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HomeMy WebLinkAboutR-1997-138 Riverside Shopping Mall• RESOLUTION NO. R-97- 138 A RESOLUTION authorizing and directing the City Manager and the City Clerk of the City of Yakima to execute a professional services contract with Kittelson & Associates, Inc., a transportation planning and traffic engineering firm, to provide an independent, third -party review of a traffic study proposed as part of the environmental study for the Riverside Shopping Mall. WHEREAS, the City has duties under the State Environmental Policy Act to consider the environmental effects of the proposed rezone for the Riverside Shopping Mall in the vicinity of North 16th Avenue and State Route 12; and WHEREAS, the rezone applicant has submitted materials including a traffic study upon which the Environmental Impact Statement to be issued by the City may be based; and WHEREAS, it is in the best interests of the City that an independent third party review the traffic study submitted by the rezone applicant in order to assist the City in determining the traffic impacts of the proposed rezone and regional shopping mall; and WHEREAS, it is in the best interest of the City of Yakima to enter into a contract with Kittelson & Associates, Inc., for professional services in accordance with the terms and conditions of the attached contract; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and the City Clerk of the City of Yakima are hereby authorized and directed to execute the attached and incorporated contract with Kittelson & Associates, Inc., for professional services for an independent third party review of the applicant's traffic study concerning the environmental effects of the proposed rezone for the Riverside Shopping Mall. ADOPTED BY THE CITY COUNCIL this day of November, 1997. ATTEST: Lynn Buchanan, Mayor lap\sepa/gma\mercy rezone\kittleson services k res 10/30/97 11:00 PM PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into by and between the City of Yakima, a Washington municipal corporation (hereinafter the "City"), and Kittelson & Associates, Inc., a transportation planning and traffic engineering firm (hereinafter "Kittelson"). WHEREAS, the City requires third-party review of a traffic study proposed as part of the environmental study for the Riverside Shopping Mall. WHEREAS, Kittelson represents that it has the expertise necessary to perform the services required by the City. NOW, THEREFORE, in consideration of the mutual covenants, promises, •and agreements set forth herein, it is agreed by and between the City and Kittelson as follows: 1. Scope of Services. Kittelson shall perform the following services in conjunction with its review of the traffic study: A. Compilation and Review of EIS Documents • Compile all public records relevant to the project, including the traffic study portion of the EIS, all supporting documents to the EIS, and all public comments. • Review the traffic study portion of the EIS with particular attention to the study methodology and analysis procedures. • Compare study methodology and procedures with standard traffic engineering practice and City of Yakima standards. • Review all public comments regarding the traffic study portion of the EIS. B. Independent Analysis • If study methodology used in EIS is determined to have deviated from standard traffic engineering practice or City of Yakima standards, perform an independent analysis of appropriate portions of EIS traffic study. • If necessary, determine the appropriate mitigations based on the independent analysis and how they differ from the mitigations proposed in the EIS. C. Report'of Findings • Produce a report (including text, figures, and tables) which summarizes the results of Tasks A and B. The report will be divided into two sections: a discussion on the findings of Kittelson's review of the EIS traffic study, and a discussion of the response to public comments. D. Meetings • Attend a project-related meeting with the City of Yakima staff and the rezone applicants on November 12, 1997. • Attend the public hearing conducted by the Yakima Urban Area Hearing Examiner (December 1997) to present the results of Kittelson's review of the EIS. • Attend the City Council Public Meeting in January 1998. lap\sepa/gma\mercy rezone\Kittleson EIS traffic review.k 10/30/97 11:11 PM PROFESSIONAL SERVICES AGREEMENT City of Yakima - Sittelson & Associates, Inc. Page 1 of 5 Preparatory time (graphics and handouts) or attendance time for any meetings in addition to the three identified in Task D are not included in this scope of service. 2. Term. The term of this Agreement shall commence upon execution hereof and shall terminate at the time of completion of all services/tasks required hereunder. The Report of Findings, Scope of Services Task C, shall be ready for City review by November 17, 1997. 3. Consideration. The City agrees to compensate Kittelson for the services rendered hereunder as follows: COST ESTIMATE/LABOR REQUIREMENT The cost to complete the project as described by the scope of services will not exceed $20,000. The work will be done on a time -and -materials basis with an upset limit not to exceed $20,000 without prior authorization, from the City. The billing rates for Kittelson & Associates, Inc. staff are as follows: Staff Billing Rate Senior Principal $150 Principal Engineer/Planner $130 Associate Engineer/Planner $110 Senior Engineer/Planner $95 Engineer/Planner $75 Transportation Analyst $60 Senior Technician $65 Technician $55 Office Support $45 Kittelson & Associates, Inc. standard traffic counting and reproduction service rates are as follows: Service Billing Rate Turn Count (2 hr) $75/person Turn Count (3 hr) $110/person Bi -Directional driveway count (5 -day) $450 (first driveway) $160 (add'l driveways) Parking/Driveway Count (2 hr) $75 Parking/Driveway Count (3 hr) $110 Misc. Traffic Count Services—Technician $35/hr Black & White Plot (standard) $8.50 Full Color Plot (standard) $20 Blueprints $0.15/sq.ft. 4. Additional Services and Changes. During the term of this Agreement, the City may require additional services and/or changes to the scope of the services provided by Kittelson under this Agreement. The City shall provide Kittelson with written notice of such additional services and/or changes. Any City requests for additional presentations and meetings like those included in Scope of Services Task D will be accommodated on a time -and -materials basis. lap\sepa/gma\mercy rezone\Kittleson EIS traffic review.k 10/30/97 11:11 PM PROFESSIONAL SERVICES AGREEMENT City of Yakima - Kittelson & Associates, Inc. Page 2 of 5 • • • • 5. Status of Kittelson. Kittelson and the City understand and expressly agree that Kittelson is an independent contractor in the performance of each and every part of this Agreement. Kittelson and its employees shall make no claim of City employment nor shall claim against. the City any related employment benefits, social security, and/or retirement. 6. Authorization to Proceed. Execution of this agreement shall be construed as authorization for Kittelson to proceed with the services. 7. Direct Expenses. Kittelson's Direct Expenses shall be those costs incurred on or directly for the City's project, including but not limited to necessary transportation seats including mileage at Kittelson's current rate when its automobiles are used, meals and lodging, computer services, word processing services, telephone, printing, and binding charges. Reimbursement for these expenses shall be on the basis of tactual charges plus five per cent when furnished by commercial sources and on the basis of usual commercial charges when furnished by Kittelson. 8. Outside Services. When technical, professional or clerical services are provided by an outside source, when approved by the City, an additional five percent shall be added to the cost of these services for Kittelson's administrative costs. • 9. Professional Standards. Kittelson shall be responsible, to the level of competency currently maintained by other practicing professional engineers in the same type of work in Washington, for the professional and technical soundness, accuracy, and adequacy of all work and materials furnished under this agreement. Kittelson makes no other warranty, express or implied. 10. Taxes and Assessments. Kittelson shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, Kittelson shall pay the same before it becomes due. 11. Nondiscrimination Provision. During the performance of this Agreement, Kittelson shall not discriminate on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other . forms of compensation, and selection for training. 12. Compliance With Law. Kittelson agrees to perform those services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. 13. No Insurance. It is understood the City does not maintain liability ,insurance for Kittelson and/or its employees. lap\sepa/gma\mercy rezone\Kittleson EIS traffic review.k 10/30/97 11:11 PM PROFESSIONAL SERVICES AGREEMENT. City off Yakima - Kittelson & Associates, Inc. Page 3 of 5 14. Indemnification and Hold Harmless. Kittelson agrees to protect, defend, indemnify, and hold harmless the City, its elected officials, agents, officers, employees from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including attorneys' fees and disbursements) resulting from Kittelson's ,performance and/or nonperformance of this Agreement. 15. Delegation of Professional Services. The services provided for herein shall be performed by Kittelson, and no person other than regular associates or employees of Kittelson shall be engaged upon such work or services except upon written approval of the City. 16. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by Kittelson to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of Kittelson stated herein. 17. Termination. The City or Kittelson may terminate this Agreement, with or without cause, by giving the other party ten (10) days' written notice of termination. 18. No Conflict of Interest. Kittelson represents that it or its employees do not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. Kittelson further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 19. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 20. Integration. This written document constitutes the entire agreement between the City and Kittelson. There are no other oral or written Agreements between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. 21. Notices. Unless stated otherwiseherein, all notices and demands shall be in writing and sent to the parties to their addresses as follows: TO CITY: TO KITTEISON: City Traffic Engineer Julie A. Kuhn Public Works Department Project Manager 2301 Fruitvale Blvd. Kittelson & Associates, Inc. Yakima, WA 98902 610 S.W. Alder, Suite 700 Portland, OR 97206 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. lap\sepa/gma\mercy rezone\Kittleson EIS traffic review.k 10/30/97 11:11 PM PROFESSIONAL SERVICES AGREEMENT City of Yakima - Sittelson & Associates, Inc. Page 4 of 5 • • 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 23. Venue. The venue, for any action to enforce or interpret this Agreement_ shall lie in the Superior Court of Washington for Yakima County, Washington:. CITY OF YAKIMA: KITT ON & ASSOC • ES INC. By: 1511111 JE1111■►001 Y R. A. Zais, Jr., City Manager Clerk City Contract No. / 7- 103 Resolution No. —9 %-133 STATE OF oroncAA ) :ss. County of mu trlarviac,� . ) 99 S On this a i day of Sa nwv , 1.99-7, before me the undersigned, a Notary Public in and for the State of orn, duly commissioned and sworn; personally appeared Luo- t IC. !L 4e -ism/ - the Se h t ov- P vudi u.pa--f of Kittelson & Associates, Inc., a traffic engineering firm, and who executed the foregoing instrument, and acknowledged to me that he/she signed and sealed the said instrument as his/her free and voluntary act and deed for the uses and purposes therein mentioned. WITNESS my hand and official seal hereto affixed the day and year in Printed name: L s& A-, gvUvo --) NOTARY PUBLIC in and for the State of residing at .9'3-01 s € to 4A rh-.-&-oet,-(-Lc..e' tat My commission expires: SP.(- ) , zoo( Wayne K Kittelson, P �- Zi- 7r DATE: this certificate above written. OFFICIAL SEAL MELISSA A BOURQUEIN NOTARY PUBLIC • OREGON COMMISSION NO. 304385 MY COMMISSION EXPIRES SEPT. 1, 2001 lap\sepa/gma\mercy rezone\Kittleson EIS traffic review.k 10/30/97 11:11 PM PROFESSIONAL SERVICES AGREEMENT City of Yakima - Kittelson & Associates, Inc. Page 5 of 5 EXHIBIT "D" SCOPE OF PROJECT: REVIEW OF ENVIRONMENTAL IMPACT STATEMENT CITY OF YAKIMA, WASHINGTON Department of Community and Economic Development 129 North Second Street, Yakima, WA 98901 Staff Contacts : Shelley Willson (Fax: 509/575-6238) Joan Davenport (Fax:509/575-6105) 1. PURPOSE: The City of Yakima, Washington is processing an application for a rezone of 89 acres from M-1, Light Industrial to LCC, Large Convenience Center zoning to facilitate the development of a proposed shopping center. This development was required by the City to submit an Environmental Impact Statement. The purpose of this PROJECT is to hire an independent reviewer of a Final Draft Environmental Impact Statement (prepared under the provisions of the Washington State Environmental Policy Act). The Draft Environmental Impact Statement was prepared by an professional consultant and received significant public comment. The City of Yakima, Washington wishes to evaluate the adequacy of the Environmental Impact Statement prior to release of the final document for public review. Of specific concern are proposed traffic mitigation measures relative to the project.' Independent analysis is desired to determine which measures are justified and related to the project impacts. Representation during the public hearing process for the City of Yakima by a licensed professional engineer with transportation planning and engineering expertise is also requested as part of this project. • 2. TENTATIVE SCHEDULE This proposed schedule is subject to revision, but represents the approximate timelines for completion of this project. Project Record Transmitted Meet with City and Applicant Submit Written Findings Public Hearing on Rezone Council Meeting on Rezone October 24, 1997 November 12, 1997 November 17,. 1997 December 1997 January, 1998 3. DEVELOPMENT PROJECT INFORMATION The City will provide to the selected consultant a copy of the entire public record related to this matter for independent' review. The record includes the application for rezone, environmental review documents, public comments and related materials. 4. REQUIRED CONSULTANT PRODUCT Written recommendations related to the adequacy of the Environmental Impact Statement must be submitted to the City of Yakima. This analysis should include specific citations to the proposed Environmental Impact Statement and responses to the public comments received on the draft EIS. Particular attention is necessary with respect to traffic mitigation. In addition, the consultant will be requested to attend the following meetings: 1. A meeting with the City staff, rezone applicant and his representatives to discuss findings. 2. Public Hearing conducted by the Yakima Urban Area Hearing Examiner to present findings. 3. City Council Public Meeting to review; recommendation by the Hearing Examiner. 5. Project Implementation The consultant will provide the City of Yakima a project cost and draft contract to execute this project. The City reserves the right to modify the project if the contract cost is prohibitive. 10-2?-rocT 27 r' 11:5441 .1CITY'OF PIJBL "wORKS'DOt" yv�� vvv P.3i7 1� October 27, 1997 KITTELSON & ASSOCIATES, INC. TRANSPORTATION P .ANNINGRRAFFIC ENGINEERING � v343163e}o SN ALDER SURw E 700 • PORrua OR 97206 (503) gnaw itAx • Project #: 2863P Shelley Willson•_ City of Yakima Public Works Dcpnrcmcnt 2301 Fruitvale Blvd. Yakima, WA 98902 RE: Review of Rivaiside Shopping Mall Environmental Impact Stattmeal (EIS) — Yakima, WA Dear Shelley; Attached is a proposal for transportation engineering services associated with review of the traffic srudy portion of the Environmental Impact Statement (EIS) prepared for the Riverside Shopping Mall located in Yakima, Washington. hxhibit "A" identities our proposed scope of work for the project. This scope was developedbased on conversations with you and the October 22, 1997 memo from the City of Yakima Planning Departmeatentitled, "Scope of Project; Review of Environmen' Impact Statement." We estimate the cost of our work effort to be approximately S15,000 to S20,000. This estimate includes our attendance at three meetings: a meeting with the City and app1leant, thdpublic hearing. and a City Council meeting. We propose to conduct the work on a time -and -materials basis with an upset limit not to exceed S20,000 without prior authorization. With respect to project schedule. we can commit to having a report describing our findings ready for your review by November 17, 1997. I will serve as the Project Manager and Wayne Kittelson will serve ash ProjectcontractualPrincipal� can be senior review and quality assurance,- Any questions of directed to either Wayne or mc. ' Please review this proposal at your earliest convenience. If the agreement is satisfactory, please return one signed copy. Thank you for the opportunity to propose on this project. In the meantime, if you have any questions please do not hesitate to call. Sincerely, KITTELSON & ASSOCIATES, INC. ie A. Kuhn Senior Engineering Associate FILE NAME: H:IPROWILE‘21163 863PRDP.V►rP.D . • • • • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. / J For Meeting Of November 4. 1997 ITEM TITLE: Contract with Kittleson Engineering for Professional Services to Review Draft Environmental Impact Statement for Proposed R)verside Shopping Center SUBMITTED BY: Glenn Valenzuela, Director Community and Economic Develop CONTACT PERSON/TELEPHONE: Joan Davenport, Supervising Planner (575-6164) Shelley Willson, Supervising Traffic Engineer (575-6430) SUMMARY EXPLANATION: The City proposes to contract with a Professional Engineering firm (Kittleson Associates, Portland, Oregon) to conduct an independent review of the Final Draft Environmental Impact Statement submitted for Riverside Mall. Of particular concern are the findings of the Traffic Impact Analysis submitted by the applicant and related mitigation measures. Independent review of the record will provide an unbiased and professional assessment of the record. The contract will not exceed $20,000. Resolution X Ordinance_ Contract Other (Specify) Funding Source . n 11110-11 ,.,• APPROVAL FOR SUBMITTAL: 1 City Manager STAFF RECOMMENDATION: Authorize the City manager to execute the enclosed contract BOARD RECOMMENDATION: COUNCIL ACTION: Review of Riverside Shopping Mall EIS - Yakima, WA November 7, 1997 Project 2863P Page 1 of 4 AUTHORIZATION FOR PROFESSIONAL SERVICES November 7, 1997 Kittelson & Associates, Inc. 610 SW Alder Street, Suite 700 Portland, OR 97205 The City of Yakima with an office at 129 North Second Street, Yakima, WA, 98901, hereby requests and authorizes Kittelson & Associates, Inc. to perform the services as described in Exhibit "A" to this authorization for the compensation as described in Exhibit "B," subject to all of the provisions described in Exhibit "C." These specified attachments are included by reference in this authorization. Approved for City of Yakima B \\:- Title tLilt Date Accepted for Kittelson & Associates, Inc. By ,(/ vi tlr Title KAI Project Manager: Julia A. Kuhn Date 1/7/77 Kittelson & Associates, Inc. Portland, Oregon Review of Riverside Shopping Mall EIS - Yakima, WA November 7, 1997 Project 2863P Page 2 of 4 EXHIBIT "A" SCOPE OF WORK A. Compilation and Review of EIS Documents • Compile all public records relevant to the project, including the traffic study portion of the EIS, all supporting documents to the EIS, and all public comments. • Review the traffic study portion of the EIS with particular attention to the study methodology and analysis procedures. • Compare study methodology and procedures with standard traffic engineering practice and City of Yakima standards. • Review all public comments regarding the traffic study portion of the EIS. B. Independent Analysis • If study methodology used in EIS is determined to have deviated from standard traffic engineering practice or City of Yakima standards, perform an independent analysis of appropriate portions of EIS traffic study. • If necessary, determine the appropriate mitigations based on the independent analysis and how they differ from the mitigations proposed in the EIS. C. Report of Findings • Produce a report (including text, figures, and tables) which summarizes the results of Tasks A and B. The report will be divided into two sections: a discussion on the findings of our review of the EIS traffic study, and a discussion of the response to public comments. D. Meetings • Attend a project -related meeting with the City of Yakima staff and the rezone applicants on November 14, 1997. • Attend a public hearing conducted by the Yakima Urban Area Hearing Examiner to present the results of our review of the EIS. • Attend a City Council and Public Meeting to discuss the findings of the review. This scope does not include preparatory time (graphics and handouts) or attendance time for any additional meetings than the three identified in Task D. All client requests for additional presentations and meetings of this nature will be accommodated on a time-and-materialsbasis and will be considered out -of -scope work. Kittelson & Associates, Inc. Portland, Oregon Review of Riverside Shopping Mall EIS - Yakima, WA November 7, 1997 Project 2863P Page 3 of 4 EXHIBIT "B" COST ESTIMATE/LABOR REQUIREMENT It is estimated that the cost to complete the project will not exceed $20,000. The work will be done on a time-and-materialsbasis with an upset limit not to exceed $20,000 without prior authorization from the client. The billing rates for Kittelson & Associates, Inc. staff are as follows: Staff Senior Principal Principal Engineer/Planner Associate Engineer/Planner Senior Engineer/Planner Engineer/Planner Transportation Analyst Senior Technician Technician Office Support Billing Rate $150 $130 $110 $95 $75 $60 $65 $55 $45 Kittelson & Associates, Inc. standard traffic counting and reproduction service rates are as follows: Service Turn Count (2 hr) Turn Count (3 hr) Bi -Directional driveway count (5 -day) Parking/Driveway Count (2 hr) Parking/Driveway Count (3 hr) Misc. Traffic Count Services—Technician Black & White Plot (standard) Full Color Plot (standard) Blueprints Billing Rate $75.00/person $110.00/person $450.00 (first driveway) $160.00 (add'1. driveways) $75.00 $110.00 $35.00/hr $8.50 $20.00 $.15/sq. ft. Kittelson & Associates, Inc. Portland, Oregon Review of Riverside Shopping Mall EIS - Yakima, WA November 7, 1997 Project 2863P Page 4 of 4 EXHIBIT "C" PROVISIONS 1. General: In case any one or more of the provisions contained in this Agreement shall be held illegal, the enforceability of the remaining provisions contained herein shall not be impaired thereby 2. Authorization to Proceed: Signing this form shall be construed as authorization by CLIENT for KITTELSON & ASSOCIATES, INC. to proceed with the work, unless otherwise provided for in the Authorization. 3. Direct Expenses: KITTELSON & ASSOCIATES, INC.'s Direct Expenses shall be those costs incurred on or directly for the CLIENT'S Project, including but not limited to necessary transportation costs including mileage at KITTELSON & ASSOCIATES, INC.'s current rate when its automobiles are used, meals and lodging, computer services, word processing services, telephone, printing, and binding charges. Reimbursement for these Expenses shall be on the basis of actual charges plus five percent when furnished by commercial sources and on the basis of usual commercial charges when furnished by KITTELSON & ASSOCIATES, INC. 4. Outside Services: When technical, professional, or clerical services are provided by an outside source, when approved by CLIENT, an additional five percent shall be added to the cost of these services for KITTELSON & ASSOCIATES, INC.'s administrative costs. 5. Cost Estimate: Any cost estimates provided by KITTELSON & ASSOCIATES, INC. will be on a basis of experience and judgement, but since it has no control over market conditions or bidding procedures KITTELSON & ASSOCIATES, INC. cannot warrant that bids or ultimate construction costs will not vary from these cost estimates. 6. Professional Standards: KITTELSON & ASSOCIATES, INC. shall be responsible, to the level of competency currently maintained by other practicing professional engineers in the same type of work in CLIENT'S community, for the professional and technical soundness, accuracy, and adequacy of all designs, drawings, specifications, and other work and materials furnished under this Authorization. KITTELSON & ASSOCIATES, INC. makes no other warranty, express or implied. 7. Termination: Either CLIENT or KITTELSON & ASSOCIATES, INC. may terminate this Authorization by giving 30 days written notice to the other party. In such event, CLIENT shall forthwith pay KITTELSON & ASSOCIATES, INC. in full for all work previously authorized and performed prior to effective date of termination. If no notice of termination is given, relationships and obligations created by this Authorization shall be terminated upon completion of all applicable requirements of this Authorization. 8. Arbitration. All claims, disputes, and other matters in questions arising out of, or relating to, this Authorization or the breach thereof may be decided by arbitration in accordance with the rules of the American Arbitration Association then obtaining. Either CLIENT or KITTELSON & ASSOCIATES, INC may initiate a request for such arbitration, but consent of the other party to such procedure shall be mandatory. No arbitration arising out of, or relating to this Authorization may include, by consolidation, joinder, or in any other manner, any additional party not a party to this Authorization. 9. Legal Expenses: In the event legal action is brought by CLIENT or KITTELSON & ASSOCIATES, INC. against the other to enforce any of the obligations hereunder or arising out of any dispute concerning the terms and conditions hereby created, the losing party shall pay the prevailing party such reasonable amounts for fees, costs and expenses as may be set by the court. 10. Payment to KITTELSON & ASSOCIATES. INC.. Monthly invoices will be issued by KITTELSON & ASSOCIATES, INC. for all work performed in excess of the retainer amount under the terms of this agreement. Invoices are due and payable within 30 days of receipt. Interest at the rate of 1.5 percent per month will be charged on all past -due amounts, unless not permitted by law, in which case, interest will be charged at the highest amount permitted by law. 11 Limitation of Liability: KITTELSON & ASSOCIATES, INC.'s liability to the CLIENT for any cause or combination of causes is, in the aggregate, limited to an amount no greater than the fee earned under this Agreement. 12. Jurisdiction and Venue: Any lawsuit to enforce or interpret this agreement shall be commenced and litigated in either (1) one of the state courts located in Multnomah County, Oregon, or (2) the Portland branch of the United States District Court for the District of Oregon, and CLIENT consents to jurisdiction in Oregon for any such lawsuit. 13. Oregon Law: The rights and liabilities of the parties to this agreement shall be governed by the laws (without regard to choice of law rules) of the state of Oregon. Kittelson & Associates, Inc. Portland, Oregon