R2006-112 07-24-06
RESOLUTION NO. R2006-112
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A CONTRACT FOR MATERIAL TESTING SERVICES
ASSOCIATED WITH THE CORRIGAN SUBDIVISION DRAINAGE
IMPROVEMENTS.
~E IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for material testing services, a copy of which is
~ttached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby
~uthorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
~nd the City Secretary to attest a contract for material testing services.
PASSED, APPROVED and ADOPTED this the 24th day of July, A.D., 2006.
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TOM REID
MAYOR
~TTEST:
APPROVED AS TO FORM:
D~)(_M,
ARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution 2006-112 7124106
CITY OF PEARLAND
STANDARD AGREEMENT
FOR ENGINEERING SERVICES
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This Contract (Contract) is made between the City of Pearland, Texas t '
(hereinafter "City"), and Tolunay-Wong Engineers, Inc. (hereinafter "Engineer") as 6."" ('1,\'1 \0["
follows: tU ('.
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1. Summary of Contract Terms. The following information and referenced documents V (01/ i )~O
shall be a part of this Contract:
Description of Project: Provide construction material testing services for the
Corrigan Drainage Improvements.
EngineerlSubconsultant( s) Fee Basis of Compensation
Tolunay-Wong Engineers, $40,910.00 NTE
Inc.
Maximum Contract Amount $40,910.00 NTE
* 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.
Delivery of plans, specifications and estimates: See attached schedule.
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 low 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.
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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 percent (1 %) 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.
3
5. Subcontracts. If, for any reason, at any time during the progress of providing
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 anyone person,
$1,000,000 for each occurrence, and $1,000,000 for each occurrence of
damage to or destruction of property.
4
(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 anyone person, $1,000,000 for each occurrence, and
$1,000,000 for property damage.
B. The Engineer shall include the City as an additional insured under the policies,
ith the exception of the Professional Liability Insurance and Workers' Compensation.
rtificates of Insurance and endorsements shall be furnished to the City before work
c mmences. Each insurance policy shall be endorsed to state that coverage shall not
b suspended, voided, canceled, reduced in coverage or in limits except after thirty (30)
d ys prior written notice by certified mail, return receipt requested, has been given to
t e City. Upon request, certified copies of all insurance policies shall be furnished to the
ity.
8 Indemnitv. Engineer shall indemnify and hold the City, its officers, agents, and
e ployees, harmless from any claim, loss, damage, suit, and liability of every kind for
hich Engineer is legally liable, including all expenses of litigation, court costs, and
a torney's fees, for injury to or death of any person, for damage to any property, or
e rors in design, any of which are caused by the negligent act or omission of the
ngineer, his officers, employees, agents, or subcontractors under this Contract.
1 . Entire Contract. This Contract represents the entire Contract between the City and
t e Engineer and supersedes all prior negotiations, representations, or contracts, either
ritten or oral. This Contract may be amended only by written instrument signed by
b th parties. Purchase orders issued under this Agreement shall contain a statement
n lIifying additional terms and conditions on the reverse side of the purchase order and
r ferencing this Agreement.
Assiqnment. Engineer shall not assign this Contract without the prior written
c nsent of the City.
. Law Governinq and Venue. This Contract shall be governed by the law of the State
Texas and no lawsuit shall be prosecuted on this Contract except in a court of
mpetent jurisdiction located in Brazoria County, Texas.
. Conflicts in Contract Documents. The above proVIsions shall govern over any
c nflicting provision contained in any referenced contract document specified above.
1 . Dispute Resolution Procedures. The Engineer and City desire an expeditious
eans to resolve any disputes that may arise between them regarding this Contract. To
a complish this, the parties agree to mediation as follows: If a dispute arises out of or
r lates to this Contract, or the breach thereof, and if the dispute cannot be settled
t rough negotiation, then the parties agree first to try in good faith, and before bringing
a y legal action, to settle the dispute by mediation of a third party who will be selected
b agreement of the parties.
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EXECUTED and EFFECTIVE as of the 24th day of Jul y
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CIITY OF PEARLAND
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By:
Ptinted Name:
Title:
Bill Eisen
City Manager
stATE OF TEXAS S
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fo egoing instrument and acknowledged to me that he/she executed the same for the purposes
arid consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS Jl.\+~ DAY OF
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Tol u u ay- Wo ug ~ E u g i u eers. I u c.
July 17,2006
TWEI Proposal No: P06-C138Rev.2
City of Pearl and
3519 Liberty Dr.
PearIand, TX 77581
Email: mailto:cboone@ci.pearland.tx.us
Attention: Mr. Cecil Boone
PROPOSAL FOR CONSTRUCTION MATERIAL TESTING SERVICES
PEARLAND MOBILITY AND DRAINAGE BOND PROGRAM CORRIGAN
SUBDIVISION DRAINAGE IMPROVEMENTS, CORRIGAN INTERNAL DRAINAGE,
STORM SEWER SYSTEM, AND PAVING
PEARLAND, TEXAS
Dear Mr. Boone:
Tolunay- Wong Engineers, Inc. (TWEI) appreciates the opportunity to submit this
proposal to provide construction material testing services for the mentioned project. This
proposal outlines a scope of services, unit rates and an estimated cost of services.
Scope of Services
The scope of services covered 111 this proposal includes, but are not limited to the
following:
. Observe proof-roll, sub grade
. Field density/moisture testing; backfill, sub grade
. Cement stabilized sand testing, backfill
. Gradation testing and depth checks, stabilized sub grade
. Concrete monitoring and testing; pavement
. Related laboratory testing and sample pick-up services
Estimated Cost of Services
The following are our unit rates and budget for the construction material testing services.
Service Unit Rate Amount
Tec1mician, NICET II 430 $53 hr $22,790.00
Technician, ACI-I 229 46 hr 10,534.00
Tec1mician, Non-Celiified 58 42 hr 2,436.00
10710 S. Sam Houston Pkwy W.. Suite 100. Houston. TX 77031 (713) 722-7064 Fax (713) 722-0.3191
TWEI Proposal No.: P06-C138 Rev.2
July 17,2006
Page 2
Service
Unit Rate Amount
30 $45 ea $1,350.00
8 150 ea 1,200.00
200 13 ea 2,600.00
Total $40,910.00
Atterberg Limits
MoisturelDensity relations
Concrete Compressive Strength Cylinders
The unit rates mentioned above supersede the corresponding rates listed in the attached
schedule of fees provided by the City of Pearland. Any other type of services, if applicable, will
be invoiced in accordance with the enclosed schedule of fees. We will not exceed the estimated
total without prior written approval.
Proposal Acceptance
If this proposal meets with your approval, please sign the attached "Agreement for
Testing Services" or send us your standard contract agreement. We can begin work with your
verbal authorization.
Closine: Remarks
Again, we would like to express our appreciation for the opportunity to submit this
proposal and look forward to serving you on this project.
Sincerely,
TOLUNA Y -WONG ENGINEERS, INC.
~
Doug C. Weslow
Vice President
Enclosures:
Schedule of Services and Fees
Agreement for Testing Services
DW/ef:
Page 1 of2
TOLUNAY.WONG ENGINEERS, INC.
2006 CONSTRUCTION MATERIALS TESTING FEES
PROFESSIONAL SERVICES
A. PERSONNEL
Fee
Code Description Unit Rates
1 Principal'h' ..... ...... .... ..... .....00.. ...00..... . .... .......... ..00 .......... ................... ...... .................... .......... ..... ............. ............ ...... $150.00/hour
4 Senior Project Manager ...............00....................................00..................................................................................... 130.001hour
5 Project Manager.. ........ ............... .... ......... ........... ............... .............. ........................... ............ ...... .............. ............... 11 O.OO/hour
10 Project Engineer. ............ .......... ................ ........... .............. .......................................................................................... 95.00/hour
18 Staff Engineer, Level II.... .................................... .... .................................................................................................... 85.00/hour
19 Staff Engineer, Levell.................................................................................................................................................. 75.00/hour
30 Certified Welding Inspector....... ...00........ ............ ............... ......... .................................. ............ .............. ...... ........... ..... 75.00/hour
32 Certified Associate Welding Inspector........................................................................................................................ 70.00/hour
37 Senior Construction Materials Technician .................................................................................................................. 65.00/hour
38 Construction Materials Technician, Level II.............................................................................. .................................. 45.00/hour
39 Construction Materials Technician, Levell........ ........................ .............................................................. ................... 42.001hour
60 Word Processor/Support Staff ......................................... ............................ ................ ............................................... 38.00/hour
CONSTRUCTION FIELD SERVICES
B. TRANSPORTATION & EQUIPMENT CHARGES
642 Vehicle Charge ........... ................. .......... .......... ................. .............. .......... ............. .......... ....... ........ .......... ....... ......... ..... .55.00/trip
Pick of Test Samples
7002 Technician Rate + transportation charges................................................................................................................ .42.00/hour
7021 Nuclear Density Device ...............................................................00.....00..................................................... ................ 50.00/day
LABORATORY SERVICES
C. SOIL TESTS
4015 Liquid and Plastic (Atterberg) Limits, One Point Test (ASTM D 4318) ....................................................................$45.00/each
4042 pH Test - Soil... ........... ............ ...... ......... ..... .... ..... ................ ...... ........ ....... ........ .......... ..... .......... ..... ..................... ........ 30.00/each
4090 Optimum Lime Content by Plasticity Index Method....h.....h.....................................................................................295.00/each
4092 Optimum Lime Content by pH Method......................................................................................................................160.00/each
4115 Percent Finer Than The No. 200 Sieve (ASTM D 1140).....................................".....................................................50.00/each
4170 Compressive Strength for Stabilized Soils .................................................................................................................45.00/each
Moisture/Relationship
4410 ASTM D 698 or AASHTO T-99 (4-in. mold).............................................................................................155.00/each
4413 ASTM D 1557 or AASHTO T-180 (6-in. mold).........................................................................................165.00/each
D. CONCRETE TESTS
2301 Concrete Mixture Verification ........... .......... ................... ............ ....... ....... ............. .......... .................. ................ ..... ..$300.00/each
Laboratory Compression Testing of Concrete Cylinders
2401 Curing Testing, and Reporting includes Reserves Not Tested............................................................................ 16.00 leach
2402 Cylinders Cast By Others (Minimum 4 cyls.) ........................................................................................................22.00/each
2420 Laboratory Flexural Testing of Concrete Beams
Testing and Reporting ........... .............. ...... .... ...... ... ....... .,. ..... ..... ..... ..... .......... ..... .......... .......... .......... ............ ........25.00/each
2030 Concrete Cores ... ............. ............................... .... ........... ...........00 ..... ..... ..... .................... ........ ........... ...... .......... ........ 125.00/each
Minimum Coring Charge ............ .......00.......... ..... ......... ................... .......... ...... .................. ............ .......... ............ ....37 5.00/trip
2415 Compression Test of Concrete Core ................................................................................. ...................................35.00/each
Tolunay-Wong Engineers, Inc.
2006 Construction Materials Testing Fees
Page 2 of 2
E. AGGREGATE TESTS
Fee
Code
2201
2203
2204
2205
2206
2207
2215
2208
F.
1530
1532
1613
1601
1604
1606
1607
1608
1611
Notes:
1.
Description
Unit Rates
Laboratory Testing of Aggregate for Concrete Mixture Design including;
gradation, fineness modulus, absorption, specific gravity and unit weight,
each aggregate ......... ..... ......................... .... ............ ........ ........... ......... ........ ....... ............ ............ .......... .......... ...$11 O.OO/each
Sieve Analysis, coarse aggregate (ASTM C 135) ......................................................................................................65.00/each
Sieve Analysis, fine aggregate (ASTM C 136) ...........................................................................................................65.00/each
Percent Finer Than The No. 200 Sieve (ASTM D 1140)............................................................................................50.00/each
Specific Gravity, coarse aggregate (ASTM C 127).....................................................................................................65.00/each
Specific Gravity, fine aggregate (ASTM C 128).......................................................................................................... 75.00/each
Absorption (ASTM C 127/C 128) ................ ......................................... .......................................................................55.00/each
Unit Weight (ASTM C 29) ..........................................................................................................................................45.00/each
ASPHAL T MATERIALS TESTS
Asphalt Coring .......................... ............... ................... ...... ......... ............... ..... ........ ............ ............. ...... ............... ....$120.00/each
Asphalt & Base Coring .....................................................................................................................................,........150.00/each
Asphalt Core Density. ..... ..... ..... ..... ..... ..... ... ....... .................. .................. ....... .... ....... ... ............ ..... .... ................ ........ ...A5.00/each
Molding of Hveem Specimens........... .......... ..... ......... ..... ......... ...... ............. ...... ..................... ........ ..... ..... ..... ....... .......35.00/each
Specific Gravity (ASTM D 1188) .................................................................................................................................35.00/each
Asphalt Mixture Verification ..... .... ...... ..... .... ........... .... ..... ...... ............ ... .... .......... ..... ...... .... ..... ........ ...... ..... .... ............ AOO.OO/each
Theoretical Maximum Specific Gravity (ASTM D 2041) ............................................................................................. 75.00/each
Stability, Hveem (ASTM D 1560) ..................................................................................... .... .......................................45.00/each
Extraction (ASTM D 2172) ................................................... ................................................. ........................... ......... 120.00/each
Overtime for Engineering Technicians, Materials Technicians, Draftsmen, and Word Processor/Support Staff will be charged at
1.5 times the personnel rates. Overtime will be applicable for hours in excess of 8 hours per day, Monday through Friday, and
all hours worked on Saturdays, Sundays and holidays. All labor rates include travel time, report preparation and sample
handling. A minimum charge of 4 hours applies to all field work
2.
A minimum of 12 hours advance notice is requested for sCheduling or canceling field inspection or testing services. Work
scheduled with less than 12 hours notice will be servic-.ed subject to available personnel. Work canceled with less than 4 hours
notice may be subject to the minimum charge if technician has been dispatched to the field.
3.
Expenses such as consultant costs, delivery services. equipment rental. reproduction, subcontractor services, supplies, and
travel including airfare, car rental, and lodging will be invoiced at Cost + 15%.
4.
Invoices will be submitted monthly for work in progress and are due and payable within 30 days.
AGREEMENT FOR TESTING SERVICES
THE AGREEMENT
This AGREEMENT is made by and between TOLUNAY-WONG ENGINEERS, INC., hereinafter referred to as COMPANY, and
Citv of Pearland hereinafter referred to as CLIENT.
This AGREEMENT between the parties consists of the terms and conditions setforth herein, the attached PROPOSAL identified as
Proposal No.P06-C138Rev2 dated Julv 17. 2006 for the following project.
Pearland Mobilitvand Drainaoe Bond Prooram. Corrioan Subdivision Drainaoe Improvements. Corrioan Intemal Drainaoe.
Storm Sewer Svstem. and Pavine
Pearland. Texas
and any exhibits of attachments noted in the PROPOSAL. Together these elements will constitute the entire AGREEMENT. Any
changes to this AGREEMENT must be mutually agreed to in writing.
STANDARD OF CARE
Services performed by the COMPANY 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.
CONSTRUCTION MONITORING
For the specified assignment, the COMPANY wili report observations and data to the CLIENT. No action of the COMPANY or
COMPANY's site representative can be construed as altering any AGREEMENT between the CLIENT and others. The COMPANY
will report any observed work to the CLIENT which, in the COMPANY's opinion, does not conform with plans and specifications. The
COMPANY has no right to reject or stop work of any agent of the CLIENT. Such rights are reserved solely for the CLIENT.
Furthermore, the COMPANY'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 COMPANY 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 of the CLIENT, or safety precautions and programs incident thereto.
DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS
CLIENT warrants that a reasonable effort to inform COMPANY of known or suspected hazardous materials on or near the project site
has been made.
Hazardous materials may exist at a site where there is no reason to believe they could or should be present. COMPANY 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. COMPANY and CLIENT also agree that the discovery of hazardous materials may make it necessary for
COMPANY to take immediate measures to protect health and safety. CLIENT agrees to compensate COMPANY for any equipment
decontamination or other costs incident to the discovery of hazardous waste.
COMPANY agrees to notify CLIENT when hazardous materials or suspected hazardous materials are encountered. CLIENT agrees
to make any disclosures required by iaw to the appropriate governing agencies. CLIENT also agrees to hold COMPANY harmless for
any and ali consequences of disclosures made by COMPANY which are required by governing law. In the event the project site is not
owned by CLIENT, CLIENT recognizes thatit is the CLIENT's responsibility to inform the property owner of the discovery of hazardous
materials or suspected hazardous materials.
Notwithstanding any other provisions of the AGREEMENT, CLIENT waives any claim against COMPANY, and to the maximum extent
permitted by law, agrees to defend, indemnify, and save COMPANY harmless from any claim, liability, and/ordefense costs for injury
or loss arising from COMPANY's discovery of unanticipated hazardous materials or suspected hazardous materials including any
costs created by delay of the project and any cost associates with possible reduction of the property's value. CLIENT will be
responsible for ultimate disposal of any samples secured by the COMPANY which are found to be contaminated, however,
COMPANY will, at CLIENT's request, provide the necessary professional services for disposal of such samples.
INDEMNIFICATION
COMPANY agrees to indemnify and save CLIENT harmless from any loss, cost, or expense claimed by third parties for property
damage and bodily injury, including death, caused solely by the negligence orwiliful misconduct of COMPANY,lts agents, employees
or Contractor's affiliates in connection with COMPANY's work.
CLIENT agrees to indemnify and save COMPANY harmless from any ioss, cost or expense claimed by third parties for property
damage and bodily injury, including death, caused solely by the negligence ofwiliful misconduct of CLIENT, its agents, or employees
in connection with COMPANY's work.
If the negligence or willful misconduct of both COMPANY and CLIENT (or person identified above for whom each is liable) is the sole
cause of such damage or injury, the loss, cost, or expenses shali be shared between COMPANY and CLIENT in proportion to their
relative degrees of negligence or willful misconduct and the right of indemnity shali apply for such proportion.
2
LIMITATION OF LIABILITY
The remedies stated in the contract are exclusive and in no event shall the liability of COMPANY or its subcontractors or suppliers of any
tier to COMPANY whether in contract, warranty, tort (including negligence or strict liability) or otherwise for the performance or breach of
the contract or anything done in connection therewith exceed the values set forth in the insurance limits.
WAIVER OF CONSEQUENTIAL DAMAGES
Whether due to delay, breach of contract or warranty, tort (including negligence and strict liability) or otherwise, neither COMPANY nor its
subcontractors or suppliers of any tier shall be liable for any special indirect, incidental, or consequential damages of any nature, including,
without limitation, CLIENTs loss of actual or anticipated profits or revenues, loss by reason of shutdown, nonoperation, or increased
expense of manufacturing or operation, loss of use, cost of capital, damage to or loss of property or equipment of CLIENT, or claims of
customers of the CLIENT.
BilLING AND PAYMENT
CLIENT will pay COMPANY the lump sum amount indicated in the PROPOSAL or, if no lump sum amount is indicated, in accordance with
the unit rates and Schedule of Fees, as shown in the PROPOSAL and its attachments. Invoices will be submitted to CLIENT by
COMPANY, and will be due and payable upon presentation. if CLIENT objects to all or any portion of any invoice, CLIENT will so notify
COMPANY 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 within thirty (30) days of date of invoice.
invoices are delinquent if payment has not been received within thirty (30) days from date of invoice. CLIENT will pay an additional charge
of 12 (1.5) percent per month (or the maximum percentage allowed by law, whichever is lower) on any delinquent amount, excepting any
portion of the invoiced amount in dispute and resolved in favor of CLIENT. Payment thereafter will first be applied to accrued interest and
then to the principal unpaid amount. All time spent and expenses incurred (including any attorney's fees) in connection with collection of
any delinquent amount will be paid by the CLIENT to COMPANY per COMPANY's current fee schedules. In the event CLlENTfails to pay
COMPANY within sixty (60) days after invoices are rendered. CLIENT agrees that COMPANY will have the right to consider the failure to
pay the COMPANY's invoice as a breach of this AGREEMENT.
TERMINATION
This AGREEMENT may be terminated by either party seven (7) days after written notice. In the event of termination, COMPANY will be
paid for services performed prior to the date of termination.
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 held illegal, invalid, or unenforceable, the enforceability of the remaining
provisions will not be impaired. Limitations of liability and indemnities will survive termination of the AGREEMENT for any cause.
The Parties have read the foregoing, understand completely the terms, and willingly enter into this AGREEMENT which will become
effective on the date signed by the CLIENT below.
City of Pearland
CLIENT
Tolunay-Wonq Enqineers, Inc.
COMPANY
By:
BY:~
Dou sowL
July 17. 2006
Date