Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
R2020-212 2020-10-26
RESOLUTION NO. R2020-212 A Resolution of the City Council of the City of Pearland, Texas, authorizing a Wetlands Mitigation Agreement with Berg Oliver & Associates, associated with the McHard Road Project, in the estimated amount of $277,000.00. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLANDI TEXAS: Section 'I. That certain contract for wetlands mitigation associated with the McHard Road Project, 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 for wetlands mitigation services associated with the McHard Road Project. PASSED, APPROVED and ADOPTED this the 26th day of O Faber_,_. .D., 2020. 1/GSM63G S�-K1'�t5 I AL KURN, I KMC:, C:M(_; CITY SECRETARY APPROVED AS TO FORM: 14)400� DARRIN M. COKER�'�-� CITY ATTORNEY P.Go 10. ek rrr CONTRACT FOR PROFESSIONAL SERVICES TINS CONTRACT is entered into upon final execution by and between the City of Pearland ("CITY") and Berg Oliver Associates, hic. ("CONSULTANT"), The CITY engages the CONSULTANT to perform professional services for a project known and described as McHard Extension ('PROJECT'). (Project # TR1405) SECTION I -SERVICES OF 'I'[IE CONSULTANT The CONSULTANT shall perform the fallowing professional services to CITY standards and in accordance with the degree of care and skill that a professional in Texas would exercise under the same or similar circumstances A. The CONSULTANT shall construct and monitor• wetlands for the mitigation of the McHard Road Extension project per the Individual Permit requirements. See Exhibit A, attached, for a detailed SCOPE OF WORK and PROJECT schedule. The PROJECT schedule shall be submitted in digital and hard copy form in the Microsoft Project for Windows format. B. The CONSULTANT shall prepare and submit a detailed opinion of estimated cost of the PROJECT. C. The CONSULTANT acknowledges that the CITY {through its employee handbook) considers the following to be misconduct that is grounds for ternninatio n of a CITY employee: Any fraud, forgery, misappropriation of funds, receiving payment for services not performed or for hours not worked, mishandling or untruthful reporting of money transactions, destruction of assets, embe2lement; accepting materials of value from vendors, or consultants, and/or collecting: reimbursement of expenses made for the benefit ofthe CITY. The CONSULTANT agrees that it -MR not, directly or indirectly, encourage a CITY employee to engage . in such misconduct. D. The CONSULTANT shall submit all final construction docrnnents in both hard copy and eleeironie format. Plans shall be AutoCAD compatrble and alt other documents shall be Microsoft Office compatible. The software version used shall be compatible to current CITY standards. Other support documents, for example, structural calculations, drainage reports and geotechnical reports, shall be submitted in hard copy only. Alt Record Drawings electronic files shall be submitted to the CITY in TIF format. E. The CONSULTANT recognizes that all drawings, special provisions, Feld survey notes, reports, estimates and any and all other documents or work product generated by the CONSULTANT under the CONTRACT shall be delivered to the CITY upon request, shall become subject to the Open Records Laws of this State. F. The CONSULTANT shall procure and maintain for the duration of this Agreement, instuance against clair2�s for injuries to persons, damages to property, or any errors Desig�i I of 7 D2. Revised 04J20I9 and omissions relating to the peiTonymice of any work by the CONSULTANT, its agents, employees or subcontractors under this Agreement, as follows: {1) Workers' Compensation as required by law. (2) Professional Liability Insurance in all amount not less il>tvi $1,000,000 in the aggregate. (3) Comprehensive General Liability and Properly 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 Insuu•ance covex�ng 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. Tlxe CONSULTANT shall inclade the CITY as an additional insured under the policies, with the exception of the .Professional Liability Insurance and Workers' Compensation: The CONSULTANT shall agree to waive its Right to Subrogation: Certificates of Insurance and endorsements shall be flirt shed to the CITY before work commences. Each insurance policy shall be endorsed to state that coverage ball not be suspended, voided, canceled, and/or reduced m coverage or in limits ("Change in Coverage') except with prior written consent of the CITY and only after the CITY has been provided with written notice of such Change in Coverage, such notice to be sent to the CITY either by -hand delivery to the City Manager or by certified mail, return receipt requested, and received by the City no fewer than thnty (30) days prior to the effective date of such Change in Coverage. Prior to commencing services under this CONTRACT, CONSULTANT shall furnish CITY with Certificates of Insurance, or formal endorsements as required by this CONTRACT, issued by CONSULTANT'S insurer(s), as evidence that policies providing the required coverage, conditions, and limits required by this CONTRACT are' full force and effect. G. Tlxe CONSULTANT shall indenuxify and hold the CITY, its officers, agents, and employees, hauynless fiom arty claim, loss, damage, suit, and liability of every kind for which CONSULTANT 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 CONSULTANT, his officers, employees, agents, or subcontractors under this CONTRACT. II. All parties irxtend that the CONSULTANT, in performing services pursuant to this CONTRACT, shall. act as an independent contractor and shall pave control of its own work and the manner in which it is performed. The CONSULTANT is not to be considered an agent or employee of the CITY. Design 2 of 7 D2 Revised 04/2019 SEC11ON II - PERIOD OI+ SERVICE This CONTRACT will be binding upon execution and end November 2025. SECTION AlI CONSULTANT'S COMPENSATION A. The total compensation for fhe services performed shall not exceed the total noted in Section B. B. The CITY shall pay the CONSULTANT in installments based upon monthly progress reports and detailed invoices submitted by the CONSULTANT based upon the following: 1. Basic Services (Lump Sum}, $277,000.00 2. Additional Services shall require independent and specific authorization and shall be billed as (Lump Sung); WOO 3. Bid Phase Services (Hourly Not to Exceed) $0.00 4. Construction P base Services (HourlyNotto Exceed) $0.00 5. Reimbursable Expenses (Not to Exceed) $0.00 6. Total: $277,000.00 C. The CITY shall make payments to the CONSULTANT within thirty (30) days after receipt and approval of a detailed invoice. Invoices shall be submitted on amonthly basis. D. CONSULTANT shall invoice for work performed during the preceding thirty day period (`Billing Period"). Tlie Billing Period shall run from the 26tt' day to the 2S' day of each consecutive month Invoices shall ' be submitted to CITY not more frequently than once every 30 days. CONSULTANT shall be responsible for timely submittal of all invoices and CONSULTANT shall not be entitled to payment for invoices in arrears. All invoices shall reflect most recent single Billing Period only and represent the true, correct and accurate account of work performed during the Billing Period. E. For an agreed contract amount identified as "Lump Sum", Not to Exceed" and "Reimbursable" the CONSULTANT sha11 not exceed the fixed contractual amaunt without written authorization in the form of a Contract Amendment. CONSULTANT shall provide 45 days prior notice to the CITY in the event contract fees may exceed the fi red contract amount. CONSULTANT shall be responsible for ensuring that such authorization is complete and executed by all parties performing any work or submitting any invoices for work that exceeds the fixed contract amount under any expense category. Desigi 3 of 7 D2 Revised Q4/2019 F. Allowable Reimbursable Expenses CONSULTANT shall identify and include in the proposal any anticipated Reimbursable Expenses, and shall itemize Reimbursable Expenses by work category. Reimbursable Expenses shall be invoiced_ AT COST without subsequent markup by the CONSULTANT. All invoices containing a request for Reimbursable Expenses shall include copies of the original expense receipts itemized per the allowable category. Allowable Reimbursable Expenses include: • Hard copy reproductions, copies and/ or binding costs • Postage • Mileage, for -travel from Consultant's local office (within a 25 wile radius) to meetings at the City or job site, Mileage shall be charged at the current IRS rates. • Travel expenses, mileage from Local office to State or federal regulatory agency office beyond 100 miles. • Lodging expenses, for destinations beyond 100 miles from the Consultant's local office AND when business hours exceed eight hours within one business day OR requees ' more than one eight hour day. F.2. Disallowed Expenses Disallowed Expenses include travel expenses for professional expertise traveling into the greater Houston area from Consultant offices outside of the greater Houston area. SECTION IV THE CITY'S RESPONSIBILITIES A. The CITY shall designate a project manager during the term of this CONTRACT. The project manager has the authority to administer tivs CONTRACT and shall monitor compliance with all terns and conditions stated herein. All requests for information from or a decision by the CITY on any aspect of the work shall be directed to the project manager. $. The CITY shall review submittals by the CONSULTANT and provide prompt response to questions and rendering of decisions pertaining thereto, to minimize delay in the progress of the CONSULTANTS work. The CITY will keep the CONSULTANT advised concerning the progress of the CITY'S review of the work. The CONSULTANT agrees that the CITY'S inspection, review, acceptance or approval of CONSULTANTS work shall not relieve CONSULTANT'S responsibility for errors or omissions of the CONSULTANT or its sub- constzltant(s) or in. any way affect the CONSULTANT'S status as an independent contractor of the CITY. p�ign 4 of 7 U2 Revised 04/2019 SEC I ION V - TE1tMINATION A, The CITY, at its sole discretion, may terminate this CONTRACT for any reason -- with or without cause �� by delivering written notice to CONSULTANT personally or by certified mail at Berg Oliver Associates, Inc., 14701 St. Mary's Lane, Suite 400, Houston, Texas 77079. Immediately alter receiving such written notice, the CONSULTANT shalt discontinue providing the services under this CONTRACT. B: If this CONTRACT is terminated, CONSULTANT sha11 deliver to the CITY all drawings, special provisions, field survey notes, reports, estimates and any and all other documents or work product generated by the CONSULTANT under the CONTRACT, entirely or partially completed, together with all unused materials supplied by the CITY on or before the 15t1' day following termination of the CONTRACT, C. In the event of such termination, the CONSULTANT shall be paid for services performed prior to receipt of the written notice of termination, The CITY shall make frnal payment within sixty (60) days after the CONSULTANT has delivered to the CITY a detailed invoice for services rendered and the documents or work product generated by the CONSULTANT under the CONTRACT. D. If the remuneration sclredtrled under this cor�ract is based upon a fixed fee or definitely ascertainable sum, the portion of such sum. payable shall be proportionate to the percentage of services completed by the CONSULTANT based upon the scope of work. E, In the event this CONTRACT is terminated, the CITY sball have the option of completing the work, or entering into a CONTRACT with another party for the completion of the work. F, If the CITY terminates this CONTRACT for cause and/or if the CONSULTANT breaches any provision of this CONTRACT, then the CITY shall have all rights and remedies in law and/or equity against CONSULTANT. Venue for any action or dispute arising out of or relating to this CONTRACT sha11 be >lr. Brazroria County, Texas. The laws of the State of Texas shall govern the terms of this CONTRACT. The prevailing party in the action shall be entitled to recover its actual damages with interest, attorney's fees, costs and expenses incurred in connection with the dispute and/or action. CONSULTANT and CITY desire an expeditious means to resolve any disputes that may arise between under 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 pursuing any legal remedies, to settle the dispute by mediation of a third party who will be selected by agreement of the parties. D�i� 5 of 7 D2 Revised 04/2019 SECTION VI —ENTIRE AGREEMENT This CONTRACT zepresenfs the entire agteeznent between the CITY and the CONSULTANT and supersedes alI pz7or negotiatioz>s, zepzesentations, or contracts, ezther written or oral. This CONTRACT tray be amended only by wzittezl insit�unezxt signed by both parties, SECTION VII —COVENANT AGAINST CONTINGENT + +ES The CONSULTANT affirms.that he 11as trot employed or retained any company or person, other than. a bona fide employee working for the CONSULTANT to solicit or secure this CONTRACT, and that he has not paid or agreed to pay any cotxtpany or person, ocher ilxatx a bona fide etx�ployee, any fee, cozxxmission, percentage brokerage fee, gill, or any other coz>Sideration, contingent upon or resulting from the award or malting of the CONTRACT. Iioz• breach or violation of this clause; the CITY may terrtxinate this CONTRACT withozzt liability, and in ifs discretion, may deduct from the CONTRACT price or consideration, or othezwise recover, the full amount of such fee, comtxxissioz�, percentage brokerage fee, gib:, or contingent fee that has been paid• • SECTION VIII� SUCCESSORS AND ASSIGNS This CONTRACT shall nat be assignable e�.cept upon the wzxtten consent of the parties hereto. CTI`Y TEXAS DATE /o— ate-~ �� ec2c+ Desigi 6 of 7 D2 Revised 04/2019 house dill uu VenTication i, Da�rid St�e>rili (person name), the undersigned representative (hereafter referred to as "Representative") of Berg"Oliver Associates Inc. 1111 a, (company or business name, hereafter referred to as `Business Entity"), being an adult over the age of eighteen (18) years of age, after being duly sworn by the undersigned notary, do hereby depose and affirm the following: 'I . That Representative is authorized to execute this verification on behalf of Business Entity; 2. That Business Entity does not boycott Israel and will not boycott Israel during the term of any contract that will be entered into between Business Entity and the City of Peariand; and 3. That Representative understands that the term "boycott Israel" is defined by Texas Government Code Section 2270.001 to mean refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israelkontrolled territory, but does not include an action made for ordinary business purposes. SI(3NATURE OF REPRESENTATIVE SUBSCRIBED ANf} SWORN TO BEFt3RE l�llE, the undersigned authority, on #his l 1"` day of�.. .__�-> > 20. Notary public pONNA W4Rt?Y My Notary ! q # ZA30854 t xpir9a January 0, 2022 Y?asigtt 7 of7 1]?.1.2.ovlsed 2018 Client#: 180F�0 I�LL��►[�_lLJ ACORDTr� CERTIFIL,TE OF LIABILITY INSURE-.NCE DATE (MM/DD/YYYY) 8/24/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorse If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). PRODUCER USI Southwest 9811 Katy Freeway, Suite 500 Houston, TX 77024 713 490-4600 INSURED LJA Engineering, Inc. **Additional Named Insureds Below** 3600 W Sam Houston Parkway S, Suite 600 Houston, TX 77042 COVERAGES CERTIFICATE NUMBER: Shelly Brandman/Michelle Weweh I): 713 490-4600 shelly.brandman@usi.com AFFORDING COVERAGE INSURER A :Hartford Casualty Insurance Company RER 8 : TeX2S MUtU81 IDSUYanCe NAIC # 22945 INsuRER C :Lexington Insurance Company 19437 INsuRER D :Hartford Fire Insurance Company 19682 E: Ii;�31L•T_�T� REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MM/DD/YYYY LIMITS A �( COMMERCIAL GENERAL LIABILITY 61UUNDD3469 9/01/2020 09/01/2021 EACH OCCURRENCE $1 OOOOOO CLAIMS -MADE � OCCUR PREMISESOEa occur ence $300 OOO X MED EXP (Any one person) $1 O OOO PD Ded :10,000 PERSONAL & ADV INJURY $1,000 OOO GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 POLICY � JECT � LOC PRODUCTS -COMP/OP AGG $2,000,000 OTHER: $ D AUTOM081LE LIABILITY 61 UENDD9226 9/01/2020 09/01/2021 COMBINED SINGLE LIMIT Ea accident 1 OOO OOO > > X ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED AUTOS ONLY AUTOS Deductible: BODILY INJURY (Per accident) $ X PROPERTY Per accident DAMAGE $ AUTOS ONLY X NON -OWNED AUTOS ONLY 1 O OOO $ � BI/PD $ /.� �( UMBRELLA LIAB X OCCUR 61XHUHH0569 9/01/2020 09/01/2021 EACH OCCURRENCE $1O OOO OOO EXCESS LIAB CLAIMS -MADE AGGREGATE $1 O OOO OOO DED X RETENTION $1 OOOO $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE Y / N OFFICER/MEMBER EXCLUDED? a N / A 0002002511 9/01/2020 09/01/2021 X Pam.... OTH- E.L. EACH ACCIDENT $1 OOO OOO (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $1 OOO OOO If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $1 OOO OOO C Professional 031565496 9/01/2020 09/01/2021 $5,000,000 per claim Liability $5,000,000 annl aggr. DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) **Additional Named Insureds**: Berg -Oliver Associates, Inc.; 14701 St. Marys Lane, Suite 400; Houston, TX 77079 Horizon Environmental Services, Inc.; 1507 South IH 35; Austin, TX 78741 (See Attached Descriptions) ERTIFICATE HOLDER City of Pearland 3523 Liberty Drive Pearland, TX 77581-0000 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2015 CORPORATION. All rights reserved. ACORD 25 (2016/03) 1 of 2 The ACORD name and logo are registered marks of ACORD #S29641879/M29633128 MCPZP DES A31PTIONS (Continued from ► ge 1) 1 LJA Infrastructure, Inc.; 2929 Briarpark Drive, Suite 600; Houston, TX 77042 LJA Rail, LLC; 2929 Briarpark Drive, Suite 320; Houston, TX 77042 LJA Surveying, Inc.; 2929 Briarpal k Drive, SuiteHouston, TX 77042 LJA Builds, Inc.; 2929 Briarpark Drive, Suite 320; Houston, TX 77042 LJA Environmental Services, LLC; 2929 Briarpark Drive, Suite 600; Houston, TX 77042 David C. Baldwin, Inc. dba DCBA Landscape Architecture; 730 E. Park Blvd; Plano, TX 75704 General Liability Maximum Annual Aggregate limit $10,000,000 All policies listed (except for Work Comp and Professional Liability) include an automatic Additional Insured that provides Additional Insured status to the Certificate Holder only when there is a written contract that requires such status, and only regarding work performed on behalf of the named insured per policy forms HG0001 09/16 (includes ongoing operations) & CG2038 04/13 (GL); HA9916 03/12 (AL); XL0003 09/16 (UL). Coverage provided on the General and Auto Liability is primary and non-contributory if required by a written contract executed prior to a loss. All policies listed provide a Blanket Waiver of Subrogation when required by written contract executed prior to a loss per policy forms HG0001 09/16 (GL); HA9916 03/12 (Auto); XL0003 09/16 (UL); and WC420304B (WC). The Umbrella Liability policy follows form to the underlying General, Automobile and Employers Liability policies. All policies listed include an endorsement providing that 30 days notice of cancellation for reasons other than nonpayment of premium and 10 days notice of cancellation for non-payment of premium will be given to the Certificate Holder by the Insurance Carrier, if required by written contract. Project: Water Lights Construction SAGITTA 25.3 (2016/03) 2 of 2 #S29641879/M29633128 6 � „ •ta, jlli a 8 4 5 Is ad As ! T in S MYka�1+a.Rd x z o ` � 7 t i Q � c �1' I � 0 it O �1I [1 i till+ti'rt`tifi jdF oil ;ice tt'�{?3+,a 'I II t z Is is WA .I I I I � j 'Cn w, I' tt ,.- t.l��fsl�ltittt�al.; ;(+ -fii`a '{Lsfral Ifi1,11t% isi yR� a tf• 6 I� 7t��'tltr'l;lti=it tb`r+3t{(t+9+{4 T ii tw�'aid t�(f'res Y if '% 4{{:rt S t� o f 40 U r � r r � ,I f i I BERG qwOLIVER ASSOCIATES, INC. Environmental Science & Land Use Consultants 14701 St. Mary's Lane, Suite 400, Houston, Texas 77079 (281) 589-0898 fax: (281) 589-0007 Houston 0 Dallas/ Fort Worth 0 www.bergoliver.com MEMORANDUM TO: Ms. Jennifer Lee EMAIL: JLee@�pearlandlx.gov FROM: Keith Morgan NO. OF PAGES: 13 (incl. cover) DATE: October 6, 2020 SUBJECT: Environmental Services Proposal , Dear Ms. Lee, Attached is our proposal/agreement for environmental services for the site discussed with our firm. Please review the proposal/agreement and, A acceptable, ekecute the agreement and return to us by fax at (281) 589-0007. We look forward to working with you and City of Pearland on this project. Thank you for considering Berg ♦ Oliver Associates, Inc. to assist you with your environmental planning. Sincerely, Keith Morgan Vice President Betg♦Oliver Associates, Inc. BOA212-11103N/L Opportunity #18-04947C01/19-03913 October 6, 2020 BERG V OLIVER ASSOCIATES, INC. Environmental Science & Land Use Consultants 14701 St. Mary's Lane, Suite 400, Houston, Texas 77079 (281) 589-0898 fax: (281) 589-0007 Houston 0 Dallas/ Fort Worth 0 www.bergoliver.com October 115 2019 (Revised October 6, 2020) City' of Pearland Ms. Jennifer Lee 3519 Liberty Drive Pearland, Texas 77581 Via email.• JLee(aa�earlandtx.gov Re: Proposal for Environmental Services for the proposed 7-acre Wetland Mitigation pact, for the McHard Road Extension Project, located in Brazoria County, Texas BOA21241103N/L Dear Ms. Lee: The following proposal is provided to City of Pearland (the "Client") for environmental services for an approximate 10.55 acre proposed mitigation tract, located 1.3 miles north of the McHard Road Extension project area, in Brazoria County, Texas. Berg*Oliver Associates, Inc. ("Berg* Oliver" or "BOA") will provide special attention to complete the work in a timely and professional manner. We will begin the assessment upon your acceptance and execution of this proposal. Berg♦ Oliver is proposing to provide the following services: Task I) Project Management (N-PM2), Task II) Wetland Construction (L-WC), Task III) Planting of Wetlands (L-PW), Task IV) Monitoring/Reporting and Transplant Survival Survey (TSS) (L-MON), and Task V) Noxious Species Control (L-HCS). Attachment A describes each service. PROJECT SCHEDULE The scope of work involved for within this proposal will beg* upon receipt of an executed proposal and boundary stuvey/plat, or other suitable boundary map by Berg � Oliver. Tasks I, III, IV and V will follow the schedule described in Attachment A. Task II is anticipated to be complete within one hundred twenty (120) calendar days and will follow the schedule described in Attachment A. The project completion schedule is the goal of all parties; it does not, however, reflect unusual delays due to forces beyond the control of Berg ♦ Oliver and/or modifications to the scope of work based upon actual findings or additional requests by City of Pearland, its agents, or governmental agency. RIGHT OF ENTRY Unless otherwise stated, it is assumed that the client has the authority to enter the property for purposes of conducting enviromnental assessments and herein grants that authority to Berg � Oliver. Bergh Oliver Associates, Inc. BOA212-11103N/L Opportunity #18-04947C01/19-03913 October 6, 2020 BASIC COMPENSATION AND METHOD OF PAYMENT Berge Oliver proposes to provide the environmental services described in Attaclmlent A to City of Pearland for the following lump sum amounts: TASK I: PROJECT MANAGEMENT.......................................................................................$5,000.00 TASK II: WETLAND CONSTRUCTION (7 acres).............................................................$155,500.00 SUB-TASI( A: CLEARING AND GRUBBING ($5,400 PER ACRE)...................................$37,800.00 SUB -TASK B: EXCAVATION AND BERM CONSTRUCTION ($16,800 PER ACRE),,........$117,700.00 TASK III: PLANTING OF WETLANDS................................................................................$81,000.00 TASK V: NOXIOUS SPECIES CONTROL............................................................................$10,500.00 GRAND TOTAL $277,000.00 If additional tasks require more than a 10%overage (as described above), Berg ®Oliver will provide the client with an appropriate change order. This cost estimate is valid for a period of six (6) months beyond the date shown below. After six (6) months, cost estimates may change due to fluctuations in fuel, subcontractors, and other sources required to complete the project. Berg o Oliver will begin the work described herein upon the execution of this proposal by the client. Invoices for each lump sun amomlt will be invoiced upon completion of the task or upon 50%, 15%, and 100% completion if the project takes longer than thirty (30) days to complete. Invoices for all hourly work will be submitted monthly and will be based upon the attached Rate Schedule in Attachment B. Payment of all invoices is expected within thirty (30) days of the client's receipt of the invoice submitted by Berg♦ Oliver. If invoice is not paid in full in thirty (30) days, interest will accrue at 1.5% per month (18% per annum). CONFIDENTIALITY OF ASSESSMENT The assessment and all related work and services of Berg®Oliver Associates, Inc. are confidential. Berg o Oliver Associates, Inc. is hereby employed by City of Pearland pursuant to this contract. Under such contract relationship, all correspondence, written or oral, which relates to the findings of this study are, to the extent permitted by law, strictly confidential between the parties hereto, unless Berg♦ Oliver Associates, Inc. receives a written request fiom the client to offer the results of this study to a third party not a part of this a greement/proposal. Environmental assessments may occasionally uncover extremely sensitive findings. It is the responsibility of Berg ♦ Oliver Associates, Inc. to report these findings to the authorizing client and to no other party. Berg � Oliver Associates, Inc. BOA212-11103N/L Opportunity # 18-04947C01 /19-039 ] 3 October 6, 2020 PROPOSAL ACCEPTANCE AND EXECUTION Berg+Oliver shall be authorized to commence the Services upon execution of this Agreement. Client and Berg o Oliver agree that this Agreement and attachments herein incorporated by reference (the "Agreement") constitute the entire agreement between them relating to this proposal. The signatory below also represents that the client has, or has secured, the authority to grant permission for Berg o Oliver personnel to enter the subject property as necessary to conduct these assessments and that such permission is granted to Berg* Oliver by the execution of this agreement/proposal. If the client is a Corporation or a Partnership, then the signature below will also represent the personal guarantee of the individual signing on behalf of the Client. This Agreement contains a limitation of liability clause and the Client has read and consents to all terms. IN WITNESS THEREOF, City of Pearland and Berge0liver Associates, Inc. have accepted and executed this proposal for environmental services on this the 2°I "^ day of DCJ'O 6e✓ 2020. CITY OF PEARL,AND By: BERG�OLIVER ASSOCIATES, INC. By: Keith Morgan Vice President Attachments: A —Scope of Worlc B — Personnel Rate Sheet C — General Conditions for Services Berg♦ Oliver Associates, Inc. BOA212-11103N/L Opportunity #18-04947C01 /19-03913 October 6, 2020 ATTACHMENT A TASK I PROJECT MANAGEMENT SCOPE OF WORK Berg101iver will coordinate the construction, planting, monitoring, "Ald noxious species control of the 7- acre wetland mitigation area. BergoOliver will provide consulting services that will include, but not be limited to the following: project coordination; communicating with the client to expedite completion of the project; determining and evaluating options with the client; attending meetings with the client, as necessary; and provide recommendations. TASK II WETLAND CONSTRUCTION (7 ACRES) SCOPE OF WORK BergoOliver will construct 7 acres of wetlands within a 10.55-acre area located off -site based upon the wetland mitigation plan that was approved in the Individual Permit. Berg o Oliver will clear the 7 acres of wetland area to be created and a spoil/berm area which will be used to locate the excavated material. The spoil/berm area will be located down -gradient of the constructed wetland area. The 7 acres of wetland area will be excavated to an average depth of approximately 1.0' below natural grade. When full, the wetland area will hold between 0.5 feet and 1.0 feet of water. TASK III PLANTING OF WETLANDS (7 ACRES) SCOPE OF WORK Berg ♦Oliver, through subcontract, will plant the seven -acre wetland on 4 - 5-foot centers with 19,000 mature sprigs of pickerel weed, soft -rush, square stem spike-rush, or other desirable wetland plants. The planting should be completed within sixty (60) days of notification that the wetlands are ready to be planted, weather permitting. TASK IV MONITORING/REPORTING AND TSS SURVEY SCOPE OF WORK Conduct Quarterly Monitoring & Reporting: A condition of the wetland mitigation in the permit requires quarterly monitoring and reporting to the U.S. Army Corps of Engineers (USAGE) for the first year. After the first year, monitoring is generally required annually for a total period of five (5) years based upon permit conditions. A condition of the perinit is to maintain the mitigation area free of noxious invasive species, along with maintaining hydrological structures and re -seeding if necessary. The Maintenance of the mitigation area will be the i4esponsibility of the City of Pearland The Monitoring/Reporting to be performed by Berg o Oliver personnel consists of biologic assessments of the progress of wetland development and vegetative succession and reporting the progress to the USACE. Once minimum success criteria is achieved, any remaining monitoring work will cease and the client will not be invoiced for any future monitoring. Submit Transplant Survival Survey (TSS) to USAGE following completion of the planting of constructed wetland shelves. The TSS methodology will be drafted to include transect sampling to determine the survivability of planted plants, per the USACE Permit. This is separate from quarterly and annual monitoring, which is also required under the mitigation plan. Berg ♦Oliver Associates, Inc. BOA212-11103N/L Opportunity #18-04947C01/19-03913 October 6, 2020 Site reconnaissance for the initial survey will be conducted within seven (7) days following completion of the planting to determine a baseline count of transplanted plants. A report will be provided documenting the baseline conditions. Site reconnaissance will be duplicated forty-five (45) days following the initial survey to determine the number and percentage of plants that have survived. A written report will be drafted that will include a site map, field data, and site photographs, which will compare thebaselinecount of plants to the number of plants which are alive. The report will be drafted and submitted to the City of Pearland for approval prior to submission to the USACE. The TSS must be submitted to the USACE within sixty (60) to ninety (90) days following completion of planting. ITEM QUANTITY PRICE Quarterly Monitoring and 4 $2,500.00 per quarter for Year 1 Reporting ($10,000.00) Annual Monitoring 4 $1,800.00 per year for Years 2-5 and Reporting ($10,000.00) TSS 2 $2,500.00 per visit ($55000.00) Total for Monitoring/Reporting and TSS: $25 000.00 TASK V NOXIOUS SPECIES CONTROL SCOPE OF WORK Maintenance consists of keeping the 7 acres of wetlands free of noxious invasive species, such as Chinese tallow and black willow, per the permit requirements. Berg ® Oliver will remove 'invasive species by hand and/or apply approved herbicides to invasive plants by a licensed herbicide applicator. Removal and Herbicide Applications will be performed three (3) times a year for the Pt year and one time per year for years 2-5. Berg/Oliver recommends removing invasive plants in April, June, and September. A total of seven (7) applications at $1,500.00 per application will be perfonned under this task, If maintenance removal of noxious species is not needed due to the lack of noxious species, Berg e Oliver will not perform the task and will not invoice the client. Berg � Oliver Associates, Inc. BOA212-11103N/L Opportunity #18-04947C01/19-03913 October 6, 2020 TTACHMENT B BERG 4V UM VEX ASSOCIATES, INC. Environmental Science & Land Use Consultants 14701 St. Marys Lane, Suite 400, Houston, Texas 77079 (281) 589-0898 fax: (281) 589-0007 Houston 0 Dallas/ Fort Worth 0 www.berizoliver.com 2019-2020 PERSONNEL RATE SCHEDULE Personnel Hourly Billing Rate Principal $235.00 Project Director $215600 Senior Associate $190600 Sr. Public Involvement Specialist $190.00 Senior Project Manager $185.00 Project Manager/Registered Environmental Manager $180.00 Professional Geologist $180000 Health/Safety Officer/Chemist $180,00 Sr. NEPA Specialist $170400 Project Coordinator II $155.00 Sr. Wetland Biologist/Ecologist $150.00 Project Coordinator 1 $140.00 Jr. Public Involvement Specialist $130.00 Wetlands Biologist/Ecologist $130.00 Soil Scientist/Geologist $130.00 Senior GIS Analyst / UAV Pilot $130.00 GIS Analyst $110000 Field Technician $95.00 In -House Technician/Administrator $105900 CADD Sr. Analyst $130.00 CADD Analyst $110.00 Administative/Word Processing $65.00 Specialist Subcontractors Cost + 15% Above rates include all normal expenses of BOA's business, including mailing charges, in-house photocopying, long distance telephone costs, in-house graphic systems, and local area travel, unless otherwise stated in the agreement. Expenses, such as travel beyond fifty (50) miles, outside photocopying, delivery charges, photographic reproduction, and other outside services, are considered reimbursable by the client at rate of cost +15%. Any extraordinary reimbursable expenses, in excess of $250.00 must have authorization from the client. NOTE: The rate schedule is for the current fiscal year, with an effective date of January 1. Hourly rates are adjusted annually as inflation dictates. If this contract spans more than one fiscal year (ending December 31), hourly rates maybe adjusted. Regardless of any rate adjustment, the "not to exceed" figures in a contract will not change. Berg + Oliver Associates, Inc. BOA212-11103N/L Opportunity # 18-04947C01 /19-03913 October 6, 2020 ATTACHMENT C GENERAL CONDITIONS FOR SERVICES Article 1: Services by BOA 1.1 Standard of care. BOA will perform the scope of services expressly described in this Agreement, after it is signed by both parties. The services performed by BOA will be conducted in a manner consistent with the degree of care and skill ordinarily exercised by competent consultants performing the same or similar services in the same locale acting under similar circumstances and conditions. L2 Restoration. BOA will exercise reasonable care to minimize damage to the site. However, Client acknowledges that some damage may occur in the normal course of performing the services, even if due care is exercised, and agrees that BOA will not be liable for such damage and will be entitled to additional compensation if it is asked to perform restoration services not expressly included in the scope of services. 1.3 Reports and Investigations. If BOA's performance of the services includes assessment, identification, or testing services, the number of investigations and observations BOA makes, the number of samples it collects, or the number of tests it performs are necessarily limited by budgetary and time constraints, and observations and samples by their specific locational nature may not exactly represent similar samples or observations in the immediate vicinity. BOA does not guarantee that all violations, problems, or sources of possible environmental condition will be identified, that all contaminants or environmental condition will be detected/identified, or that requirements, standards, or conditions will not change over time. Any report issued by BOA will set forth its findings and conclusions based on the limited information available from the observations, investigations, sampling, and/or testing conducted under this Agreement. In preparing its report, BOA may review and interpret information provided by Client, third parties, and regulatory agencies and will be entitled to rely on the accuracy of such information, including laboratory results, without performing an independent verification. BOA may include in its report a Statement of Limitations describing the limitations of its investigations and findings and indicating that the report is for Client's use only and will not be relied upon by any third party, except as expressly agreed in writing by BOA, and then only at such third parry's own risk. IA Documents. All reports and documents prepared and deliverable to Client pursuant to this Agreement will become Client's property upon full payment to BOA. BOA may retain file copies of such deliverables. All other reports, notes, calculations, data, drawings, estimates, specifications, and other documents and computerized materials prepared by BOA are instruments of BOA's services and will remain BOA's property. All deliverables provided to Client are for Client's use only for the purposes disclosed to BOA, and Client will not transfer them to others or use them or permit them to be used for any extension of the services or any other project or purpose, without BOA's express written consent. 1.5 Services not included. Unless expressly included in the scope of services, BOA's services will not include the following: (a) the detection, removal, treatment, transportation, disposal, monitoring, or remediation of any contamination of soil or groundwater at the site by petroleum or petroleum products (collectively called "oil") or hazardous, toxic, radioactive, or infectious substances, including any substances regulated under RCRA or any other federal, state, or local environmental laws, regulations, statutes, rules, standards, or ordinances (collectively called "Hazardous Materials"); (b) mechanical compaction of backfill; (c) dewatering before installation or filling tanks with liquid or ballast following installation; (d) pump -out or disposal of product, water, or other contents from existing tanks; (e) installation of anchor systems, foundations, shoring, or other support devices; (f) concrete, blacktop, water, sewer, electricity, or other outside services; (g) the removal of any soil or water; (h) installation of protective fencing or other structure; or (i) construction or monitoring. BOA will be entitled to additional compensation if it is asked to perform or provide such services listed above. BOA will not be responsible for damage to or imperfections in any concrete slabs it installs unless they are protected by Client from traffic for seven days. 1.6 Estimates. Any estimates of probable construction or implementation costs, financial evaluations, feasibility studies, or economic analyses prepared by BOA will represent its best judgement based on its experience and available information. However, Client recognizes that BOA has no control over costs of labor, materials, equipment, or services furnished by others or over market conditions or contractors' methods of determining prices. Accordingly, BOA does not guarantee that proposals, bids, or actual costs will not vary from opinions, evaluations, or studies submitted by BOA. 1.7 Other Contractors. Except to the extent expressly agreed in writing, BOA will not have any duty or authority to direct, supervise, or oversee any contactors of Client or their work or to provide the means, methods, or sequence of their work or to stop their work. BOA's services and/or presence at a site will not relieve others of their responsibility to Client or to others. BOA will not be liable for the failure of Client's contractors or others to fulfill their responsibilities, and Client agrees to indemnify, hold harmless, and defend BOA against any claims arising out of such failures. 1.8 Litigation support. BOA will not be obligated to provide expert witness or other litigation support related to its services, unless expressly agreed in writing. In the event BOA is required to respond to a subpoena, government inquiry, or other legal process related to the services in connection with a proceeding to which it is not a party, Client Berg + Oliver Associates, Inc. BOA212-11103N/L Opportunity # 18-04947C01 /19-03913 October 6, 2020 will reimburse BOA for its costs and compensate BOA at its then standard rates for the time it incurs in gathering information and documents and attending depositions, hearings, and the like. 1.9 Warranty. If manufactured products are purchased by BOA and furnished to Client or incorporated into the work, BOA will assign to Client any warranties provided by the manufacturer, to the extent they are assignable, and Client's sole resource will be against the manufacturer. NO FURTHER WARRANTIES OR GUARANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. Full risk of loss of materials and equipment furnished by BOA will pass to Client upon their delivery to Client's premises, and Client will be responsible for protecting them against theft and damage. However, until BOA is paid in full, it will retain title for security purposes only and the right to repossess the materials and equipment. Article 2: Responsibilities of Client 21 Client requirements. Client, to the best of its ability, without cost to BOA, will: (a) Designate to BOA a person to act as Client's representative; (b) Provide or arrange for access and make all provisions for BOA to enter any site where services are to be performed; (c) Furnish BOA with all reasonably available information pertinent to the services; (d) Furnish BOA with a legal description of the site and all available surveys, site plans, and relevant information about site conditions, topography, boundaries, easements, zoning, land use restrictions, and right-of-ways, if available and as needed; (e) Furnish BOA with all approvals, permits, and consents required for performance of the services except for those BOA has expressly agreed in writing to obtain; (f) Notify BOA promptly of all known or suspected Hazardous Materials at the site, of any contamination of the site by Oil or Hazardous Material, and of any OTHER CONDITIONS REQUIRING SPECIAL CARE, and provide BOA with any available documents describing the quantity, nature, location, and extent of such materials, contamination, or conditions; (g) Comply with all laws and provide any notices required to be given to any government authorities in connection with the services, except for such notices BOA has expressly agreed in writing to give; (h) Before commencement of any drilling or excavation at a site, furnish BOA with a complete description (to the best of their ability) of all underground objects and structures at the site, including, but not limited to, wells, tanks, and utilities; and indemnify, hold harmless, and defend BOA against claims arising out of damages to underground objects or structures not properly defined; (i) Provide BOA with information concerning prior owners of the site and any current or historical uses of or activities on the site by Client, prior owners, or others, as needed; (j) Furnish to BOA any known contingency plans related to the site; and (k) Furnish to BOA any previous environmental audits and/or assessments related to the site. 2.2 Hazards. Client represents and warrants that it does not have any knowledge of Hazardous Materials or Oil, or unusually hazardous conditions at the site or of contamination of the site by Oil or Hazardous Materials except as expressly disclosed to BOA in writing. 2.3 Confidentiality. Client acknowledges that the technical and pricing information contained in this Agreement is confidential and proprietary to BOA and agrees not to disclose it or otherwise make it available to others without BOA's express written consent. 2.4 Health and safety. Client acknowledges that it is now and will at all times remain in control of the project site, and Client acknowledges and agrees that it retains title to all conditions existing on the site and shall report to the appropriate public agencies, as required, any conditions at the site that may present a potential danger to the public health, safety, or the environment. Client waives any claim against BOA for injury or loss arising from such conditions. Except as expressly provided herein, BOA will not be responsible for the adequacy of the health or safety programs or precautions related to Client's activities or operations, Client's other contactors, the work of any other person or entity, or Client's site conditions. BOA will not be responsible for inspecting, observing, reporting, or correcting health or safety conditions or deficiencies of Client or others at Client's site. So as not to discourage BOA from voluntarily addressing health or safety issues while at Client's site, in the event BOA does address such issues by making observations, reports, suggestions, or otherwise, BOA will nevertheless have no liability or responsibility arising on account thereof. Client agrees to indemnify, hold harmless, and defend BOA to the fullest extent permitted by law against any and all claims arising out of such programs, activities, conditions, or deficiencies unless BOA is responsible for gross negligence with regard to its work. Berg e Oliver Associates, Inc. BOA212-11103N/L Opportunity # 18-04947C01 /I 9-03913 October 6, 2020 Article 3: Changes; Delays; Excused Performance 3.1 Changes. Unless this Agreement expressly provides otherwise, BOA's proposed compensation represents its best estimate of the costs, effort, and time it expects to expend in performing the services based on its reasonable assumption of the conditions and circumstances under which the services will be performed including, but not limited to, those stated in Section 3.2. As the services are performed, conditions may change or circumstances outside BOA's reasonable control (including changes of law or regulatory policy) may develop that would require BOA to expend additional costs, effort, or time to complete the services, in which case BOA will notify Client, and an equitable adjustment will be made to BOA's compensation. In the event conditions or circumstances require the services to be suspended or terminated, BOA will be compensated for services previously performed and for costs reasonably incurred in connection with the suspension or termination. 3.2 Assumptions. Unless specified in writing, BOA's compensation is based on the assumption that: (a) there is no impact spoil or excavation of natural resources on or adjacent to the site that has not been disclosed to BOA by the client; (b) there is no contamination of soil or groundwater at the site by Oil or Hazardous Materials that has not been disclosed to BOA by Client, (c) BOA will not encounter any underground structures, utilities, boulders, rock, water, running sand, or other unanticipated conditions in the course of drilling or excavation; (d) tank installations will not require dewatering by BOA; and (e) if BOA's scope of services includes services related to petroleum facilities or storage tanks, groundwater will not cause tanks to float or require the use of Ballast. BOA will be compensated for any additional efforts expended or costs incurred in addressing such conditions. 3.3 Force majeure. BOA will not be responsible for any delay or failure of performance caused by fire or other casualty, labor dispute, government or military action, transportation delay, inclement weather, Act of God, act or omission of Client or its contractors, failure of Client or any government authority to timely review or to approve the services or to grant permits or approvals, or any other cause beyond BOA's reasonable control. In the event of such delay or failure, the time for performance will be extended by a period equal to the time lost plus a reasonable recovery period, and the compensation will be equitably adjusted to compensate for any additional costs BOA incurs due to any such delay. 3A Disputes. If any claim or dispute arises out of this Agreement or its performance, the parties agree to endeavor in good faith to resolve it equitably through negotiation or, if that fails, through nonbinding mediation under the rules of the American Arbitration Association, before having recourse to the courts. However, prior to or during negotiation or mediation, either party may initiate litigation that would otherwise become barred by a statute of limitation, and BOA may pursue any property liens or other rights it may have to obtain security for the payment of its invoice. Article 4: Compensation 4.1 Rates. Unless otherwise agreed in writing, BOA will be compensated for its services at its standard rates and will be reimbursed for costs and expenses (plus reasonable profit and overhead) incurred in its performance of the services. 4.2 Invoices. BOA may invoice Client on a monthly or other progress billing basis. Invoices are due and payable upon receipt by Client. On amounts not paid within 30 days of invoice date, Client will pay interest from invoice date rmtil payment is received at the lesser of 1.5% per month or the maximum rate allowed by law. If Client disagrees with any portion of an invoice, it will notify BOA in writing of the amount in dispute and the reason for its disagreement within 21 days of receipt of the invoice, and will pay the portion not in dispute. 4.3 Suspension, etc. BOA may suspend or terminate the services at any time if payment is not received when due and will be entitled to compensation for the services previously performed and for costs reasonably incurred in connection with the suspension or termination. 4.4 Collection. Client will reimburse BOA for BOA's costs and expenses (including reasonable attorneys' and witnesses' fees) incurred for collection under this Agreement. 4.5 Taxes, etc. Except to the extent expressly agreed in writing, BOA's fees do not include any taxes, excises, fees, duties, or other government charges related to the goods or services provided under this Agreement, and Client will pay such amounts or reimburse BOA for any amounts it pays. If Client claims that any goods or services are subject to a tax exemption or direct payment permit, it will provide BOA with a valid exemption or permit certificate and indemnify, defend, and hold BOA harmless from any taxes, costs, and penalties arising out of the use or acceptance of same. Article 5: Insurance and Allocation of Risk 5.1 Insurance. LJA will maintain insurance coverage for Professional Liability, Cornrnercial Liability, Auto, and Workers' Compensation in amounts in accordance with legal and business requirements. Cercates evidencing such coverage will be provided to Client upon request. For Projects involving construction, Client agrees to require its construction contractor, if any, to include LJA as an additional insured on its policies relating to the Project. LJA's coverages referenced above shall, in such case, be excess over any contractor's primary coverage. Berg + Oliver Associates, Inc. BOA212-11103N/L Opportunity #18-04947C01/19-03913 October 6, 2020 5.3 BOA indemnification. To the fullest extent permitted by law, BOA shall indemnify and hold harmless Client from and against loss, liability, and damages sustained by Client, its agents, employees, and representatives by reason of injury or death to persons or damage to tangible property to the extent caused directly by BOA's the failure to adhere to the standard of care described herein 5A Limitation of liability. No employee or agent of BOA shall have individual liability to Client. BOA's aggregate liability for any and all claims arising out of this Agreement or out of any goods or services furnished under this Agreement, whether based in contract, negligence, strict liability, agency, warranty, tort, trespass, or any other theory of liability, will be limited to $10,000 or the total compensation received by BOA from Client under this Agreement, whichever is the lesser. In no event will BOA be liable for special, indirect, incidental, or consequential damages, including commercial loss, loss of use, or lost profits, however caused, even if BOA has been advised of the possibility of such damages. Any claim will be deemed waived unless made by Client in writing and received by BOA within one year after completion of the services with respect to which the claim is made. 5.5 Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST REVENUES, PROFITS, DELAYS, OR OTHER ECONOMIC LOSS ARISING FROM ANY CAUSE INCLUDING BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER CAUSE WHATSOEVER, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, REGARDLESS OF LEGAL THEORY, BOA SHALL BE LIABLE ONLY TO THE EXTENT THAT ANY DAMAGES SPECIFIED HEREIN ARE FOUND BY A FINAL COURT OF COMPETENT JURISDICTION TO HAVE BEEN THE SEVERAL LIABILITY OF BOA. TO THE EXTENT PERMITTED BY LAW, ANY STATUTORY REMEDIES THAT ARE INCONSISTENT WITH THIS PROVISION OF THE AGREEMENT ARE WAIVED. 5.6 Employee injury. Client agrees not to impede or to bring an action against BOA based on any claim or personal injury or death occurring in the course or scope of the injured or deceased person's employment with BOA and related to the services performed under this Agreement. 5.7 Defense. Any defense of BOA required to be provided by Client under this Agreement will be with counsel selected by BOA and reasonably acceptable to Client. Article 6: Hazardous Materials Provisions 6.1 Hazardous Materials. Except to the extent expressly agreed in wrng, BOA's services do not include directly or indirectly performing or arranging for the detection, monitoring, handling, storage, removal, transportation, disposal, or treatment of petroleum or petroleum products (collectively called "Oil") or of any hazardous, toxic, radioactive, or infectious substances, including any substances regulated under RCRA or any other federal or state environmental laws (collectively called "Hazardous Materials"). The discovery or reasonable suspicion of Hazardous Materials or hazardous conditions at a site where BOA is to perform services or of contamination of the site by Oil or Hazardous Materials not previously disclosed to BOA in writing will entitle BOA to suspend its services immediately, subject to mutual agreement of terms and conditions applicable to any further services, or to terminate its services and to be paid for services previously performed. In no event will BOA be required or construed to take title, ownership, or responsibility for such Oil or Hazardous Materials. 6.2 Manifests. In the event that the scope of services includes the remediation of any Oil or Hazardous Materials, before BOA removes fi•om a site any Oil or Hazardous Materials, Client will sign any required waste manifests in conformance with all DOT and other government regulations, listing Client as the generator of the waste. If someone other than Client is the generator of the waste, Client will arrange for such other person to sign such manifests. BOA will not directly or indirectly assume title to or own or be deemed to possess any materials handled or removed form any site, includingOil or Hazardous Materials. Nothing in this Agreement will be construed to make BOA a "generator" as defined in RCRA or any similar laws governing the treatment, storage, or disposal of waste. Except to the extent BOA's responsibilities expressly include identification of the waste, Client will provide waste material profiles, which accurately characterize the waste. If the services include transportation of Hazardous Materials or Oil, BOA may evaluate and recommend possible disposal sites for Client's use. However, under RCRA and CERCLA, the client, as generator, has ultimate responsibility for selection of the disposal site. Client acknowledges and agrees that it will evaluate and select the proper disposal site and be solely responsible therefore. 6.3 Hazardous Materials indemnification. Client acknowledges that BOA does not have any responsibility for preexisting Oil and Hazardous Materials at the site, any resultant contamination there from, or, except as expressly agreed in writing, for previous detection, monitoring, handling, storage, transportation, disposal, or treatment, that BOA's compensation is not commensurate with the unusually high risks associated with such materials, and that insurance is not reasonably available to protect against such risks. Therefore, for separate consideration of $10 and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and in addition to the Berg + Oliver Associates, Inc. BOA212-11103N/L Opportunity #18-04947C01 /19-03913 October 6, 2020 indemnification provided in Section 5.2, Client agrees to indemnify, hold harmless, and defend BOA against all damages arising out of or related to Oil or Hazardous Materials located at or removed from the site, including damages such as the cost of response or remediation arising out of application of common law or statues such as CERCLA or other "Superhmd" laws imposing strict liability. Article 7: Miscellaneous Provisions 7.1 Confidential information. Although BOA generally will not disclose without Client's consent information provided by Client or developed by BOA in the course of its services and designated by Client as confidential (but not including information which is publicly available, is already in BOA's possession, or obtained form third parties), BOA will not be liable for disclosing such information if it in good faith believes such disclosure is required by law or is necessary to protect the safety, health, property, or welfare of human beings. BOA will advise Client (in advance, except in emergency) of any such disclosure. 7.2 Notices. Notices between the parties will be in writing and will be hand delivered or sent by certified mail or acknowledged telefax properly addressed to the appropriate party. 7.3 Assignment, etc. Neither the Client nor BOA will assign or transfer any rights or obligations under this Agreement, except that BOA may assign this Agreement to its affiliates and may use subcontractors in the performance of its services. Nothing contained in this Agreement will be construed to give any rights or benefits to anyone other that the Client and BOA, without the express written consent of both parties. The relationship between Client and BOA is that of independent contracting parties, and nothing in this agreement or the parties' conduct will be construed to create a relationship of agency, partnership, or joint venture. 7A Governing Law, Venue, and Headings. This Agreement will be governed by and construed in accordance with the laws of the State of Texas,without giving effect to any conflict or choice of law rules or principles under which the law of any other jurisdiction would apply. Each party hereby submits to the jurisdiction of the federal and state courts located in Brazoria County and agrees that such courts shall be exclusive forum and venue for resolving any legal suit, action or proceeding arising out of or relating to this Agreement. The headings in. this Agreement are for convenience only and are not a part of the agreement between the parties. 7.S Survival. All obligations arising prior to this Agreement and all provisions of this Agreement allocating responsibility or liability between the parties will survive the completion of the services and the termination of this Agreement. 7.6 Entire agreement. This Agreement supersedes all prior agreements and, together with any work release document issued under this Agreement and signed by both parties, constitutes the entire agreement between the parties. Any amendments to this Agreement will be in writing and signed by both parties. In no event will the printed terms on any purchase order, work order, or other document provided by Client modify or amend this Agreement, even if it is signed by BOA, unless BOA signs a written statement expressly indicating that such terns supersede the terms of this Agreement. In the event of an inconsistency between these General Conditions and any other writings, which comprise this Agreement, the other writings will take precedence. Berg � Oliver Associates, Inc. BOA212-11103N/L Opportunity # 18-04947C01 /19-03913 October 6, 2020 Sub -Contractor Schedule, BOA Proposal BOA212-11103N/L McHard Road Mitigation Construction and Monitoring Task Sub -Contractor Contract Amount I1 Wetland Construction JNM Services, Inc. $155,500.00 III Planting of Wetlands JNM Services, Inc. $8100.00 V Noxious Species Control JNM Services, Inc. $105500000 Task Prime Contractor Contract Amount I Project Management Berg -Oliver Associates, Inc. $5,000.00 IV Monitoring/Reporting & TSS Survey Berg -Oliver Associates, Inc. $253000400 Total Contract Amount $277,000.00