R2005-0060 03-28-05 RESOLUTION NO. R2005-60
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO AN ENGINEERING CONTRACT WITH TOLUNAY-WONG
ENGINEERS, INC. FOR GEOTECHNICAL STUDY SERVICES
ASSOCIATED WITH THE MAGNOLIA ROAD EXPANSION PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract by and between the City of Pearland and
Tolunay-Wong Engineers, Inc., a copy of which is attached hereto as Exhibit "A" and made
a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a contract with Tolunay-Wong Engineers, Inc., for
geotechnical services associated with the Magnolia Road Expansion Project.
PASSED, APPROVED and ADOPTED this the 28th day of March ,
A.D., 2005.
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
TOM REID
MAYOR
Exhibit "A"
. Resolution 2005-60
CITY OF PEARLAND
STANDARD AGREEMENT
FOR ENGINEERING SERVICES i~
This Contract (Contract) is made between the City of Pearland, Texas
(hereinafter "City"), and Tolunay-Wong Engineers (hereinafter "Engineer") as follows:
1. Summary of Contract Terms. The following information and referenced documents
shall be a part of this Contract:
Description of Project: Provide Geotechnical Services associated with the Magnolia
Road Street Expansion
EngineedSubconsultant(s) Fee Basis of Compensation
Tolunay-Wong Engineers, $49,934.00 LumP Sum
Inc.
Maximum Contract Amount $49,934.00 Lump Sum
* All financial obligations created by this agreement are between the City and
Engineer, and shall not be construed to be between City and any subconsultant.
Attachments: Scope of Services - Exhibit A
2. Services and Payment.
Engineer shall perform services within the Standard of Care of the Engineering
profession as follows:
A. Engineer will furnish services to the City in accordance with the terms and
conditions specified in this Contract. Payment for the services of Engineer shall be due
and payable upon submission and approval of a statement for services to City.
Statements for services shall not be submitted more frequently than monthly.
After consultation with the City, the Engineer shall specify the basis of
compensation in the scope of work for the project. The Engineer shall provide adequate
detail of the basis of compensation so that the City can determine the reasonableness
of the fees and have the ability to make reasonable progress payments to the Engineer
based upon work completed at the payment intervals. The Engineer shall subcontract
for all subconsultants, subject to City approval, necessary to complete the scope of
work. The subconsultant's fees and administrative mark-up, if any, shall be included in
the scope of work. Unless otherwise agreed upon, the method of compensation shall
be one of the following methods:
1. Salary Cost Times Multiplier Plus Direct Nonsalary Expense ("Salary")
Compensation shall be based on 1) the direct salaries (including benefits)
of the Engineer's employees whose time is directly chargeable to the
project; 2) an agreed upon multiplier to compensate the Engineer for
overhead and profit; and 3) reimbursement for direct nonsalary
expenditures and subconsultant contracts as defined in the scope of work
for the project. The Engineer shall provide a proposal that includes the
total fees for the project, which shall not be exceeded without prior City
approval.
2. Per Diem ("Per Diem")
Compensation shall be based upon 1) an agreed upon lump sum per day
for specific services; and 2) reimbursement for direct nonsalary
expenditures and subconsultant contracts as defined in the scope of work
for the project. This method is best suited to expert witness work or other
short-term engagements involving intermittent services.
3. Cost Plus Fixed Fee ("Cost Plus")
Compensation shall be based upon 1) reimbursement of the actual costs
of all services and supplies related to the project and 2) an agreed upon
fixed fee (profit). The Engineer shall provide an estimate of the costs to
be reimbursed, but actual compensation shall be based upon invoices and
supporting documentation provided by the Engineer.
4. Lump Sum ("Lump")
Compensation shall be based upon an agreed lump sum payment for
completing the entire scope of work. This method is best suited to
investigations or studies and for basic services with limited scope and
complexity.
5. Percent of Construction ("Percent")
Compensation shall be based upon 1) the "Harris County Curve for
Engineering Compensation" for basic and construction phase services;
and 2) reimbursement for direct nonsalary expenditures and subconsultant
contracts as defined in the scope of work for the project. The Engineer
shall provide a proposal that includes the estimated construction cost of
the project and the total fees for the project. If the actual Iow bid for
construction is 20% above or below the estimate, the engineering fees are
subject to equitable adjustment by mutual agreement of the Engineer and
City.
If City fails to make any payment due Engineer for services and expenses within
thirty (30) days after receipt and approval of Engineer's statement for services therefore,
the amounts due Engineer will be increased at the rate of one-half percent (1/2%) per
month from said thirtieth (30th) day, and, in addition, Engineer may, after giving seven
(7) days' written notice to City, suspend services under this Contract until Engineer has
been paid in full, all amounts due for services, expenses, and charges.
B. All the Engineer's working drawings, plans, and specifications, if required under
this Contract, shall be sufficiently accurate, detailed, and complete so that competitive
bids for the work can be obtained and the improvements constructed.
C. Approval of the Engineer's work by the City shall not release the Engineer, its
employees, agents, or consultants, from the responsibility and liability for the accuracy
and competency of their designs, working drawings, and specifications, or other
documents and services.
D. Subject to Article 8 herein or as 'otherwise agreed, the Engineer shall promptly
correct errors in the Engineer's work, including errors discovered after final payment,
without receiving additional compensation.
E. Prior to execution of this agreement, the Engineer shall have prepared a project
schedule identified as an attachment to this agreement. The Project Schedule shall be
submitted in digital and paper form, in the Microsoft Project for Windows format. The
Project Schedule shall contain a complete schedule so that the Engineer's scope of
services under this contract can be accomplished within the specified time and contract
cost. The Project Schedule will provide specific work sequence and definite review
times by the City and the Engineer of the work performed. If the review time should
take longer than shown on the project schedule, through no fault of the Engineer,
additional contract time may be authorized by the City through a supplemental
agreement, if requested by a timely written request from the Engineer and approved by
the City.
3. Term and Termination. This Contract term will begin upon execution and end sixty
days after issuance of the certification of completion of construction by the Engineer.
The City may terminate this Contract at any time during its term by giving written notice
to Engineer. The City shall pay the Engineer for all services rendered to the date of
termination.
4. Modifications. City without invalidating the Contract, may order changes within the
general scope of the work required by the Contract by altering, adding to and/or
deducting from the work to be performed. If any change under this clause causes an
increase or decrease in Engineer's cost of, or the time required for, the performance of
any part of the Services under the Contract, an equitable adjustment will be made by
mutual agreement and the Contract modified in writing accordingly.
5. Subcontracts. If, for any reason, at
any time during the progress of providing
3
services, City determines that any subcontractor for Engineer is incompetent or
undesirable, City will notify Engineer accordingly and Engineer shall take immediate
corrective action, which may include cancellation of such subcontract. Subletting by
subcontractors shall be subject to the same regulations. Nothing contained in the
Contract shall create any contractual relation between any subcontractor and City.
6. Ownership of Documents. All drawings, report data, and other project information
developed in the execution of the services provided under this Contract shall be the
property of the City upon payment of Engineer's fees for services. Engineer may retain
copies for record purposes. Owner agrees such documents are not intended or
represented to be suitable for reuse by City or others. Any reuse by City or by those
who obtained said documents from City without written verification or adaptation by
Engineer will be at City's sole risk and without liability or legal exposure to Engineer, or
to Engineer's independent associates or consultants, and City shall indemnify and hold
harmless Engineer and Engineer's independent associates and consultants from all
claims, damages, losses, and expenses including attorneys' fees arising out of or
resulting therefrom. Any such verification or adaptation will entitle Engineer to further
reasonable compensation. Engineer may reuse all drawings, report data, and other
project information in the execution of the services provided under this Contract in
Engineer's other activities. Any reuse by Engineer will be at Engineer's sole risk and
without liability or legal exposure to City, and Engineer shall indemnify and hold
harmless City from all claims, damages, losses, and expenses including attorneys' fees
arising out of or resulting therefrom.
7. Insurance.
A. The Engineer shall procure and maintain for the duration of this Agreement,
insurance against claims for injuries to persons, damages to property, or any errors and
omissions relating to the performance of any work by the Engineer, its agents,
employees or subcontractors under this Agreement, as follows:
(1) Workers' Compensation as required by law.
(2) Professional Liability Insurance in an amount not less than $1,000,000 in
the aggregate.
(3)
Comprehensive General Liability and Property Damage Insurance with
minimum limits of $1,000,000 for injury or death of any one person,
$1,000,000 for each occurrence, and $1,000,000 for each occurrence of
damage to or destruction of property.
(4)
Comprehensive Automobile and Truck Liability Insurance covering owned,
hired, and non-owned vehicles, with minimum limits of $1,000,000 for
injury or death of any one person, $1,000,000 for each occurrence, and
$1,000,000 for property damage.
4
B. The Engineer shall include the City as an additional insured under the policies,
with the exception of the Professional Liability Insurance and Workers' Compensation.
Certificates of Insurance and endorsements shall be furnished to the City before work
commences. Each insurance policy shall be endorsed to state that coverage shall not
be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30)
days prior written notice by certified mail, return receipt requested, has been given to
the City. Upon request, certified copies of all insurance policies shall be furnished to the
City.
8. Indemnity. Engineer shall indemnify and hold the City, its officers, agents, and
employees, harmless from any claim, loss, damage, suit, and liability of every kind for
which Engineer is legally liable, including all expenses of litigation, court costs, and
attorney's fees, for injury to or death of any person, for damage to any property, or
errors in design, any of which are caused by the negligent act or omission of the
Engineer, his officers, employees, agents, or subcontractors under this Contract.
9. Assignment. Engineer shall not assign this Contract without the prior written
consent of the City.
10. Law Governing and Venue. This Contract shall be governed by the law of the State
of Texas and no lawsuit shall be prosecuted on this Contract except in a court of
competent jurisdiction located in Brazoria County, Texas.
11. Entire Contract. This Contract represents the entire Contract between the City and
the Engineer and supersedes all prior negotiations, representations, or contracts, either
written or oral. This Contract may be amended only by written instrument signed by
both parties. Purchase orders issued under this Agreement shall contain a statement
nullifying additional terms and conditions on the reverse side of the purchase order and
referencing this Agreement.
12. Conflicts in Contract Documents. The above provisions shall govern over any
conflicting provision contained in any referenced contract document specified above.
13. Dispute Resolution Procedures. The Engineer and City desire an expeditious
means to resolve any disputes that may arise between them regarding this Contract. To
accomplish this, the parties agree to mediation as follows: If a dispute arises out of or
relates to this Contract, or the breach thereof, and if the dispute cannot be settled
through negotiation, then the parties agree first to try in good faith, and before bringing
any legal action, to settle the dispute by mediation of a third party who will be selected
by agreement of the parties.
,~,
EXECUTED and EFFECTIVE as of the 30 day of
{"~CL~c~ ,20 OS .
CITY OF PEARLAND
Printed Name: Bi'Il Eisen
Title: C:i t,v Manager
By:ENGINEER ~~
Printed Name: // ~,z~/J/ro-C_~
Title: /' ~ ~
STATE OF TEXAS §
COUNTY OF ,/~.. "z-~,,-,~... §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
"-'-~'0,'/? ~'~$.~,"'-~ , known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he/she executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS 30 DAY OF
,~-rc.k , A.D., 20
STATE OF TEXAS
Printed Name:
My Commission Expires: .p,-~
STATE OF TEXAS
COUNTY OF/t~(~-¢~'5
~BEFORE ME, the undersigned Notary Public, on this day perso, nally appeared
the~ofor'e~/oing~)~n~trument and a'c~nno°wW~e~;er~et~° mb: tthJatP~°s~eWehx°eSceu~eaT~h~ ~;brnSeCrlfboerdt~°e
purposes and consideration therein expressed.
,~GIVEN UNDER MY HAND AND
~{ , A.D., 20 OT.
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SEAL Of OFFICE THIS ~¢*~.- DAY Of
!~:~"-' Notary Pubhc, State of Texas
lB ~,.~,.:_J My Commission Expires
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NOTARY PUBLIC IN AND FOR THE
STATE Of TEXAS
Printed Name: /'~/, ~~'o
My Commission Expires: ~IA~L '~ Z ~'
Tolunay-Wong Engineers, Inc.
10710 S. Sam HoustonPkwyW., Suite 100 * Houston, TX 77031 * 713-722-7064 * Fax 713-722-0319
Mr. Joe Wertz, Jr.
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
March 7, 2005
TWEI Proposal No.: P04-G080
PROPOSAL FOR GEOTECHNICAL STUDY
CITY OF PEARLAND MOBILITY AND DRAINAGE PROGRAM
MAGNOLIA/SOUTHFORK
PEARLAND, TEXAS
Dear Mr. Wertz:
Tolunay-Wong Engineers, Inc., (TWEI) is pleased to submit this proposal to provide geotechnical
services for the referenced project The project consists of constructing improvements to Magnolia, John Lizer
and Southfork to complete a four lane secondary thoroughfare running from Pearland Parkway to SH 288.
Project details were provided initially by Turner Collie & Braden, Inc. in a transmittal package dated
November 7, 2003 and in our meeting in your office on March 2, 2005. We understand that a geotechnical
study by others was performed for the magnolia portion between Veterans and SH 35 and therefore will not be
addressed In this proposal. TWEI issued a preliminary report for the referenced project on May 13, 2004.
This work scope will provide the additional necessary data to provide a final report.
Scope of Services
Our scope of services covered in this proposal will consist of field exploration, laboratory testing and
the preparation of a fmal geotechnical engineering report documenting our findings and geotechnical design
recommendations.
Field Exploration. We propose to drill six (6) 80-ft deep soil borings and nineteen (19) 25-ft deep
soil borings within the project site to evaluate the subsurface conditions. A total of 955 vertical ft drilling is
included. The boring program is summarized in the following table.
Magnolia Between Pearland Pkwy & Old Alvin 2 Q 25' 50
Veterans between Magnolia & Mary's Creek 1 Q 25' 25
McLean between Magnolia & Mary's Creek 1 Q 25'
105
McLean Q Mary's Creek 1 Q 80'
Magnolia between Veterans & McLean 2 Q 25' 50
Magnolia between McLean & Harkey 4 Q 25' 100
Harkey Q Mary's Creek lQ 80' 80
Magnolia Q Mary's Creek 2@ 80' 160
Magnolia between Mary's Creek & Morgan 10 Q 25' 250
Ditch Q WWTP site lQ 80' 80
Magnolia Bridge Q Ditch lQ 80' 80
TOTAL 980
Mr. Joe Wertz, Jr.
TWEI Proposal No.: P04-G080
March 7, 2005
Page 2
We will be responsible for staking boring locations at the project sites, checking the underground
utilities and preparing for traffic control during drilling.
Drilling will be performed in accordance with the appropriate ASTM procedures. We will obtain
representative portions of the recovered soil samples and transport them to our laboratory for testing. We will
backfill the open boreholes with the cuttings 24 hours after completion, and after obtaining Ire water-level
readings. We will provide an approximately 6 in. cement plug at the surface for borings that are drilled from
the pavement.
Laboratory. Testing. We will perform soil mechanics laboratory tests to measure physical and
engineering properties of selected representative soil samples. The testing will generally include measurement
of the shear strength, total unit weight, in sim moisture content, fmes content and plasticity characteristics of
the soils.
All laboratory tests will be performed in accordance with appropriate ASTM standards. We will keep
the samples for 30 days after the final report is presented. We will discard the samples after that time, unless
instructed otherwise.
Eneineerinl~ Reoort. Our engineering report will present our findings and provide you with
geotechnical design recommendations for the proposed improvements including:
Subsurface stratigraphy and groundwater conditions
Existing pavement thicknesses
Excavation retention and groundwater control
Pavement subgrade preparation
Concrete pavement design
Bridge embankments excavation and sideslope recommendations including slope stability
Drilled ShafLs foundation design recommendations for the proposed bridges
Foundation settlement estimates and construction criteria
Foundation design and construction recommendations for retaining wall foundations
· Sign, lighting and signal foundation recommendations
Bedding and backfill criteria for utility lines based on City of Houston requirements
Mr. Joe Wertz, Jr.
TWEI Proposal No.: P04-CJ080
March 7, 2005
Page 3
Budget
Our budget to perform the above listed services is included in the table included below:
1 Mobilization of TWEI personnel and drilling Job $300 $300
equipment
2 Coordination and Utility Clearance Job $400 400
3 Drilling and sampling of project borings
Soil sampling, per foot (0'-12) continuous, 13'-
15' & sampling on 5' intervals (15'-50') 800 l.f. 13.50/1.f. 10,800
Soil sampling on 5' intervals (50'-80') 180 l.f. 15.00fl.f. 2,700
Coring thc pavement 8 ea. 68.00/ea. 544
4 Traffic Control 32 hr 30.00/hr 960
5 Senior Engineer, P.E. 5 hr 105.00/hr 525
Engineering Technician 70 hr 45.50/hr 3,185
Subtotal 19,414
6 Laboratory testing
Water Content (ASTM D 2216) 240 7.00 1,680
Atterberg Limits (ASTM D 4318) 110 42.00 4,620
Percent Passing No. 200 Sieve (ASTM D
1140) 55 30.00 1,650
Sieve analyses including hydrometer analyses
(ASTM D 422) 5 130.00 650
Unconfined Compression (ASTM D 2166) 100 30.00 3,000
Unconsolidated Undrained (ASTM D 2850) 20 50.00 1,000
Consolidated Undrained Triaxial w/Pore
Pressure Measurements (ASTM D 4767) 6 450.00 2,700
Subtotal 15,300
7 Engineering and'support services
Principal, P.E. 4 hr 150.00/hr 600
Project Manager, P.E. 32 hr 105.00/hr 3,360
Project Engineer, E.I.T. 120 hr 85.00/hr 10,200
Draftsman 16 hr 40.00/hr 640
Word Processor 12 hr 35.00/hr 420
Subtotal 15,220
Total Budget Estimate $49,934
The cost for the geoteclmical study assumes that ingress and egress to the site and access'to the site is
provided by others. If it was deemed necessary to install piezometers due to encountering coh~sionless water
bearing soils during the drilling/sampling field work then we will contact you immediately to request
permission for the additional work. Piezometer(s) will be installed at an additional cc, st of $400.00 each w_hich
includes three water level readings over a period of 45 days and grouting once the project is completed.
Mr. Joe Wertz, Jr.
TWEI Proposal No.:
March 7, 2005
Page 4
P04-G080
Schedule
We can mobilize our drill crew within one week of project authorization. We can complete thc field
work in ten days and issue our engineering report within about forty-five working days after completion of the
field work. We can furnish you with verbal preliminary design information upon completion of the field work.
Acceptance of ProDosal
If you accept our proposal, please sign below and retum one copy to our office.
conditions of this proposal are included m Exhibit A.
The terms and
Closin~ Remarks
We appreciate opportunity to submit this proposal and look fonvard to serving you on this project.
Sincerely,
TOLUNAY-WONG ENGINEERS, INC.
D~'., P.E.
Accepted by:
Name:
Date:
Attachments: Exhibit A
FH/DOW
EXHIBIT A
TERMS FOR GEOTECHNICAL ENGINEERING SERVICES
THE AGREEMENT
This AGREEMENT is made by and between TOLUNAY-WONG ENGINEERS, INC., hereinafter referred to as GEOTECHNICAL
ENGINEER, and the CLIENT of the attached PROPOSAL. This AGREEMENT between the patties consists of these TERMS, the
attached PROPOSAL and any exhibits or attechments noted in the PROPOSAL will constitute the entire AGREEMENT. Any
chan4ges to this AGREEMENT must be mutually agreed to in writing.
STANDARD OF CARE
The CLIENT recognizesthat subsurface conditions 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 thc GEOTECHNICAL
ENGINEER will be based solely on information available to the GEOTECHNICAL ENGINEER. The GEOTECHNICAL
ENGINEER 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 the GEOTECHNICAL ENGINEER under this AGREEMENT are expected by the CLIENT to be conducted in
a manner consistent with the level of care and skill ordinarily exercised by members of the engineering profession practicing
contemporaneously under similar conditions in the locality of the project. No other warranty, expressed or implied, is made.
SITE ACCESS AND SITE CONDITIONS
CLIENT will grant or obtain free access to the site for all equipment and personnel necessmy for the GEOTECHNICAL ENGINEER
to perform the work set forth in this AGREEMENT. The CLIENT will notify any and all possessors of the project site that CLIENT
has granted GEOTECHNICAL ENGINEER free access to the site. The GEOTECHNICAL ENGINEER will take reasonable
precautions to minimize 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 is not part of this AGREEMENT unless so specified in the PROPOSAL.
SAMPLE DISPOSAL
The GEOTECHNICAL ENGINEER will dispose of all soil and reek samples 30 days after submission of report covering those
samples. Further storage ortransferofsamplescanbemadeatClient'sexpcnseuponCLIENT'S prior written request. AIl hazardous
materials will be returned to CLIENT for disposal, unless other arrangements have been made by CLIENT.
CONSTRUCTION MONITORING
If the GEOTECHNICAL ENGINEER is retained by the CLIENT to provide a site representative for the purpose of monitoring
specific portions of the construction work as set forth in the PROPOSAL then this phrase applies. For the specified assignment, the
GEOTECHNICAL ENGINEER will report observations and professional opinions to the CLIENT. No action of the
GEOTECHNICAL ENGINEER or GEOTECHNICAL ENGINEER's site representative can be construed as altering my
AGREEMENT between the CLIENT and others. The GEOTECHNICAL ENGINEER will report any observed work to the CLIENT
which, in the GEOTECHNICAL ENGINEER's professional opinion, does not conform with plans and specifications. The
GEOTECHNICAL ENGINEER has no right to reject or stop work of any agent of the CLIENT. Such rights are reserved solely for
the CLIENT. Furthermore, the GEOTECHNICAL ENGINEER's presence on site does not in any way guarantee the completion or
quality of the performance of the work of any party retained by the CLIENT to provide construction related services.
The GEOTECHNICAL ENGINEER will not be responsible for and will not have control or charge of specific means, methods,
techniques, sequences or procedures of construction selected by any agent or AGREEMENT oftbe CLIENT, or safety precautions
and programs incident thereto.
BILLING ,~ND PAYMENT
CLIENT will pay GEOTECHNICAL ENGINEER the lump sum amount indicated in the PROPOSAL or, if no lump sum amount is
indicated, in accordance with the Schedule of Fees, as shown in the PROPOSAL and its attachments. Invoices will be submitted to
CLIENT by GEOTECHNICAL ENGINEER, and will be due and payable upon presentation. If CLIENT objects to all or any portion
of any invoice, CLIENT will so notify GEOTECHNICAL ENGINEER 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.
Page 1 of 2
Invoices are delinquent if payment has not been r~eived within thirty (30) days from date of invoice. CLIENT will pay an additional
charge of 1-1/2 (1.5) percent per month (or the maximum percentage allowed by law, whichever is lower) on any delinquent mount,
excepting any portion ofthe invoiced amount in dispute and resolved in favor of CLIENT. Payment thercafter will first be applied to
accrued interest and then to the principal unpaid amount. All time spent and ex,rises incurred (including any attorney's fees) in
conn~tion with collection of any delinquent amount will be paid by the CLIENT to GEOTECHNICAL ENGINEER per
GEOTECHNICAL ENGINEER's current fee s~hedul¢. In the event CLIENT fails to pay GEOTECHNICAL ENGINEER within
sixty (60) days after invoices are rendered, CLIENT agrees that GEOTECHNICAL ENGINEER will have the right to consider the
failure to pay the GEOTECHNICAL ENGINEER's invoice as a breach of this AGREEMENT.
TERMINATION
Tho AGREEMENT may be terminated by either party seven (7) days after written notice. In the event of termination,
GEOTECHNICAL ENGINEER will be paid for services performed prior to the date of termination.
INDEMNIFICATION
Except for the gross negligence or intentional misconduct of the GEOTECHNICAL ENGINEER, CLIENT will indemnify and hold
the GEOTECHNICAL ENGINEER harmless from any claim by or liability from a third party for injury or loss, arising out of the
GEOTECHNICAL ENGINEER's performance of the services described in this AGREEMENT. This indemnity shall not limit, restrict
or prevent CLIENT from asserting any claims for liability against the GEOTECHNICAL ENGINEER, under any one or more theories
of r~covery, including breach of contract, negligence, strict or statutory liability or uny other cause of action
LIMITATION OF LIABILITY
The CLIENT will limit may and all liability or claim for damages, cost of defense, or expenses to be levied against
GEOTECHNICAL ENGINEER to a sum not to exceed $50,000, or the amount of his fee, whichever is greater, on account of
any design defect, error, omission, or professional negligence. The CLIENT agrees to notify any contractor who perform work
in connection with ~he study prepare! by the GE OTE CHNICAL ENGINE ER of such limitation of liability and require a like
limitation on their part in favor of the GEOTECHNICAL ENGINEER. In the event the CLIENT fails to obtain a llke
limitation of liability provision, the liability of the CLIENT and the GEOTECHNICAL ENGINEER to such eontr~fmr shall be
allocated between the CLIENT and the GEOTECHNICAL ENGINEER such that the aggregate liability of the
GEOTECHNICAL ENGINEER to all parties, including the CLIENT, shall not to exceed $50,000 or the amount of the
GEOTECHNICAL ENGINE ER's fee, whichever is greater. The GEOTECHNICAL ENGINEER makes no warranties, either
expressed or implied, except as set forth above.
DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS
CLIENT warrants a reasonable effort to inform GEOTECHNICAL ENGINEER of known or suspected hazardous materials on or near
the project site.
Hazardous materials may exist at a site where there is no reason to believe they could or should be present. GEOTECHNICAL
ENGINEER and CLIENT agree that the discovery of hazardous materials constitutes a changed condition mandating a renegotiation
of the scope of work or termination of services. GEOTECHNICAL ENGINEER and CLIENT also agree that the discovery of
hazardous materials may make it necessary for GEOTECHNICAL ENGINEER to take immediate measures to protect health and
safety. CLIENT agrees to compensate GEOTECHNICAL ENGINEER for any equipment decontamination or other costs incident to
the discovery of hazardous waste.
GEOTECHNICAL ENGINEER agrees to notify CLIENT when hazardous materials or suspected hazardous materials are
encountered, CLIENT agr~s to make any disclosures required by law to the appropriate governing agencies. CLIENT also agrees to
hold GEOTECHNICAL ENGINEER harmless for any and all consequences of disclosure made by GEOTECHNICAL ENGINEER
which are required by governing law. In the event the project site is not owned by CLIENT, CLIENT recognizes that it is tho
CLIENT's responsibility to inform the property owner of the discovery of hazardous materials or suspected hazardous materials.
Not withstanding any other provisions of the AGREEMENT, CLIENT waives any claim against GEOTECHNICAL ENGINEER, and
to the maximum extent permitted by law, agrees to defend, indemnify, and save GEOTECHNICAL ENGINEER harmless from any
claim, liability, and/or defense costs for injury or loss arising from GEOTECHNICAL ENGINEER's discovery of hazardous materials
or suspected hazardous materials including any costs created by delay of the project and any costs associated with possible reduction
of the property's value. CLIENT will be responsible for ultimate disposal of any samples secured by the GEOTECHNICAL
ENGINEER which are found to be contaminated.
GOVERNING LAW AND SURVIVAL
The law of the State of Texas will govern the validity of these TERMS, their interpretation and performance.
If any of the provisions contained in this AGREEMENT are hold illegal, invalid, or unenforcmble, the enforceability of the remaining
provisions will not be impaired. Limitations of liability and indemnities will survive termination of the AGREEMENT for any cause.
Page 2 of 2
DOCUMENT FILING REQUEST
RP-472
Description:.
Tolunay-Wong Engineers, Inc.
Type:
Engr. Svcs. Agmt.
Search String Parameters:
Magnolia Road Street Expansion
Requested By:
Robin Pitcock
Project Management
04/07/05
Authorized by:
Bill Eisen
Amount
$49,934.00
Reso #2005-60