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AGW CONSULTANTS TERMS AND CONDITIONS

TIME AND MATERIALS AGREEMENT  

Effective: March 30, 1999 

SCOPE OF SERVICES - AGW Consultants, referred to herein as "AGW", will perform the services necessary to the completion of technical studies and any and all activities necessary to complete projects undertaken by AGW for and on behalf of Client and as approved by AGW and Client, referred to herein as "Services" in accordance with the following "Commercial Terms".

BILLING RATES - Charges for all professional, technical and administrative personnel directly charging time to the project will be calculated and billed on the basis of the following staff category hourly "Billing Rates". Billing Rates include fringe benefits, burden and fee.

Staff Category Rate / Hour Skill Description
P1 $ 25.00 Clerk -- filing and non-skilled activities, no experience.
P2 $ 35.00 Secretarial -- word processing and computer skills.
P3 $ 50.00 Drafting -- AutoCad  or GIS experience.
P4 $ 45.00 Field Technician -- high school or vocational school graduate, or equivalent, with technical experience.
P5 $ 50.00 Administrative -- manage office activities, advanced computer skills.
P6 $ 60.00 Scientist / Historian I -- science/engineering/history degree, and/or 2 years experience; support activities.
P7 $ 70.00 Scientist / Historian II -- hydrogeologist/engineer/historian.  Degree and/or 3-5 years experience; supervise technicians, modeling and data analysis.
P8 $ 80.00 Scientist / Historian III -- graduate/engineering/history degree and/or 6-10 years experience; assists in senior technical activities, and interface with clients and agencies.
P9 $ 90.00 Senior Scientist/Engineer/Project Manager -- graduate/engineering degree plus 3 or more years of experience.  Oversees all hydrogeologic activities, modeling and analysis.  Interfaces with clients regarding contracts and site problems.
P10 $ 100.00 Principal Investigator I -- graduate or engineering degree plus 5 or more years experience, or at least 10 years experience; provide decision-making of company, and development of technical and budgetary requests for proposals.
P11 $ 110.00 Senior Project Manager/Hydrogeologist -- graduate or engineering degree plus 11-15 years experience;  responsible for executive and technical leadership of all company projects, RFPs, and client interface.
P12 $ 150.00 Company Management/Corporate Executive -- Senior Scientist/Engineer with more than 15 years experience.

All staff personnel have been classified in the above staff categories based on discipline skills, education and experience level.  All travel, to a maximum of eight hours per day, will be charged at the Billing Rates.  Billing Rates are based on a forty-hour work week. Overtime hours for exempt employees (non-hourly) will be charged at the standard Billing Rate.  Overtime hours, authorized by Client, of non-exempt (hourly-non-supervisory) employees are charged at 130%. of the Billing Rate.

EXPERT TESTIMONY - Expert witness testimony or participation at hearings or depositions, including necessary preparation time will be charged at 150% of the Billing Rate. 

REIMBURSABLE COSTS - Reimbursable Costs are all costs and expenses incurred by AGW directly attributable to the performance of Services.  Reimbursable Costs include shipping charges, printing and reproduction, special fees, permits, special insurance and licenses, subcontracts, laboratory services, outside computer time, and miscellaneous materials.  Travel and travel-related expense and equipment purchased for a project with advance authorization are computed on the basis of actual cost plus ten percent (15%). 

INDIRECT COSTS - Indirect Costs are calculated as ten percent (15%) of "Reimbursable Costs". 

Charges for AGW's inventory supplies, usage of AGW's computers and lease of AGW-owned equipment carry no override.

INVOICING AND PAYMENT - Invoices will be issued monthly itemizing the staff categories worked and the Other Direct Costs.  Supporting documentation will be provided upon Client's request and at Client's expense, to include associated labor and copying costs.  Payments are due at the address appearing on the invoice on receipt of the invoice.  In addition, AGW may, after giving seven (7) days written notice to Client or its successors or assigns, suspend services without liability until the Client or its successors or assigns has paid in full all amounts due AGW on account of Services rendered and expenses incurred including interest on past due invoices at the rate of 1-1/2% per month (18% per annum).

ESTIMATES OF COSTS AND SCHEDULES - AGW's estimates of costs and schedules are for Client's budget and planning assistance.  Cost and schedule estimates are based on our best judgment of the requirements known at the time of the proposal and can be influenced favorably or adversely by Client needs and unforeseen circumstances.  AGW will endeavor to perform the Services and accomplish the objectives within the estimated costs and schedule and notify the Client or its successors or assigns in advance of material variances.  In such event, the Client may wish to (1) redefine the scope of Services in order to accomplish Client's budget objectives, or (2) terminate Services at a specific expenditure level. If option (2) is chosen, AGW will turn over data, results and materials completed at the authorized level without further obligation or liability to either party except payment for Services performed. 

AGREEMENT - The Commercial Terms and the attached General Conditions (AGW Form 102) govern the performance of the services and rights and obligations of the parties. 

 


COMMERCIAL TERMS 

GENERAL CONDITIONS

Effective: March 20, 1999

ACCESS - Client grants AGW Consultants, referred to herein as "AGW", and its subcontractor's authority to enter the property upon which AGW's Services are to be performed ("Site"). AGW will take reasonable precautions to minimize any damage to the Site and adjoining properties and any cost of correction, repair or replacement shall be borne by Client or its successors or assigns. 

CLIENT INFORMATION - Client warrants the completeness and accuracy of information supplied by it to AGW and acknowledges that AGW is relying upon such information without verification by AGW of its completeness and accuracy. Client or its successors or assigns shall immediately notify AGW in writing of any information or data in the possession of or known to Client relating to subsurface conditions affecting the Site. 

Client agrees to advise AGW in writing prior to the commencement of Services of the existence of dust, fumes, gas, noise, vibrations or other particulate or nonparticulate matter at or near the Site which may create a potential health hazard or nuisance to anyone working within the area and the existence and identity of any known hazardous substance, hazardous condition or waste materials.  In the event any such conditions are encountered during the course of AGW's Services, Client agrees that the Services, schedule and fees may be adjusted. 

STANDARD OF SERVICES AND WARRANTY - AGW shall perform its Services in accordance with generally accepted engineering and scientific practice in effect at the time Services are rendered and adopted by geoscience firms performing services of a similar nature. AGW shall not be required to utilize its proprietary Thermonic, Zeta-SP, or FracRad technologies without separate agreement.

Client acknowledges that the Services may involve the use of tests, calculations, analyses and procedures which are in constant state of change and refinement and that changes in methods and procedures have been made, are now being made, and are expected to be made in the future. Client recognizes that the state or practice is changing and evolving and that standards and methods existing at the present time may change as knowledge increases and the state of the practice continues to improve. Client recognizes that common exploration methods used for investigations, such as drilling, boring or excavating trenches involve an inherent risk to the property and adjoining properties. In the event AGW is to conduct test borings or establish monitoring and observation wells for whatever purpose, Client acknowledges that the accuracy of said test borings and wells relates only to the specific location of the boring or the well and that the nature of many Sites is such that differing subsurface soil characteristics can be experienced within a small distance and that greater accuracy may be obtained when the number of test borings or monitoring wells are increased. 

AGW warrants that, if any of its completed Services fail to conform to the above professional responsibility standard, AGW will, at its expense, perform corrective Services of the type originally performed as may be required to correct any such defective Services of which AGW is notified by Client or its successors or assigns in writing within six (6) months of the completion of Services. AGW's total aggregate responsibility for defective Services shall not exceed the lesser of 50,000 USD or one hundred percent (100 %) of the amount paid for Services. AGW shall, for the protection of Client, request from all vendors and subcontractors from which AGW procures equipment, materials or services, guarantees which will be made available to Client or its successor or assigns to the full extent of the terms thereof. AGW's responsibility with respect to such equipment, services and materials shall be limited to the assignment of such guarantees and rendering assistance to Client in enforcing the same. 

Except as provided in this section, AGW makes no other warranty, express or implied, and AGW shall have no other liability to Client for defective Services, whether caused by error, omission, negligence or otherwise. 

GENERAL INFORMATION - AGW will not knowingly disclose to others any confidential information furnished by the Client in connection with this project. Any information which the Client or AGW intends to be covered by this Paragraph shall be clearly marked "Confidential", These restrictions shall not apply to information that: (i) AGW had in its possession prior to disclosure by the Client, (ii) becomes public knowledge through no fault of AGW, (iii) AGW lawfully acquires from a party not under any obligation of confidentiality to the Client, or (iv) is independently developed by AGW.  AGW will not publish, in any technical articles or otherwise, information obtained from the Services in a manner that would be identifiable to the Client's project without prior consent. 

Client or its successor or assigns agrees that AGW may use and publish Client's name and a general description of the Services provided to Client by AGW in describing AGW's experience and qualifications to other clients or potential clients. 

USAGE OF DATA AND DOCUMENTS - "Information" includes all reports, field data, notes and laboratory test data prepared by AGW. This Information shall be considered instruments of service and AGW shall retain a property interest. Client or its successors or assigns shall have the right to make and retain copies and use all information, provided however, the information shall not be used or relied upon by any party other than Client or its successors or assigns, and such use shall be limited to the particular Site and project for which the information is provided. Any reuse on other projects or locations without the written consent by AGW or use by any party other than Client or its successor or assigns will be at Client's sole risk and without liability to AGW and the Client or its successors or assigns shall indemnify and defend AGW from any claims, losses or liabilities arising therefrom. 

INSURANCE AND INDEMNITY - AGW shall maintain Workers' Compensation and Employer's Liability Insurance in accordance with requirements of the jurisdiction in which the Services are being performed, comprehensive liability insurance (including contractual and contractor's protective liability coverage) with combined single limit of $1,000,000 per occurrence for bodily injury and property damage and automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage.

AGW shall indemnify Client, its officers, directors, agents and employees against claims, demands, and causes of action including expenses of defense for personal injury, disease or death, and loss or damage of property (other than property of Client for which Client or its successors or assigns hereby assumes responsibility) arising during the performance of Services and caused by the sole negligence or willful misconduct of AGW. AGW's aggregate liability shall not exceed the recoveries under the types and limits of insurance provided by AGW hereunder and Client or its successors or assigns agrees to release, defend and indemnify AGW from and against all further liability arising from such Services. 

Client or its successors or assigns shall defend and save harmless AGW, its trustees, certificate holders, beneficiaries, officers, directors, agents and employees from all claims, demands and causes of action including expenses of defense for personal injury, disease or death, and loss or damage of property (including personnel of Client or its successors or assigns, AGW or subcontractors performing work hereunder) and air, subsurface or ground pollution or environmental impairment arising out of or in any manner connected with or related to the performance of Services, except where such injury, loss or damage shall have been caused by the sole negligence or willful misconduct of AGW, it being the intention of the parties that Client assume any liability alleged to have resulted from AGW's joint or concurrent negligence. Client or its successors or assigns agrees to be responsible for the removal and disposal of any hazardous substance or waste uncovered as a result of the Services including drilling mud, if any, used in site investigation which may become contaminated as a result of said investigation.

REMEDIES - Neither party nor their affiliated companies, nor the trustees, directors, officers, agents, employees, contractors, shareholders, certificate holders, or beneficiaries of any of the foregoing, shall be liable to the other in any action or claim for consequential or special damages, loss of profits, loss of opportunity, loss of product, or loss of use and any protection against liability for losses or damages afforded any individual or entity by these terms shall apply whether the action in which recovery of damages is sought is based on contract, tort (including sole, concurrent or other negligence and strict liability of any protected individual or entity), statute or otherwise. To the extent permitted by law, any statutory remedies which are inconsistent with these terms are waived. 

Client or its successors or assigns will hold AGW and its trustees, officers, employees, certificate holders, beneficiaries and clients harmless and indemnify them for any action instituted as a consequence of any claim for damages including but not necessarily limited to reasonable attorney's fees, expert fee(s), and any other costs. 

Neither the Trustee(s), officers, employees, certificate holders, beneficiaries nor clients of AGW shall be held to any personal liability by reason of the performances of services hereunder and that Client or its successors or assigns waives all rights and privileges against AGW, its employees, officers, certificate holders, beneficiaries or clients. 

In the event of any court ordered judgment adverse to AGW, Client or its successors or assigns agrees to look only to the assets of AGW for satisfaction thereof.

RELATIONSHIP OF PARTIES - AGW's Services are performed as an independent contractor and not as the Client's agent, partner or joint venture. 

FORCE MAJEURE - AGW will have no liability for any failure to perform or delay in performance due to any circumstances beyond its reasonable control, including, but not limited to, strikes, riots, wars, fires, flood, explosion, acts of nature, acts of governments, labor disturbances, delays in transportation or inability to obtain material or equipment. 

ENTIRE AGREEMENT - The Client's engagement of AGW represents Client's acceptance of AGW's Commercial Terms and these General Conditions, which constitute the entire understanding and supersede any prior or subsequent communications, representations or agreements of the parties, whether oral or written, including Client's additional or different terms and conditions that may be contained in any purchase order, work order, invoice, acknowledgment form, manifest or other document forwarded by the Client to AGW to which notice of objection is hereby given. If any portion of the Commercial Terms of these General Conditions are held invalid or unenforceable, any remaining portion shall continue in full force and effect. There shall be no assignment of the rights or obligations by either party and any assignment shall render the duties and obligations of the other party null and void. 

AGW Form 102 (3/99)

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