title Agreement it may receive certain confidential or ®i'� Consulting Agreement 5/6/20 I Mason County I Be/fair Urban Growth Area EIS I 7 proprietary technical and business information services offered by BERK. and materials of the other party,including 9.3. BERK Agents. BERK shall be without limitation CLIENT Content,Works, BERK permitted to engage and/or use third party Tools,Third Party Materials and Preliminary service providers as independent contractors in Works ("Confidential Information"). Each party, „ connection with the Services ("Work Agents"). its agents and employees shall hold and maintain Notwithstanding the foregoing, BERK shall remain in strict confidence all Confidential Information, fully responsible for such Work Agents' shall not disclose Confidential Information to any compliance with the various terms and conditions third party,and shall not use any Confidential of this Agreement vis a vis CLIENT,even though Information except as may be necessary to BERK's liability vis vis any Work Agent may be perform its obligations under the SOW and this limited by an agreement between BERK and such Agreement,except as may be required by a Work Agent. court or governmental authority. Notwithstanding the foregoing,Confidential Information shall not 9.4. No Solicitation. During the term of include any information that is in the public this Agreement,and for a period of twelve (12) domain or becomes publicly known through no months after expiration or termination of this fault of the receiving party,or is otherwise Agreement,CLIENT agrees not to solicit, recruit, properly received from a third party without an engage or otherwise employ or retain,on a full- obligation of confidentiality. time, part-time,consulting,work-for-hire or any 9. RELATIONSHIP OF THE PARTIES. other kind of basis,any BERK,employee or Work Agent of BERK,whether or not said person 9.1. Independent Contractor. BERK is an has been assigned to perform tasks under this independent contractor,not an employee of Agreement. In the event such employment, CLIENT or any company affiliated with CLIENT. consultation or work-for-hire event occurs,CLIENT BERK shall provide the Services under the agrees that BERK shall be entitled to an agency general direction of CLIENT,but BERK shall commission to be the greater of,either(a) 25% determine, in BERK's sole discretion,the manner of said person's starting salary with CLIENT,or and means by which the Services are (b) 25% of fees paid to said person in the first accomplished.This Agreement does not create a twelve (12) month period if engaged by CLIENT partnership or joint venture and neither party is as an independent contractor. In the event of authorized to act as agent or bind the other (a) above, payment of the commission will be party except as expressly stated in this due within 30 days of the employment starting Agreement. BERK and the work product or date. In the event of (b) above, payment will be Deliverables prepared by BERK shall not be due at the end of any month during which the deemed a work for hire as that term is defined independent contractor performed services for under Copyright Law.All rights,if any,granted CLIENT. BERK, in the event of nonpayment and in to CLIENT are contractual in nature and are connection with this section,shall be entitled to wholly defined by the express written agreement seek all remedies under law and equity. of the parties and the various terms and 10. WARRANTIES AND REPRESENTATIONS. conditions of this Agreement. 9.2. No Exclusivity.The parties expressly 10.1. By CLIENT. CLIENT represents, warrants and covenants to BERK that(a) CLIENT acknowledge that this Agreement does not owns all right,title,and interest in,or otherwise create an exclusive relationship between the has full right and authority to permit the use of parties. CLIENT is free to engage others to , the CLIENT Content, (b)to the best of CLIENT's perform services of the same or similar nature to knowledge,the CLIENT Content does not infringe those provided by BERK,and BERK shall be the rights of any third party,and use of the entitled to offer and provide services to others, CLIENT Content as well as any Trademarks in solicit other clients and otherwise advertise the connection with the Project does not and will not �i'� Consulting Agreement 5/6/20 I Mason County I Belfair Urban Growth Area EIS p 8 violate the rights of any third parties,(c) CLIENT (b) BERK provides CLIENT with commercially shall comply with the terms and conditions of any reasonable assistance,information and authority licensing agreements which govern the use of necessary to perform CLIENT's obligations under Third Party Materials,and (d) CLIENT shall this section. CLIENT will reimburse the reasonable comply with all laws and regulations as they out-of-pocket expenses incurred by BERK in relate to the Services and Deliverables. providing such assistance. 10.2. By BERK. (a) BERK hereby 11.2. By BERK.Subject to the terms, represents,warrants and covenants to CLIENT conditions,express representations and that BERK will provide the Services identified in warranties provided in this Agreement, BERK the Agreement in a professional and agrees to indemnify,save and hold harmless workmanlike manner and in accordance with all CLIENT from any and all damages,liabilities, reasonable professional standards for such costs, losses or expenses arising out of any services, (b) BERK further represents,warrants finding of fact which is inconsistent with BERK's and covenants to CLIENT that(i) except for Third representations and warranties made herein, Party Materials and CLIENT Content,the Final except in the event any such claims,damages, Deliverables shall be the original work of BERK liabilities,costs, losses or expenses arise directly and/or its independent contractors, (ii) in the as a result of gross negligence or misconduct of event that the Final Deliverables include the work CLIENT provided that(a) CLIENT promptly of independent contractors commissioned for the notifies BERK in writing of the claim; (b) BERK Project by BERK, BERK shall have secure shall have sole control of the defense and all agreements from such contractors granting all related settlement negotiations; and (c) CLIENT necessary rights,title,and interest in and to the shall provide BERK with the assistance, Final Deliverables sufficient for BERK to grant the information and authority necessary to perform intellectual property rights provided in this BERK's obligations under this section. Agreement,and (c) EXCEPT FOR THE EXPRESS Notwithstanding the foregoing, BERK shall have REPRESENTATIONS AND WARRANTIES STATED no obligation to defend or otherwise indemnify IN THIS AGREEMENT, BERK MAKES NO CLIENT for any claim or adverse finding of fact WARRANTIES WHATSOEVER. BERK EXPLICITLY arising out of or due to CLIENT Content,any DISCLAIMS ANY OTHER WARRANTIES OF ANY unauthorized content,improper or illegal use,or KIND, EITHER EXPRESS OR IMPLIED, INCLUDING the failure to update or maintain any BUT NOT LIMITED TO WARRANTIES OF Deliverables provided by BERK. MERCHANTABILITY OR FITNESS FOR A 11.3. Limitation of Liability.THE SERVICES PARTICULAR PURPOSE OR COMPLIANCE WITH AND THE WORK PRODUCT OF BERK ARE SOLD LAWS OR GOVERNMENT RULES OR "AS IS." IN ALL CIRCUMSTANCES,THE REGULATIONS APPLICABLE TO THE PROJECT. MAXIMUM LIABILITY OF BERK,ITS DIRECTORS, 11. INDEMNIFICATION/LIABILITY. OFFICERS, EMPLOYEES,WORK AGENTS AND 11.1. By CLIENT.CLIENT agrees to AFFILIATES ("BERK PARTIES"),TO CLIENT FOR indemnify,save and hold harmless BERK from DAMAGES FOR ANY AND ALL CAUSES any and all damages, liabilities,costs, losses or WHATSOEVER,AND CLIENT'S MAXIMUM expenses arising out of any claim,demand,or REMEDY, REGARDLESS OF THE FORM OF action by a third party arising out of any breach ACTION,WHETHER IN CONTRACT,TORT OR of CLIENT's responsibilities or obligations, OTHERWISE,SHALL BE LIMITED TO THE FULL representations or warranties under this AMOUNT OF THE BERK FEES. IN NO EVENT Agreement. Under such circumstances BERK shall SHALL BERK BE LIABLE FOR ANY LOST DATA OR promptly notify CLIENT in writing of any claim or CONTENT, LOST PROFITS, BUSINESS suit; (a) CLIENT has sole control of the defense INTERRUPTION OR FOR ANY INDIRECT, and all related settlement negotiations; and INCIDENTAL,SPECIAL,CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING :All Consulting Agreement 5/6/20 I Mason County I Be/fair Urban Growth Area EIS 9 OUT OF OR RELATING TO THE MATERIALS OR obligations of each party under this Agreement, THE SERVICES PROVIDED BY BERK,EVEN IF BERK exclusive of the Services,shall survive. HAS BEEN ADVISED OF THE POSSIBILITY OF 13. GENERAL. SUCH DAMAGES,AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY 13.1. Modification/Waiver.This LIMITED REMEDY. Agreement may be modified by the parties.Any 12. TERM AND TERMINATION. modification of this Agreement must be in writing, except that BERK's invoices may include,and 12.1. This Agreement shall commence upon CLIENT shall pay,expenses or costs that CLIENT the Effective Date and shall remain effective until authorizes by electronic mail in cases of extreme the Services are completed and delivered. time sensitivity. Failure by either party to enforce 12.2. This Agreement may be terminated any right or seek to remedy any breach under at any time by either party effective this Agreement shall not be construed as a immediately upon notice,or the mutual waiver of such rights nor shall a waiver by either agreement of the parties,or if any party: party of default in one or more instances be (a) becomes insolvent,files a petition in construed as constituting a continuing waiver or bankruptcy,makes an assignment for the benefit as a waiver of any other breach. of its creditors;or (b) breaches any of its 13.2. Notices.All notices to be given material responsibilities or obligations under this hereunder shall be transmitted in writing either Agreement,which breach is not remedied within by facsimile or electronic mail with return ten (10) days from receipt of written notice of confirmation of receipt or by certified or such breach. registered mail, return receipt requested,and 12.3. In the event of termination, BERK shall be sent to the addresses identified in the shall be compensated for the Services performed Agreement Summary,unless notification of through the date of termination in the amount of change of address is given in writing. Notice (a) any advance payment, (b) a prorated shall be effective upon receipt or in the case of portion of the BERK Fees due,or (c) hourly fees, fax or email,upon confirmation of receipt. if any are specified on the SOW,for work 13.3. No Assignment. Neither party may performed by BERK or BERK's agents as of the assign,whether in writing or orally,or encumber date of termination,whichever is greater; and its rights or obligations under this Agreement or CLIENT shall pay all Berk Fees and Excess Costs permit the same to be transferred,assigned or (if any),and the costs of Changes (if any) encumbered by operation of law or otherwise, incurred through and up to,the date of without the prior written consent of the other cancellation. party. 12.4. In the event of termination by CLIENT 13.4. Force Majeure. BERK shall not be and upon full payment of compensation as deemed in breach of this Agreement if BERK is provided herein, BERK grants to CLIENT such right unable to complete the Services or any portion and title with respect to those Deliverables thereof by reason of fire, earthquake,terrorism, provided to,and accepted by CLIENT as of the labor dispute,act of God or public enemy, date of termination,provided, however,that such death,illness or incapacity of BERK or any local, Deliverables are indicated to CLIENT by BERK in state,federal,national or international law, writing. governmental order or regulation or any other 12.5. Upon expiration or termination of event beyond BERK's control (collectively,"Force this Agreement: (a) each party shall return or,at Majeure Event"). Upon occurrence of any Force the disclosing party's request, destroy the Majeure Event, BERK shall give notice to CLIENT Confidential Information of the other party,and of its inability to perform or of delay in (b) other than as provided herein,all rights and completing the Services and shall propose :111 Consulting Agreement 5/6/20 I Mason County I Belfair Urban Growth Area EIS 10 revisions to the schedule for completion of the convenience and reference only and shall not Services. affect the scope,meaning,intent or 13.5. Governing Law and Dispute interpretation of the provisions of this Agreement Resolution.The formation,construction, nor shall such headings otherwise be given any performance and enforcement of this Agreement legal effect. shall be in accordance with the laws of the 13.8. Integration.This Agreement United States and the state of Washington comprises the entire understanding of the parties without regard to its conflict of law provisions or hereto on the subject matter herein contained, the conflict of law provisions of any other and supersedes and merges all prior and jurisdiction. In the event of a dispute arising out contemporaneous agreements,understandings of this Agreement,the parties agree to attempt and discussions between the parties relating to to resolve any dispute by negotiation between the subject matter of this Agreement. In the event the parties. If they are unable to resolve the of a conflict between the Agreement Summary or dispute,either party may commence mediation the SOW and these Standard Terms and and/or binding arbitration through the American Conditions,the terms of the Agreement Summary Arbitration Association,or other forum mutually or the SOW,as applicable,shall control. agreed to by the parties.The prevailing party in Supplemental,additional or complementary any dispute resolved by binding arbitration or terms shall not be deemed to conflict for litigation shall be entitled to recover its purposes of this Section 13.8.This Agreement attorneys'fees and costs. In all other comprises the Agreement Summary,the Standard circumstances,the parties specifically consent to Terms and Conditions,the SOW, and all the local,state and federal courts located in King attachments and exhibits thereto. County,State of Washington.The parties hereby Agreement Summary or the SOW, as applicable, waive any jurisdictional or venue defenses shall control. Supplemental, additional or available to them and further consent to service complementary terms shall not be deemed to of process by mail. CLIENT acknowledges that conflict for purposes of this Section 6.12. BERK will have no adequate remedy at law in the event CLIENT uses the Deliverables in any way not permitted hereunder,and hereby agrees that BERK shall be entitled to equitable relief by way of temporary and permanent injunction,and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein. 13.6. Severability.Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law,but if any provision of this Agreement is held invalid or unenforceable,the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. 13.7. Headings.The numbering and captions of the various sections are solely for 111 Consulting Agreement 5/6/20 I Mason County I Belfair Urban Growth Area EIS 11 EXHIBIT C • FORM OF AMENDMENT PROJECT: Name/Number Amendment Number: Amendment Effective Date: This Amendment (this "Amendment") is incorporated by reference into and made a part of the Consulting Services Agreement dated as of by and between ("CLIENT") and BERK Consulting, Inc. ("BERK") including the attachments, schedules and exhibits attached thereto (the "Agreement"). Capitalized terms used but not defined herein have the meanings assigned to them under the Agreement. The parties to the Agreement agree to make the following additions or modifications to the SOW as follows: [Describe changes] Except as modified by this and any previously issued Amendment, all other terms and conditions of the Agreement remain in full force and effect. This Amendment may be executed in counterparts, each of which is deemed an original, but all of which constitutes one and the same agreement. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall be as effective as delivery of an original signed counterpart of this Amendment. By their execution below, the parties hereto have agreed to all of the terms and conditions of this Amendment effective as of the Amendment Effective Date listed above, and each signatory represents that it has the full authority to accept this Amendment, and to bind her/his respective party to all of the terms and conditions herein. CLIENT BERK CONSULTING, INC. By: By: Title: Title: Date: Date: :111 12