Design. Build. Project Management.
Terms and Conditions
These terms and conditions are subject to change without notice to you and you agree that any such change shall be binding upon you.
THEREFORE, the parties mutually agree as follows:
The relationship of Aspen to CLIENT is that of an independent contractor and in accordance therewith, Aspen covenants and agrees to conduct itself consistent with such status and that neither it nor its employees, officers or agents will claim to be an officer, employee, or agent of CLIENT, or make any claim, demand or application, to or for any rights or privileges applicable to any officer or employee of same, including, but not limited to worker’s compensation coverage, unemployment insurance benefits, social security coverage, or retirement membership or credit.
Aspen shall perform its work in a good and workmanlike manner and assumes the risk in performing under this Agreement. Aspen shall make a careful examination of the site, plans, specifications, and all conditions affecting the work, and any failure to make such examination will not be a valid excuse for failure to do the work or be used by Aspen as a basis for any claim for extra compensation or extension of time. Aspen acknowledges having visited the site and shall promptly give CLIENT a written notice of any physical condition discovered differing materially from that indicated in this Agreement or unknown and of an unusual nature differing materially from that ordinarily encountered and generally recognized as adhering to this type of work. The network shall operate in accordance with the expectations of the CLIENT as outlined in Exhibit A, hereto, and approved by the CLIENT Board. (Project scope does not include last-mile customer installations from MST to the premise. Defects in the equipment, hardware, software, brackets, cables, etc. are covered by the manufacturer’s warranty.)
All equipment and materials purchased on behalf of CLIENT shall be registered and licensed in CLIENT’s name, where applicable; all warranties shall be in CLIENT’s name and warranty documents shall be turned over to CLIENT upon completion of construction.
CLIENT shall have full administrator access across all equipment for the independent management of the system. CLIENT shall allow access to Aspen to allow Aspen to fulfill any contractual obligations between CLIENT and Aspen. In addition, CLIENT shall have a Network Management System (NMS) under the control of CLIENT.
CLIENT may grant usage of NMS to Aspen to meet other contractual obligations with CLIENT.
Aspen shall defend, indemnify and save harmless CLIENT and the City, its officers, and employees, from and against any and all claims, liabilities, losses, damages, reasonable actual attorney's fees, and settlement expenses for injury to any person or death, and damage to, or loss of any property resulting or arising out of any act, omission, or negligence of Aspen or its employees, agents or subcontractors in connection with performing this Agreement. CLIENT shall not be indemnified against liability for damages arising out of bodily injury or damage to property where the entire amount of such damage, whether recoverable or not, is caused by or resulted from the sole negligence of CLIENT, its officers, or employees. This indemnification agreement shall not be limited by reason of any insurance coverage.
Aspen shall acquire and maintain comprehensive general liability insurance coverage, and comprehensive automobile liability insurance coverage. The limits and deductible shall be as follows:
Comprehensive General Liability insurance with a $2,000,000 minimum in coverage.
Comprehensive Automobile Liability insurance with a $1,000.000 minimum in coverage.
Aspen agrees not to change such insurance and agrees to maintain such insurance throughout the period of performance of this Agreement. Aspen will, within two weeks of the execution of this Agreement, provide a certificate of insurance to the CLIENT Director. Such certificate(s) shall name the City as an additional insured. Such certificate(s) shall provide that coverage afforded under the policies will not be canceled or allowed to expire until at least 30 days prior written notice has been given to the City.
The parties shall maintain suitable workers’ compensation insurance pursuant to Michigan law and Aspen shall provide a certificate of insurance or copy of the state approval for self-insurance to the CLIENT Director within two weeks of the execution of this Agreement.
Compliance with Regulations.
Aspen shall comply with all applicable statutes, rules, and regulations of all Federal, State, and local governments and agencies having jurisdiction and bears the risk of compliance with any such authorities or changes thereto.
Standard of Conduct.
Aspen shall render all services under this Agreement according to generally accepted professional practices for the intended use of the work or project.
CLIENT shall provide Aspen with all information currently available to it upon request of Aspen. CLIENT’s Director, or such other person as the CLIENT Director shall designate, shall be CLIENT’s representative for purposes of this Agreement.
The parties agree not to discriminate against an employee or applicant for employment with respect to hiring, tenure, terms, conditions, or privileges of employment or a matter directly or indirectly related to employment because of race, color, religion, national origin, age, sex, height, weight, marital status, physical or mental disability, family status, sexual orientation, or gender identity. A breach of this covenant may be regarded as a material breach of this Agreement.
Prohibition Against Assignment.
This Agreement is intended to secure the service of Aspen because of its ability and reputation and none of Aspen’s duties under the Agreement shall be assigned, subcontracted, or transferred without the prior written consent of CLIENT. Any assignment, subcontract, or transfer of Aspen’s duties under this Agreement must be in writing.
Aspen agrees that despite any subcontract entered into by Aspen for the execution of activities or provision of services related to the completion of this project, Aspen shall be solely responsible for carrying out its duties on the project pursuant to this Agreement. Aspen shall specify in any such subcontract that the subcontractor shall be bound by this Agreement and any other requirements applicable to Aspen in the conduct of the project unless CLIENT and Aspen agree to modification in a particular case. Aspen shall not subcontract its obligations under this Agreement unless agreed upon in writing by CLIENT.
The interest of Contractor.
Aspen represents that its officers and employees have no interest and covenant that they will not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of Aspen’s services and duties hereunder. Aspen further covenants that in the performance of the Agreement, no person having any such interest shall be employed. Aspen further covenants that neither it nor any of its principals are in default to the City or the CLIENT.
Covenant Against Commissions and Contingent Fees.
Aspen warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon any agreement or understanding for a commission, percentage, brokerage, or contingent fee. For breach or violation of this warranty, CLIENT shall have the right to annul this Agreement without liability, or in its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
Qualifications of the Contractor.
Aspen specifically represents and agrees that its officers, employees, agents, and consultants have and shall possess the experience, knowledge, and competence necessary to qualify them individually for the particular duties they perform hereunder.
Whenever it is provided in this Agreement that a notice or other communication is to be given or directed to either party, the same shall be given or directed to the respective party at its address as specified in the Agreement:
Address for receipt of notices:
Address for ASPEN’s receipt of notices:
|Aspen Wireless Technologies, Inc.|
|Glen Arbor, MI 49636|
or at such other address as either party may, from time to time, designate by written notice to the other.
This Agreement may be modified from time to time, but such modifications shall be in writing and signed by both parties.
Termination for Fault.
By CLIENT if CLIENT determines that Aspen has failed to perform or will fail to perform all or any part of the services, obligations, or duties required by this Agreement, CLIENT may terminate or suspend this Agreement in whole or in part upon written notice to Aspen specifying the portions of the Agreement and in the case of suspension shall specify a reasonable period not more than thirty (30) days nor less than fifteen (15) days from receipt of the notice, during which time Aspen shall correct the violations referred to in the notice. If Aspen does not correct the violations during the period provided for in the notice, this Agreement shall be terminated upon expiration of such time.
By Aspen if CLIENT demands that Aspen furnish or perform services contrary to Aspen’s responsibilities as a professional or if Aspen determines that there are undisclosed Constituents of Concern (defined at Paragraph 34 hereof), then Aspen shall give 7 days’ notice to CLIENT and thereafter may terminate its performance unless CLIENT begins to correct its substantial failure to perform within 7 days of receipt of notice of termination pursuant to this subsection, and completes its cure within 30 days following receipt of the notice. However, if CPBU cannot reasonably cure its substantial failure within such 30 day period, and if it has diligently worked to cure the same, and continues diligently to cure, then the cure period shall extend up to 60 days from receipt of the notice.
By Aspen if CLIENT fails to pay invoices within 50 days of receipt, then on 7 days’ notice to CPBU, Aspen may suspend services until Aspen has been paid in full all amounts due.
If because of Force Majeure, either party is unable to carry out any of its obligations under this agreement (other than obligations of such party to pay or expend money for or in connection with the performance of this Agreement), and if such party promptly gives to the other party concerned written notice of such force majeure, then the obligations of the party giving such notice will be suspended to the extent made necessary by such force majeure and during its continuance, provided the effect of such force majeure is eliminated insofar as possible with all reasonable dispatch. “Force Majeure” means unforeseeable events beyond a party’s reasonable control and without such party’s fault or negligence, including, but not limited to, acts of God, acts of public enemy, acts of the federal government, acts of another party to this Agreement, fire, flood, inclement weather, epidemic, quarantine restrictions, strikes and embargoes, labor disturbances, the unavailability of raw materials, legislation, charter amendments or referendum, orders or acts of civil or military authority, injunctions, or other causes of a similar nature which wholly or substantially prevent performance. If the suspension of work lasts for more than 30 days, CLIENT may terminate this Agreement.
Delay of Performance and Payment.
If Aspen is delayed in the completion of the work due to Force Majeure, or otherwise, the time for completion may be extended for a period determined by CLIENT to be equivalent to the time of such delay.
Termination Due to Threat or Institution of Legal Action Against the City or the CLIENT.
This Agreement may be terminated by the CLIENT if the City or the CLIENT receives notice or information of a present or threatened legal action the purpose of which is to terminate the Project or prohibit the CLIENT’s intended funding for the Project. If the CLIENT receives such notice, it may terminate the Project and this Agreement, effective immediately by giving notice to Aspen in compliance with Paragraph 20 of this Agreement.
In the event CLIENT exercises the right to terminate pursuant to this Paragraph, Aspen shall be entitled to payment for its services actually performed up to the date of termination, but in no event will Aspen be entitled to contract damages in excess of:
costs incurred for work completed and accepted at the time of the termination;
costs that are considered allowable and reasonable;
profit on the above costs incurred; and
close-out and settlement proposal costs associated with preparing a final cost proposal but in no event shall the CLIENT’s obligation be more than the full contract amount.
If at the time of termination pursuant to this paragraph, Aspen has received payments from the CLIENT pursuant to Schedule B that provides it with more compensation than is due for the services Aspen has provided to that point based on the percentage of the project completed plus its allowable and reasonable out of pocket costs, then Aspen shall refund the overpayment to the CLIENT. If at the time of termination pursuant to this paragraph, Aspen has provided a greater percentage of the services due under this agreement than CLIENT has paid for pursuant to Schedule B, then CLIENT shall complete payment for the services provided and costs incurred.
This Agreement shall be governed by the laws of the State of Michigan, both to interpretation and performance. This Agreement was drafted under the joint direction of the parties. The pronouns and relative words used herein are written in neuter and singular. However, if more than one person or entity joins in this Agreement on behalf of Aspen, or if a person of masculine or feminine gender joins in this Agreement on behalf of Aspen, such words shall be interpreted to be in the plural, masculine or feminine as the sense requires.
Any and all suits for any and every breach of this Agreement may be instituted and maintained in any court of competent jurisdiction in the County of Leelanau, State of Michigan.
This Agreement, together with all items incorporated herein by reference, constitutes the entire agreement of the parties and there are no valid promises, conditions, or understandings which are not contained herein. The parties acknowledge that the Professional Services Agreement signed _______________, has been fully completed and paid. It is understood that should Aspen recommend further work concerning the project, the Owner is under no obligation to engage Aspen in such work.
The parties do not intend for there to be any third-party beneficiaries to this Agreement and neither CLIENT nor Aspen shall be construed to owe any duty to any third party under this Agreement.
No Joint Venture or Partnership.
This Agreement does not and is not intended to create a joint venture or partnership between the parties. The rights and obligations of the parties are entirely contained within this Agreement.
Authority to Execute.
The parties agree that the signatories appearing below have the authority and are duly authorized to execute this Agreement on behalf of the party to the Agreement.
Aspen’s opinions (if any) of probable costs are made on the basis of Aspen’s experience and general familiarity with the construction industry. However, because Aspen has no control over the costs of labor, materials, equipment, or services furnished by others, or over contractors’ methods of determining prices, or over competitive bidding or market conditions, Aspen cannot and does not guarantee that proposals, bids, or actual construction costs will not vary from opinions of probable construction costs prepared by Aspen. If CLIENT requires greater assurance as to probable construction costs, then CLIENT shall obtain an independent cost estimate. However, if bids are received that exceed Aspen’s opinion of probable costs by more than 10%, then CLIENT may give notice of termination of this Agreement and shall be obligated to pay Aspen only as set forth in Paragraph 25.
If any party has a dispute with another regarding the meaning, operation, or enforcement of any provision of this Agreement, the disputing parties agree to meet and confer to negotiate a resolution of the dispute in good faith during the 30 days after notice of a dispute from either of them. They further agree as follows:
Mediation. If they are unable to resolve the dispute themselves and before formally instituting any other dispute mechanism, they shall utilize the services of a mutually acceptable neutral mediator, who meets the qualifications of MCR 2.411, to bring them together in at least one mediation session.
Venue. All meetings, hearings, and actions to resolve the dispute shall be in Leelanau County, State of Michigan.
Notice. Written notice of a dispute shall be given to the other parties not later than 90 days after the occurrence giving rise to the dispute becomes known or should have become known. Negotiations and mediation shall occur within 60 days after such notice.
CLIENT shall provide the necessary qualified resources for the project to complete the negotiation and closure of required agreements, provide staging facility access, fiber network access, and configuration, head-end facility access, and configuration, and outside plant construction of the project per the project plan with any deficiencies in available resources identified and mitigated by CLIENT to not delay the project.
Constituents of Concern.
Asbestos, petroleum, radioactive material, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that is or becomes listed, regulated or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§5101 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. (“RCRA”); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; or (g) any other federal, State, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material.