130THST_CHANDLER HEIGHTS PAVING ID.7.21.22 EPS SCOPE OF SERVICES.PDF
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Scope of Services – 130th St/
Chandler Heights Paving
Improvement District
Consultant:
EPS Group
Project No.:
Contract No.:
TZ####
2021‐027
Maricopa County
Department of Transportation
2901 W. Durango Street
Phoenix, AZ 85009
July 2022
Scope of Services
130th St/ Chandler Heights Paving Improvement District
Project No.: TZ####
Contract No.: 2021-027
Revised: -
Page 2 of 7
Table of Contents
SCOPE OF SERVICES – 130TH ST/ CHANDLER HEIGHTS PAVING IMPROVEMENT DISTRICT .................................... 3
Project Overview .................................................................................................................................... 3
Project Location ................................................................................................................................... 3
Project Background ............................................................................................................................. 3
Project Purpose ................................................................................................................................... 3
Length of Services ................................................................................................................................... 3
Project Scope .......................................................................................................................................... 3
100.3.3
Matrix of Responsibilities ................................................................................................. 6
100.3.4
Matrix of Deliverables ...................................................................................................... 6
100.3.5
Communication Plan ........................................................................................................ 6
400.1
Stakeholder Meetings ...................................................................................................... 7
1200.1
Project Submittals ............................................................................................................ 7
List of Tables
Table 1 – Matrix of Responsibilities .......................................................................................................... 6
Table 2 – Matrix of Deliverables ............................................................................................................... 6
Table 3 – Contact Table ............................................................................................................................. 6
Table 5 – Project Submittals Table ............................................................................................................ 7
Scope of Services
130th St/ Chandler Heights Paving Improvement District
Project No.: TZ####
Contract No.: 2021-027
Revised: -
Page 3 of 7
SCOPE OF SERVICES – 130TH ST/ CHANDLER HEIGHTS PAVING IMPROVEMENT DISTRICT
Project Overview
Project Location
The project area includes 130th Street beginning at Chandler Heights and continuing north a half mile to
Brooks Farm Road. 130th Street is located a quarter mile east of Cooper Road in Section 24 Township 2
South Range 5 East.
Project Background
130th Street is an unpaved roadway within Maricopa County’s managed roadway network between
Chandler Heights Road and Brooks Farms Road. In October 2021, Residents living within 650 feet east of
130th Street petitioned the Board of Supervisors of Maricopa County to create an improvement district
with the intent of paving the segment of roadway mentioned above.
Project Purpose
The purpose of this project is to identify a design concept and generate improvement plans to pave 130th
Street between Chandler Heights Road and Brooks Farms Road. This project will also include bid
administration support.
Length of Services
Approximately 330 calendar days (Design = 246 days, Advertise = 84 days) from notice to proceed (NTP).
Project Scope
The following tasks are anticipated with this scope of work
1. Topographic Survey
EPS Group will establish both horizontal and vertical control necessary for the topographic
mapping described below.
EPS Group will prepare topographic base mapping for
the project for that area outlined in the image to the
right (beginning at the wall to the west to 10ft past
the ROW). Topographic data provided will consist of
an AutoCAD drawing with a digital surface model
(DSM) showing the location of substantial features
observed in the process of conducting the fieldwork,
such as pavement, curbing, concrete pads, signs,
landscaped areas, drainage areas, ditches and
headwalls, and roads. Ground elevations on each side
of walls will be collected for surrounding properties
along the perimeter of the site. Existing utilities will
be located. Drainage features needed for design will
be collected. Large trees will be located within the project corridor. Elevations will be per local
City of Chandler Datum (NAVD88). The topography will be utilized for the development of
improvement plans. No formal topographic survey drawing will be prepared.
Scope of Services
130th St/ Chandler Heights Paving Improvement District
Project No.: TZ####
Contract No.: 2021-027
Revised: -
Page 4 of 7
2. Develop Design Concept
EPS will assemble background information to support design including requesting utility
information from utility providers to supplement the topo data collected in the field. We will
add this supplemental detail to the base map for design. It is assumed that MCDOT will
provide right‐of‐way (ROW) info for the 16 parcels that are adjacent to the 130th Street
alignment. If ROW info is not available, title reports may be requested for an additional fee
(assume $600/title report with a total of 15 needed for the unique property owners).
The original improvement district application proposed a roadway with two 12‐foot lanes and
6‐foot shoulders however the existing right‐of‐way/roadway easements are only 33ft wide. At
minimum 3ft of new right‐of‐way would be required from the adjacent Countryside Estates
landscape tract. Furthermore, clear zone issues would likely be present with a 24‐foot‐wide
roadway. EPS recommends a reduced width roadway concept intended to mitigate needed
utility relocations and impacts to the adjacent HOA owned landscape tract. The alternate
design concept will be based on MCDOT’s Very Low Volume Road Design Guidelines. MCDOT
does not list traffic counts for 130th St. However, there are 31 parcels within the improvement
district. Using ITE trip generation stats for single family detached land use we project a
maximum average daily traffic for this district at 344 trips per day. 130th Street meets the
majority of the criteria needed to use MCDOT’s Very Low Volume Road Design Guidelines. A
potential design exception may be required to as the constrained project corridor would not
meet all stated right‐of‐way standards. (A contract modification will be needed should a design
exception report be required to address comments during the review process.) A conceptual
design concept exhibit and planning level cost estimate will be presented to MCDOT and
Improvement District Stakeholders for review prior to moving into the design phase of the
project. No formal scoping design report will be prepared with this project.
3. Geotechnical Evaluation
A geotechnical evaluation is recommended to check existing soil conditions and make roadway
structural section recommendations. Refer to scope of work provided by EPS subconsultant
Ninyo and Moore for greater detail.
4. Drainage Evaluation
Runoff generally flows from east to west through the project area. There is very little fall from
north to south through the project limits. There are no existing drainage facilities within the
project limits. Stormwater appears to collect in local depressions within the roadway until
ponding depths are sufficient for waters to flow west into the adjacent development via opening
in the fence. There are openings in the fence to pass through stormwater every 250‐450 feet.
The proposed drainage design concept will be to mimic existing drainage conditions. This will be
done by creating local low spots in the roadway opposite wall openings so that runoff may follow
historic drainage patterns. Roadside swales may be provided on the west side of the paved road
to retain the change in runoff from the pre vs. post development condition. A one‐way crown,
sloping to the west will be considered to mimic historic drainage patterns. A recommended
drainage design concept will be captured in a drainage memo to be included with the 60% and
95% submittals.
5. Improvement Plans
A‐Preliminary Design: With MCDOT’s approval, the recommended alignment concept from
Task 2 will be developed into 60% plans. The design shall be based on MCDOT and appropriate
MAG Standard Details. All drawings shall be prepared using MicroStation format. The 60%
improvement plans will include:
Scope of Services
130th St/ Chandler Heights Paving Improvement District
Project No.: TZ####
Contract No.: 2021-027
Revised: -
Page 5 of 7
Cover Sheet
General Notes
Quantity Summary
Typical Section Sheet
Geometric Control and key map
Detail Sheets (x1)
Plan and Profile Sheets (x4)
Signing Sheets (x2)
Cross Section Sheets (x6)
EPS will distribute the preliminary plans to the appropriate utility companies for their review
and comments and identify proposed utility relocations. A preliminary estimate of probable
construction cost will be included with the 60% submittal.
EPS will meet with MCDOT staff to review comments and resolve potential conflicts. As stated
in Task 4, a preliminary drainage design memo will be provided with the 60% design submittal.
B‐Final Design: Prepare Final (95%) Plans of 130th Street paving plans. Drawings shall show the
final horizontal alignment, roadway profile, utility relocations, R/W impacts, standard and
special details, and General and Construction Notes.
An estimate of probable construction cost and draft technical specifications will be included
with the 90% submittal. Technical Specifications will be based on MAG.
EPS will meet with MCDOT staff to review Final Design comments and adjudicate as necessary.
An allowance for up to 16 legal descriptions to support the acquisition of any new right‐of‐way
or required Temporary Construction Easements (TCE’s) is included as an expense estimate
with this scope of work. MCDOT shall provide any title reports needed to prepare any legal
descriptions. It is assumed that Maricopa County’s Real Estate Department will be responsible
for acquiring any needed right‐of‐way or TCE’s for the project.
C‐Bid Documents (100%) EPS will modify Final Plans and Specifications, as required, to
incorporate final review comments. Final drawings and technical specifications will be
provided in electronic format. Drawing files and specifications will be in MicroStation and
Microsoft Word respectively.
6. Project Management/Meetings
This fee assumes that EPS will participate in up to four virtual project meetings (project kickoff,
initial design concepts/scoping, 60% comment resolution, 95% comment resolution) and one
site visit. EPS Group will have up to two representatives (as needed) at each meeting. We have
also budgeted up to 1.5 hours a week to prepare project e‐mails and respond to County
questions and prepare project invoicing. It is assumed that the design process will have an 8‐
month schedule.
7. Bid Administration Assistance
EPS will assist the County in bidding the project for construction. MCDOT shall provide EPS
with an example bid package to use as a template for bid materials. EPS shall prepare the bid
package materials for the project and provide to MCDOT for advertisement. We will attend
one pre‐bid meeting and respond to bidding RFI’s via a single Q&A addendum to all bidders.
Scope of Services
130th St/ Chandler Heights Paving Improvement District
Project No.: TZ####
Contract No.: 2021-027
Revised: -
Page 6 of 7
100.3.3
Matrix of Responsibilities
Table 1 – Matrix of Responsibilities
Item
Consultant
MCDOT
Other
(Identify)
Project Work Plan
X
Kick‐Off Meeting
X
Topographic Survey
X
Background Research/Utilities
X
Develop Two Design Concepts
X
Geotechnical Report/Pavement Design
X
Drainage Memo
X
Project Administration
X
Improvement plans (60%, 95%, PS&E)
X
Bid Administration
X
100.3.4
Matrix of Deliverables
The Consultant shall use MicroStation to develop any CADD deliverables (not anticipated) and will use
MCDOT’s CADD Standards.
Table 2 – Matrix of Deliverables
Item
Deliverable
Design Phase
Scoping
60% Plans 95% Plans
PS&E
Alternatives Evaluation
TM
D/F
Drainage Memo
TM
D
F
S
Geotechnical Memo/Pavement Design
TM
D
F
S
P = Preliminary D = Draft F = Final S = Sealed TM=Technical Memo
100.3.5
Communication Plan
Table 3 – Contact Table
Name
Role
Agency
Phone
Number
Mailing Address
Email Address
Alana
Lewicki
Project
Manager
MCDOT
602‐506‐6292
2901 W. Durango Street
Phoenix, AZ 85009
Alana.lewicki@maricop
a.gov
Matt
Truitt
Consultant
Engineer
EPS
Group
480‐503‐2250
1130 N Alma School Rd
Suite 120, Mesa AZ
85201
Matt.truitt@epsgroupin
c.com
Scope of Services
130th St/ Chandler Heights Paving Improvement District
Project No.: TZ####
Contract No.: 2021-027
Revised: -
Page 7 of 7
400.1
Stakeholder Meetings
There will be one onsite meeting with the representative of the Improvement District but no other public
or stakeholder meetings with this project.
1200.1
Project Submittals
Table 5 – Project Submittals Table
Legend:
H# ‐ Number of Hard Copies Requested
E ‐ Indicates Electronic Submittal is Requested
Alana Lewicki
(Project Manager)
Total Number of
Hard Copies
Submittal Document
Tech Memo – Alternative Evaluation
E
0
Tech Memo – Drainage Evaluation
E
0
Tech Memo – Geotechnical Pavement Design
E
0
60% Improvement Plans
E
0
95% Improvement Plans
E
0
Final PS&E
E
0
Note: All plan copies are assumed to be half size. All submittals will be in accordance with MCDOT PDM,
MCDOT RDM, and MCDOT CADD Standards.
Project Name: 130th ST. & Chandler Heights Rd Paving
EPS Group
PROJECT NO. TT0###
Contract No. 2021-027
ESTIMATED DIRECT LABOR
PERSON
BILLING
CLASSIFICATION
HOURS
RATE/HOUR
TOTAL
Project Principal
-
71.04
$
-
$
Project Manager
137
74.33
$
10,146
$
Sr Project Engineer
-
56.69
$
-
$
Project Engineer
283
49.25
$
13,938
$
Design Engineer
-
37.88
$
-
$
CAD/GIS Technician
349
36.36
$
12,690
$
Sr Landscape Architect
-
54.17
$
-
$
Landscape Designer
-
32.24
$
-
$
Project Surveyor
99
59.50
$
5,891
$
Survey Technician
60
35.61
$
2,137
$
Administrative
4
32.57
$
130
$
932
Hours
Estimated Labor Cost
44,930.82
$
Overhead 158.56%
71,242.30
Subtotal
116,173
$
ESTIMATED DIRECT EXPENSES
(Listed By Item At Estimated Actual Cost - NO MARKUP)
Travel
-
$
Plotting
-
$
Exta Services
-
$
Total Estimated Expenses
-
$
ESTIMATED OUTSIDE SERVICES AND CONSULTANTS
Firm
Cost
Ninyo & Moore (Geotech)
5,900
$
Title Reports (Allowance)
9,000
$
-
$
Total Estimated Outside Services
14,900
$
PROFIT (Direct Labor +Overhead)
10%
11,617.31
TOTAL ESTIMATED FEE
142,690.43
$
CONTRACT TIME
365 Calendar Days
7/21/2022
(Figures Rounded To The Nearest $1)
Consultant Firm Signature
Date
DERIVATION OF COST PROPOSAL SUMMARY
3/26/2013
Page 1 of 1
Project Name: 130th ST. & Chandler Heights Rd Paving
EPS Group
PROJECT NO. TT0###
Contract No. 2021-027
Scale
No
Shts
Hours/
Sheet
Project
Manager
Sr Proj
Engineer
Project
Engineer
Design
Engineer
CAD/GIS
Technician
Sr Landscape
Architect
Project
Surveyor
Survey
Tech
Administrative
Total
Task 1: Topo Survey
Horizontal & Vertical Control
4
20
2
26.0
Topographic Survey
8
40
2
50.0
Legal Descriptions (Allowance for 16)
72
72.0
Task 2: Concept Development
Background Research (Utility/Site issues/ROW)
8
10
15
33.0
Develop Conceptual Alignment Exhibit (20ft paved 4ft off west R/W line)
2
12
16
30.0
Planning level cost estimates
1
8
2
11.0
Task 3: Geotechnical Evaluation (See N&M Fee on Expense Sheet)
Task 4: Drainage Evaluation
Develop Drainage Concept/Drainage Calcs
3
16
19.0
Draft Drainage Memo
2
8
6
16.0
Final Drainage Memo
2
6
2
10.0
Task 5a: Preliminary (60%) Plans
Face Sheet
1
11
0.5
2
8
10.5
General Notes
1
13
0.5
4
8
12.5
Quantity Summary
1
13
0.5
8
4
12.5
Typical Sections
1
21
0.5
4
16
20.5
Geometric Control
1
21
1
6
14
21.0
Detail Sheet (Assume 1)
1
15
1
4
10
15.0
Plan and Profile Sheets
40
4
19
2
24
48
74.0
Signing and Striping
40
2
17
2
12
20
34.0
Cross Section Sheets
6
10
2
12
48
62.0
QC Review per MCDOT Checklists
6
10
12
28.0
Cost Estimates
1
4
4
9.0
Initial Utility Coordination
0.5
8
8.5
Prepare summary of comments
2
8
2
12.0
Task 5b: Final (95%) Plans
Revise sheets per comments
2
32
64
98.0
QC Review per MCDOT Checklists
3
3
12
18.0
Cost Estimates
1
4
3
8.0
Draft Special Conditions
2
8
10.0
Prepare summary of comments
1
6
2
9.0
Task 5c: Final PS&E
Revise sheets per comments
1
10
32
43.0
QC Review per MCDOT Checklists
1
4
4
9.0
Cost Estimates
1
2
2
5.0
Final Special Conditions
2
6
8.0
Task 6 Project Management/Meetings
Project Management (assume 8 month design)
51
51.0
Project Meetings (Assume 4)
20
20
40.0
Task 7: Bid Administration
Prepare bid materials for project based on provided example
16
16
32.0
Attend a pre-bid meeting
4
4.0
Respond to Bidding RFIs in one Q&A Addendum
2
8
10.0
18
136.5
283
349
99
60
4
931.5
TASK
ESTIMATED STAFF HOURS - Scoping/Design/Bidding/Post Design
Project Name: 130th ST. & Chandler Heights Rd Paving
EPS Group
PROJECT NO. TT0###
Contract No. 2021-027
Travel
A. Local Mileage at
0.56
$
miles
Subtotal Travel
-
$
Plotting
B. Exhibits at
0.25
$
exhibits
-
$
C. Plots at
1.50
$
plots
-
$
D. Plan Submittals
Half Size Bond Copies at
0.12
$
-
Copies
Full Size Bond Copies at
1.15
$
-
Copies
Subtotal Plotting
-
$
Exta Services
C.
Subtotal Miscellaneous Expenses
-
$
ESTIMATED OUTSIDE SERVICES & CONSULTANTS
Ninyo & Moore (Geotech)
5,900
$
Title Reports (Allowance)
9,000
$
TOTAL ESTIMATED OUTSIDE SERVICES
14,900
$
TOTAL ESTIMATED EXPENSES
14,900
$
ESTIMATE OF DIRECT EXPENSES
3/26/2013
Page 1 of 1
3202 East Harbour Drive | Phoenix, Arizona 85034 | p. 602.243.1600 | www.ninyoandmoore.com
April 15, 2022
Proposal No. 12PHX02-04483
Mr. Matt Truitt, PE
EPS Group, Inc.
1130 North Alma School Road, Suite 120
Mesa, Arizona 85201
Subject:
Proposal to Provide Geotechnical Engineering Services
130th Street Improvements
Chandler Heights Road to Brooks Farm Road
Chandler, Arizona
Dear Mr. Truitt:
Ninyo & Moore is pleased to submit this proposal to provide geotechnical engineering services for
the above-mentioned project. This proposal is based on the information that we received from your
office. It outlines our scope of services, project assumptions, anticipated schedule, and fee for
this project.
SCOPE OF SERVICES
Our scope of services for this project is summarized below:
•
Review available published and in-house geotechnical reports, topographic information, soil
surveys, geologic literature, and aerial photographs of the project area.
•
Conduct a field trip to the site for geologic reconnaissance.
•
Conduct a site visit to select and mark out the proposed boring locations.
•
Contact Arizona 811 to evaluate utility locations prior to drilling.
•
Obtain permits / permission from the County/City of Chandler to conduct our field work activities.
•
Excavate four shallow borings using hand-operated equipment to about 3 feet deep.
•
Perform lab testing to evaluate the index properties of the soil.
•
Prepare a letter report summarizing our findings and conclusions, specifically addressing
subgrade prep, anticipated traffic loadings and minimum pavement section. The report will
include a cover letter sealed by a Professional Engineer licensed in the State of Arizona.
Ninyo & Moore | Chandler Heights Road to Brooks Farm Road, Chandler, Arizona | 12PHX02-04483 | April 15, 2022
2
ASSUMPTIONS
We have made the following assumptions in the preparation of this proposal:
•
The site is accessible to normal, two-wheel drive equipment, and site access will be granted.
•
The work will be done off the paved roadways and no traffic control services will be needed.
•
Ninyo & Moore will not need to obtain any environmental clearance as a part of this project.
SCHEDULE
We are prepared to initiate this project immediately and could begin the field work immediately.
The fieldwork should be finished within three weeks once right-of-entry permission is obtained. We
anticipate issuing our report within about four weeks from the date we finish the field work.
Preliminary recommendations can be provided about one week after the field work is done.
FEE
We propose to perform the scope of work summarized above for a fee of $5,900 (Five Thousand
Nine Hundred Dollars). Any additional services, not included in the aforementioned scope, will be
charged on a time-and-materials basis in accordance with our current Schedule of Fees. If this
proposal meets with your approval, please sign and return a copy of the attached
Work Authorization and Agreement.
We look forward to working with you.
Respectfully submitted,
NINYO & MOORE
Steven D. Nowaczyk, PE
Managing Principal Engineer
SDN/tlp
Attachment:
Work Authorization and Agreement
Ninyo & Moore | Chandler Heights Road to Brooks Farm Road, Chandler, Arizona | 12PHX02-04483 | April 15, 2022
1
WORK AUTHORIZATION AND AGREEMENT
Please Sign and Return One Copy to:
NINYO & MOORE
3202 East Harbour Drive
Phoenix, Arizona 85034
PROPOSAL NO. 12PHX02-04483
1.
PROJECT ADDRESS:
Chandler Heights Road to Brooks Farm Road, Chandler, Arizona
2.
PROJECT DESCRIPTION:
Geotechnical Engineering Services
3.
SCOPE OF STUDY:
Please refer to proposal dated April 15, 2022.
4.
FEE: $5,900 (Five Thousand Nine Hundred Dollars – Time and Materials)
5.
PORTION OF FEE IN ADVANCE OF WORK: None
6.
CLIENT:
EPS Group, Inc.
PHONE: (480) 503-2250
1130 North Alma School Road, Suite 120
Mesa, Arizona 85201
CONTACT: Matt Truitt
PHONE: (480) 503-2250
7.
STATEMENT TO BE SENT TO: Client
CONDITIONS OF AGREEMENT BETWEEN CLIENT AND NINYO & MOORE
This AGREEMENT is made by and between: NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES
CONSULTANTS, hereinafter referred to as CONSULTANT, and EPS Group, Inc., hereinafter referred to as CLIENT. This
AGREEMENT between the parties consists of these TERMS, the attached Proposal identified as No. 12PHX02-04483
dated April 15, 2022, and any exhibits or attachments noted in the Proposal. Together, these elements will constitute the
entire AGREEMENT superseding any and all prior negotiations, correspondence, or agreements either written or oral. Any
changes to this AGREEMENT must be mutually agreed to in writing.
STANDARD OF CARE
CLIENT recognizes that subsurface conditions may vary from those observed at locations where borings, surveys, or
explorations are made, and that site conditions may change with time. Data, interpretations, and recommendations by
CONSULTANT will be based solely on information available to CONSULTANT. CONSULTANT is responsible for those
data, interpretations, and recommendations, but will not be responsible for other parties' interpretations or use of the
information developed.
Services performed by CONSULTANT under this AGREEMENT are expected by CLIENT to be conducted in a manner
consistent with the level of care and skill ordinarily exercised by members of the geotechnical engineering profession
practicing contemporaneously under similar conditions in the locality of the project. Under no circumstance is any warranty,
expressed or implied, made in connection with the providing of geotechnical consulting services.
SITE ACCESS AND SITE CONDITIONS
CLIENT will grant or obtain free access to the site for all equipment and personnel necessary for CONSULTANT to perform
the work set forth in this agreement. CLIENT will notify any and all possessors of the project site that CLIENT has granted
CONSULTANT free access to the site. Client will protect all property, inside and out, including all plants and landscaping.
CONSULTANT will take reasonable precautions to reduce the potential for damage to the site, but it is understood by
CLIENT that, in the normal course of work, some damage may occur and the correction of such damage or alteration is not
part of this AGREEMENT unless so specified in the Proposal.
CLIENT is responsible for accurately delineating the locations of all subterranean structures and utilities. CONSULTANT will
take reasonable precautions to avoid known subterranean structures, and CLIENT waives any claim against
CONSULTANT, and agrees to defend, indemnify and hold CONSULTANT harmless from any claim or liability for injury or
loss, including costs of defense, arising from damage done to subterranean structures and utilities not identified or
accurately located. In addition, CLIENT agrees to compensate CONSULTANT for any time spent or expenses incurred by
Ninyo & Moore | Chandler Heights Road to Brooks Farm Road, Chandler, Arizona | 12PHX02-04483 | April 15, 2022
2
CONSULTANT in defense of any such claim, with compensation to be based upon CONSULTANT's prevailing fee schedule
and expense reimbursement policy.
SAMPLE DISPOSAL
CONSULTANT will dispose of remaining soil, rock, and water samples approximately thirty (30) days after submission of the
report covering those samples. Further storage or transfer of samples can be made at CLIENT's expense upon CLIENT's
prior written request.
MONITORING
If CONSULTANT is retained by CLIENT to provide a site representative for the purpose of monitoring specific portions of
construction work or other field activities as set forth in the Proposal, then this phrase applies. For the specified assignment,
CONSULTANT will report observations and professional opinions to CLIENT or CLIENT’s agent. No action of
CONSULTANT or CONSULTANT's site representative can be construed as altering any AGREEMENT between the
CLIENT and others. CONSULTANT will report to CLIENT or CLIENT’s agent any observed geotechnically related work
which, in CONSULTANT's professional opinion, does not conform with plans and specifications. The CONSULTANT has no
right to reject or stop work of any agent or subcontractor of CLIENT; such rights are reserved solely for CLIENT.
Furthermore, CONSULTANT's presence on the site does not in any way guarantee the completion or quality of the
performance of the work of any party retained by CLIENT to provide field or construction-related services.
If CONSULTANT is not retained by Client for the purpose of monitoring construction work or field activities, CONSULTANT
will expressly not be held liable or responsible for such activities or for the geotechnical performance of the completed
project. Monitoring of construction work or field activities and the geotechnical performance of the completed project is and
will remain the sole and express responsibility of the CLIENT or other party designated by the CLIENT. CLIENT hereby
agrees to indemnify and hold harmless CONSULTANT from and against any loss or judgment, suffered by the
CONSULTANT as a result of a claim or lawsuit resulting from CLIENT’s failure to monitor construction work or field activities
for which CONSULTANT has not been retained.
CONSULTANT will not be responsible for and will not have control or charge of specific means, methods, techniques,
sequences or procedures of construction or other field activities selected by any agent or agreement of CLIENT. It is
mutually understood and agreed by CLIENT and CONSULTANT that CONSULTANT has no control or enforcement ability
over any persons or parties who are not employees of CONSULTANT. CONSULTANT does not purport to be, nor is
CONSULTANT responsible for, any safety precautions nor programs incident thereto for such non-employees of
CONSULTANT.
OWNERSHIP AND MAINTENANCE OF DOCUMENTS
Unless otherwise specified in this Agreement or in an Addendum, and provided that CONSULTANT has been fully paid for
the Services, CLIENT shall have the right to use the documents, maps, photographs, drawings and specifications resulting
from CONSULTANT’s efforts on the project, for purposes reasonably contemplated by the parties. CONSULTANT shall
have the right, but shall not be obligated, to retain copies of all such materials and shall have the right to use the same for
any purpose, unless such use would be expected to cause harm to CLIENT. CLIENT shall specify in advance, in writing,
and be charged for all arrangements for special or extended-period maintenance of such materials by CONSULTANT.
CONSULTANT retains the right of ownership with respect to any patentable concepts or copyrightable materials arising
from its Services.
Reuse of any material described by CLIENT, including publication to third parties, on extension of this project or on any
other project without CONSULTANT’s written authorization, shall be at CLIENT’s risk, and CLIENT agrees to indemnify,
defend, and hold harmless CONSULTANT from all claims, damages, and expenses, including attorney’s fees, arising out of
such unauthorized reuse.
BILLING AND PAYMENT
CLIENT will pay CONSULTANT in accordance with the procedures indicated in the Proposal and its attachments. Invoices
will be submitted to CLIENT by CONSULTANT, and will be due and payable upon presentation. If CLIENT objects to all or
any portion of any invoice, CLIENT will so notify CONSULTANT in writing within fourteen (14) calendar days of the invoice
date, identify the cause of disagreement, and pay when due that portion of the invoice not in dispute. The parties will
immediately make every effort to settle the disputed portion of the invoice. In the absence of written notification described
above, the balance as stated on the invoice will be paid.
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Invoices are delinquent if payment has not been received within thirty (30) days from date of invoice. CLIENT will pay an
additional charge of three quarters of a percent (.75) per month (or the maximum percentage allowed by law, whichever is
lower) on any delinquent amount, excepting any portion of the invoiced amount in dispute and resolved in favor of CLIENT.
Payment thereafter will first be applied to accrued interest and then to the principal unpaid amount. All time spent and
expenses incurred (including any attorney's fees) in connection with collection of any delinquent amount will be paid by
CLIENT to CONSULTANT per CONSULTANT's current fee schedules. In the event CLIENT fails to pay CONSULTANT
within sixty (60) days after invoices are rendered, CLIENT agrees that CONSULTANT will have the right to consider the
failure to pay the CONSULTANT's invoice as a breach of this AGREEMENT and CONSULTANT may cease work on the
project. At CONSULTANT’s option, CONSULTANT may waive said major breach upon payment by CLIENT of all
arrearages and outstanding invoices.
TERMINATION
This AGREEMENT may be terminated by either party seven (7) days after written notice in the event of any breach of any
provision of this AGREEMENT or in the event of substantial failure of performance by either party, or if CLIENT suspends
the work for more than three (3) months. In the event of termination, CONSULTANT will be paid for services performed prior
to the date of termination plus reasonable termination expenses, including, but not limited to, the cost of completing
analyses, records, and reports necessary to document job status at the time of termination.
RISK ALLOCATION
Many risks potentially affect CONSULTANT by virtue of entering into this AGREEMENT to perform professional consulting
services on behalf of CLIENT. The principal risk is the potential for human error by CONSULTANT. For CLIENT to obtain
the benefit of a fee which includes a nominal allowance for dealing with CONSULTANT's liability, CLIENT agrees to limit
CONSULTANT's liability to CLIENT and to all other parties for claims arising out of CONSULTANT's performance of the
services described in this AGREEMENT. The aggregate liability of CONSULTANT will not exceed $50,000 for negligent
professional acts, errors, or omissions, including attorney’s fees and costs which may be awarded to the prevailing party,
and CLIENT agrees to indemnify and hold harmless CONSULTANT from and against all liabilities in excess of the monetary
limit established above.
Limitations on liability and indemnities in this AGREEMENT are business understandings between the parties voluntarily
and knowingly entered into, and shall apply to all theories of recovery including, but not limited to, breach of contract,
warranty, tort (including negligence), strict or statutory liability, or any other cause of action, except for willful misconduct or
gross negligence. The parties also agree that CLIENT will not seek damages in excess of the limitations indirectly through
suits with other parties who may join CONSULTANT as a third-party nor by an award of attorney’s fees and costs to the
prevailing party in excess of the aggregate liability agreed upon herein by the parties. Parties means CLIENT and
CONSULTANT and their officers, employees, agents, affiliates, and subcontractors.
Both CLIENT and CONSULTANT agree that they will not be liable to each other, under any circumstances, for special,
indirect, consequential, or punitive damages arising out of or related to this AGREEMENT.
INDEMNIFICATION
If any claim is brought against CONSULTANT, its employees, agents and subcontractors and/or CLIENT by a third party,
relating in any way to the Services, the contribution and indemnification rights and obligations of CONSULTANT and Client,
subject to the paragraph titled “Risk Allocation” above, such claim shall be determined as follows:
1. If any negligence, breach of contract, or willful misconduct of CONSULTANT caused any damage, injury, or loss claimed
by the third party, then CONSULTANT and CLIENT shall each indemnify the other against any loss or judgement on a
comparative negligence basis (CLIENT responsibility to include that of its agents, employees, and other contractors);
and
2. Unless CONSULTANT was liable for negligence, breach of contract, or willful misconduct which in whole or in part,
caused the damage, injury, or loss asserted in the third party claim, CLIENT shall indemnify CONSULTANT against the
claim, liability, loss, legal fees, consulting fees, and other costs of defense reasonably incurred.
DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS
CLIENT represents that CLIENT has made a reasonable effort to evaluate if hazardous materials are on or near the project
site, and that CLIENT has informed CONSULTANT of CLIENT's findings relative to the possible presence of such materials.
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Hazardous materials may exist at a site where there is no reason to believe they could or should be present. CONSULTANT
and CLIENT agree that the discovery of unanticipated hazardous materials constitutes a changed condition mandating a
renegotiation of the scope of work or termination of services. CONSULTANT and CLIENT also agree that the discovery of
unanticipated hazardous materials may make it necessary for CONSULTANT to take immediate measures to protect health
and safety. CLIENT agrees to compensate CONSULTANT for any equipment decontamination or other costs incident to the
discovery of unanticipated hazardous materials.
CONSULTANT agrees to notify CLIENT when unanticipated hazardous materials or suspected hazardous materials are
encountered. CLIENT agrees to make any disclosures required by law to the appropriate governing agencies. CLIENT also
agrees to hold CONSULTANT harmless for any and all consequences of disclosures made by CONSULTANT which are
required by governing law. In the event the project site is not owned by CLIENT, CLIENT recognizes that it is CLIENT's
responsibility to inform the property owner of the discovery of unanticipated hazardous materials or suspected hazardous
materials.
Notwithstanding any other provision of the AGREEMENT, CLIENT waives any claim against CONSULTANT and, to the
maximum extent permitted by law, agrees to defend, indemnify, and save CONSULTANT harmless from any claim, liability,
and/or defense costs for injury or loss arising from CONSULTANT's discovery of unanticipated hazardous materials or
suspected hazardous materials, including, but not limited to, any costs created by delay of the project and any cost
associated with possible reduction of the property's value.
CLIENT will be responsible for ultimate disposal of any samples secured by CONSULTANT which are found to be
contaminated.
DISPUTE RESOLUTION
If a dispute at law arises from matters related to the services provided under this AGREEMENT and that dispute requires
litigation, then:
1.
The claim will be brought and tried in judicial jurisdiction of the court of the county where CONSULTANT's principal
place of business is located and CLIENT waives the right to remove the action to any other county or judicial
jurisdiction, and;
2.
The prevailing party will be entitled to recovery of all reasonable costs incurred, including staff time, court costs,
attorneys' and expert witness fees, and other claim-related expenses.
GOVERNING LAW AND SURVIVAL
If any of the provisions contained in this AGREEMENT are held illegal, invalid, or unenforceable, the enforceability of the
remaining provisions will not be impaired. Risk allocation and indemnities will survive termination or failure of this
AGREEMENT for any cause.
The parties have read, or had the opportunity to read, the foregoing, including all attachments, addendums, and exhibits
hereto, have had an opportunity to discuss the same, understand completely the terms, and willingly enter into this
AGREEMENT which will become effective on the date signed below by CLIENT.
Printed Name of Client or Authorized Agent
Signature of Client or Authorized Agent
Date
Steven D. Nowaczyk, PE, Managing Principal Engineer
Date
PM: SDN