11-0419_WILLDAN ENGINEERING_Personal Services Agr Amd No. 1AMENDMENT NO. 1 TO
PERSONAL SERVICES AGREEMENT
THIS FIRST AMENDMENT TO THE PERSONAL SERVICES AGREEMENT between
the CITY OF SAN JUAN CAPISTRANO ("City") and WILLDAN, ("Consultant") is made and
entered into, to be effective the r day of _ r i , 2012, as follows:
RECITALS
WHEREAS, the City and Consultant have entered into that Personal Services
Agreement dated April 19, 2011 for a total of $10,200.00 for Construction Management
Support for Non -Structural Items in the form of Materials Submittal and Shop Drawing Review,
and Request for Information and Request for Clarification Support for the Del Obispo Street
Widening from Alipaz Street to Paseo Adelanto Project- STPL 5372 (011) (CIP 07107) (the
"Agreement'); and
WHEREAS, the City and Consultant desire to amend the terms of the Agreement as
provided hereunder.
AMENDMENT
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
therein, City and Consultant agree to amend the Agreement to add to the Scope of Work,
extend the term, and increase the total compensation amount as follows:
Section 1. Scope of Work
The scope of work to be performed by the Consultant shall consist of those tasks as set
forth in the original personal service agreement with the addition of those tasks as set forth in
Exhibit "A," attached herewith and incorporated herein by reference.
Section 2. Term
The term of the Agreement is hereby extended to the new completion date of
September 28, 2012.
Section 3. Compensation
3.1 Amount.
The City hereby agrees to pay the additional sum of Eighteen Thousand Five
Hundred and Ninety Dollars ($18,590.00) for a revised total not to exceed contract price of
Twenty Eight Thousand Seven Hundred and Ninety Dollars ($28,790.00) to Consultant for
those services performed as set forth in Exhibit "A".
3.2 Method of Payment.
Subject to Section 3.1, Consultant shall submit monthly invoices based on total
services which have been satisfactorily completed for such monthly period. The City will pay
-1-
sum±x i
monthly progress payments based on approved invoices in accordance with this Section. The
City eliminates the Rate Schedule subsection of the original agreement.
Section 4. Entire Agreement
This Amendment constitutes the entire understanding and agreement between the
parties with respect to those additional services described herein and any other
understandings, oral or in writing, are hereby superseded.
Section 5. Other Terms
All other provisions of the Agreement not amended hereunder shall remain in full force
and effect.
AF FKUVtU HJ I U F-UKM:
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SAOWN I
CITY OF N JUAN CAP STRANO
B
Larry Kcgm6r, Mayor
CONSULTANT
By f�
WL'_W I L L D A N
Engineering
March 13, 2012
Ms. Nisha Patel, P.E.
City of San Juan Capistrano
Public Works Department
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Subject: Letter Requesting a Contract Addendum for Additional Construction
Management Support and Corrosion Consultant Services for the
Del Obispo Street Widening Project
Dear Ms. Patel:
Willdan is pleased to submit our proposal to provide professional consulting services to
the City of San Juan Capistrano for the Del Obispo Street Widening Project. We
sincerely appreciate the consulting opportunities that the City has provided us in the
past. We look forward to working together to complete the construction phases of this
project.
The following will outline our request for additional services followed by a breakdown of
the associated fee for these services.
ADDITIONAL SERVICES
1. Respond to and address future RFI's and RFC's
2. Contract with and coordinate with HDR Schiff to provide corrosion consultation for
sheet pile. Please see attached proposal from HDR Schiff.
FEE ESTIMATE
Our fees for the additional services is $18,590 and is broken down as follows:
1. RFI's and RFC's $ 1,620
2. Corrosion Consultant
HDR Schiff $ 14,810
Coordination $ 2,160
Total $ 18,590
,v;` WILLDAN
Engineering
March 13, 2012
Ms. Nisha Patel, P.E.
City of San Juan Capistrano
Public Works Department
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Subject: Letter Requesting a Contract Addendum for Additional Construction
Management Support and Corrosion Consultant Services for the
Del Obispo Street Widening Project
Dear Ms. Patel:
Willdan is pleased to submit our proposal to provide professional consulting services to
the City of San Juan Capistrano for the Del Obispo Street Widening Project. We
sincerely appreciate the consulting opportunities that the City has provided us in the
past. We look forward to working together to complete the construction phases of this
project.
The following will outline our request for additional services followed by a breakdown of
the associated fee for these services.
ADDITIONAL SERVICES
1. Respond to and address future RFI's and RFC's
2. Contract with and coordinate with HDR Schiff to provide corrosion consultation for
sheet pile. Please see attached proposal from HDR Schiff.
FEE ESTIMATE
Our fees for the additional services is $18,590 and is broken down as follows:
1. RFI's and RFC's $ 1,620
2. Corrosion Consultant
HDR Schiff $ 14,810
_Coordination $ 2,160
Total $ 18,590
Ms. Patel — Request for Contract Addendum
March 13, 2012
Page 2
If you have any questions or require any additional information, please contact me at
(714) 978-8206.
Respectfully submitted,
Willdan Engineering
Kenneth C. Taylor, PE
Director of Engineering
Attachment: HDR Schiff Proposal
LDAN
ngineedng
fM,, I SCHIFF
marc.wegner@hdrinc.com
www.hddnc.com
www.schiffassociates.com
Corrosion Control and Condition Assessment (C3A) Department
July 14, 2011 via email: ktaylor@willdan.com
WILLDAN ENGINEERING
2401 East Katella Avenue, Suite 300
Anaheim, California 92806
Attention: Mr. Ken Taylor
Re: Proposal for Corrosion Engineering Services
Del Obispo Street Bridge Widening Project
San Juan Capistrano, California
HDRI Schiff #P11-0589ENG
HDR Engineering, Inc (HDR ISchiff) is pleased to submit this proposal for corrosion engineering services for
the Del Obispo Street Bridge Widening Project. This project includes the construction of a new bridge across
Trabuco Creek and a sheet pile wall to protect the footing from future scour or erosion. HDRISchiff has an
onsite laboratory and provides chemical analysis on soil samples for corrosion causing elements. HDR I Schiff
was informed that the original soil samples have been discarded and will be responsible for collecting
additional samples for testing. It is our understanding that this project consists of pre -design and design
phase support services for the proposed work.
HDR I Schiff's scope of work would include the following tasks:
Phase 1: Pre -design Services
1. Review geotechnical report and design plans.
2. Coordinate with Underground Service Alert (USA) for utility locating. HDRISchiff will not be
responsible for any required permits for soil sampling.
3. Collect two (2) soil samples for testing. Soil samples will be collected using a Geoprobe hydraulic
direct push machine. Depending on site conditions, soil samples will be collected near the
proposed sheet pile depth, unless obstructions are encountered.
4. Perform laboratory testing on two (2) soil samples. Testing to be performed includes as -received
resistivity, saturated resistivity, pH, possibly sulfides and oxidation-reduction potential, and
perform a chemical analysis for calcium, magnesium, sodium, carbonate, bicarbonate, chloride,
sulfate, ammonium, and nitrate.
431 West Baseline Road - Claremont, CA 91711
Phone: 909.626.0967 • Fax: 909.626.3316
Willdan Engineering
Del Obispo Street Bridge Widening Project
July 14, 2011
SA #P11-0589ENG
5. Provide a letter report with an assessment of soil corrosivity and general recommendations for
corrosion control.
Phase 2: Design Services
1. 90% Design Stage: Review and mark-up Willdan Engineering design drawings and specifications.
Design a corrosion control or cathodic protection system as -needed. Provide cathodic
protection details and a cathodic protection technical specification.
2. Final Design Stage: Review and respond to Owner and Willdan Engineering cathodic protection
review comments, revise cathodic protection system drawings and specification accordingly.
The services in Phase 1 and 2 will be provided on a time and materials basis, not to exceed $14,810, as
detailed in the attached Fee Estimate, without Willdan Engineering's written authorization. The work
will be provided in accordance with the attached Terms and Conditions and Fee Schedule.
HERSchiff is prepared to begin work on this project upon receipt of a conforming mutually -negotiated
contract. Please call if you have any questions.
Respectfully Submitted,
HER Engineering, Inc
Marc E. N. Wegner, P.E.
Project Engineer
Eric Frechette, P.E.
Vice President
Accepted: Ok5'�-�% Date: 14 II
I !=ismv
Client's Name: N
Client's Title. AsSOcc CZE— �nq,--C-n IC L+rl OF S, . Tuc (yo_ris�a
Enc. Fee Estimate
Fee Schedule 2011
2011 Fee Schedule for Laboratory Testing
Terms and Conditions
Page 2
ID'I I * SCHIFF
Fee Estimate
Del Obispo Street Bridge Widening
San Juan Capistrano, California
P11-0589ENG
Conwbn Co POmdCo,Wto. Atnsenont(CUJ Venofn,gnl
Ken Taylor
Willdan Engineering
Anaheim, California
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JD'vJ I * SCH I FF
www.hdrinc.com
Corrosion Control and Condition Assessment (C3A) Department
FEE SCHEDULE 2011
HDR I Schiff has, since 1959, provided consulting services in the field of corrosion control
engineering. Our services are furnished on the basis of the below listed terms and in accordance
with the following schedule of fees and charges which are subject to revision at ninety day
intervals:
rifle
Hourly
Rafe
Principal Engineer
300
Associate Engineer
210
Senior Staff Scientist
210
Senior Corrosion Engineer
165
Coating Specialist
160
Corrosion En ineer/C.P. Specialist
150
Senior Corrosion Technolo ist/Field En ineer
130
Corrosion Technician
110
NACE Certified Coatin s Inspector
90
CAD Operator/Designer including Equipment
$85
Coating Inspector
$75
Word Processin /Clerical
75
Personnel time is billed in one-hour increments. These rates apply to regular and travel time.
Charges for travel time will be limited to eight (8) hours per day. Overtime, if required in the interest
of the project, will be charged at the above rates for professional personnel and 1.5 times the
above rates for inspector, technician and clerical personnel. Coating inspector has a four (4) hour
minimum charge.
EQUIPMENT AND MISCELLANEOUS CHARGES:
Personnel charges include the indicating instruments commonly used in corrosion testing.
Specialized instrumentation/test equipment and facilities may require an additional charge. Other
direct costs (ODC), such as outside consultants or laboratories, rental equipment and Waivers of
Subrogation or specialized insurance required by client/project, miscellaneous expenses (including
vehicle usage, photograph, reproduction, binding, overnight mail or courier services, etc.) will be
charged at cost plus fifteen percent (15%). Mileage will be charged at $1.25 per mile. Travel
expenses (airfare, local travel and accommodation) will be charged at cost. Meal and incidental
expenses (MME) during travel will be charged at actual cost, up to daily MWE per diem per
Federal Government CONUS rates. Permits and fees required for projects will be charged at cost.
Technology Charge will be assessed at $3.70 per labor hour charged on the invoice.
2011 Fee Schedule
431 West Baseline Road • Claremont, CA 91711
Phone: 909.626.0967 • Fax: 909.626.3316
Fffecflve 3/1/2011
IMA, I * SCHIFF
www.hdrinc.com
Corrosion Control and Condition Assessment (C3A) Department
2011 FEE SCHEDULE FOR LABORATORY TESTING
HDR I Schiff services are furnished on the basis of the below listed terms and in accordance with
the following charges which are subject to revision at ninety -day intervals.
Price per Sample
Tests Requested
$55
As -received and saturated electrical resistivity and pH (ASTM G-187)
$95
Minimum electrical resistivity and pH (CalTrans 643)
$46
Soluble Salt Extraction
$25
Single ion (e.g. CI'•, S042% NH4'*) in soil extract (AWWA 4110B, ASTM
6919, ASTM 4327)
$86
General Soluble Salts Package - Extraction + Analyses
$28
Sulfides (qualitative) and redox (AWWA C105 Appendix A)
$84
Oxidation Reduction Potential (ASTM G200)
$84
Sulfides (quantitative) (EPA 376. 1, AWWA 4500F, AWWA 4500D)
$73
Total acidity/alkalinity (when pH < 5.5, NBS Circular 579)
$113
Chloride in mortar or concrete (AASHTO T260)
$358
Thermal resistivity (ASTM D5334)
$194
Electrical Resistance (ER) Test: plus $150 set up fee for first test on each
probe and $150 per week for lab space for tests series longer than one
week. Data only.
$220
Linear Polarization Resistance (LPR) Test: plus $150 set up fee for first test
on each probe material and $150 per week for lab space for tests
series longer than one week. Data only.
$287
Electrochemical Impedance Spectroscopy Test: plus $150 set up fee
for first test on each probe or material and $150 per week for lab
space for test series longer than 1 week. Data only.
$50
Chemical and Electrochemical data analysis and interpretation (per
test)
$56
Quarantine Sample Handling
431 West Baseline Road • Claremont, CA 91711
Phone: 909.626.0967 • Fax: 909.626.3316
JU,.� I SCH I FF
SOIL TEST PACKAGES:
General Building Materials $1331ea
■ As -received and saturated electrical resistivity (ASTM
G-187) and pH Chemical analysis for major anions
and cations, and ammonium and nitrates(Copper
testing)
• Sulfides (qualitative) and redox if anaerobic
conditions are suspected
CalTrans/CTM $173/ea
■ Minimum electrical resistivity and pH per
California Test Method 643(CalTrans/CTM 643)
■ Chemical analysis for major anions and cations
with chloride per CTM 422 & sulfate per CTM 417
TURNAROUND TIMES:
Soluble Salts
Page 2
$86/ea
• Anions Package: chloride, sulfate,
carbonate, bicarbonate, fluoride,
phosphate, and nitrate
• Cations Package: calcium, magnesium,
sodium, potassium, and ammonium
Turnaround times are measured from the time of sample arrival in HDR ) Schiff office in Claremont,
CA. Samples arriving before 12:00 PM Pacific Time will be marked with an arrival date of that day—
samples arriving after 12:00 PM will be marked as arriving the following day.
Turnaround Time Service Charges
7 -business days
None
3 -business days
50% premium
1 -business day
100% premium
DISPOSAL OF SAMPLES:
Soil, rock, water and/or other samples obtained from the Client are the property of the Client.
However, HDR ) Schiff shall retain a portion of such samples for no longer than forty-five (45)
calendar days after the issuance of any document that includes the data obtained from them
unless other arrangements are mutually agreed upon in writing. It is the Client's responsibility to
notify HDR I Schiff in advance if samples contain any hazardous substance. If HDR ) Schiff agrees
to perform analyses on such samples unused material and residue will be returned to the client
for proper legal disposal.
USDA CERTIFIED:
HDR I Schiff is certified by the USDA to receive quarantine soils from domestic and foreign
sources. Please call in advance for pricing and to arrange for shipment.
SOIL CORROSIVITY STUDY:
Report prices are not included with the laboratory charges. Please call for auote.
March 2011
CORROSION AND CATHODIC PROTECTION ENGINEERING SERVICES
PLANS & SPECIFICATIONS • FAILURE ANALYSIS • EXPERT WITNESS • CORROSIVITY ANo DAMAGE ASSESSMENTS
HDR Engineering, Inc.
Terms and Conditions for Professional Services
STANDARD OF PERFORMANCE
The standard of care for all professional engineering, consulting and
related services performed or furnished by ENGINEER and its
employees under this Agreement will be the care and skiff ordinarily
used by members of ENGINEER's profession practicing under the
same or similar circumstances at the same time and in the some
locality. ENGINEER makes no warranties, express or implied, under
this Agreement or otherwise, in connection with ENGINEER's
services.
INSURANCEfINDEMNITY
ENGINEER agrees to procure and maintain, at Its expense, Workers'
Compensation Insurance as required by statute; Employer's Liability of
$250,000; Automobile Liability insurance of $1,000,000 combined
single limit for bodily Injury and property damage covering all vehicles,
Including hired vehicles, owned and non -owned vehicles; Commercial
General Liability insurance of $1,000,000 combined single limit for
personal injury and property damage; and Professional Liability
insurance of $1.000.000 per claim for protection against claims
arising out of the performance of services under this Agreement
caused by negligent acts, errors, or omissions for which ENGINEER
is legally liable. Upon request, OWNER shall be made an additional
insured on Commercial General and Automobile Liability insurance
policies and certificates of insurance will be furnished to the OWNER.
ENGINEER agrees to indemnify OWNER for claims to the extent
caused by ENGINEER's negligent acts, errors or omissions.
OPINIONS OF PROBABLE COST (COST ESTIMATES)
Any opinions of probable project cost or probable construction cost
provided by ENGINEER are made on the basis of Information available
to ENGINEER and on the basis of ENGINEER's experience and
qualifications, and represents its judgment as an experienced and
qualified professional engineer. However, since ENGINEER has no
control over the cost of labor, materials, equipment or services
furnished by others. or over the contractor(sl methods of determining
prices, or over competitive bidding or market conditions. ENGINEER
does not guarantee that proposals, bids or actual project or
construction cost will not vary from opinions of probable cost
ENGINEER prepares.
CONSTRUCTION PROCEDURES
ENGINEER's observation or monitoring portions of the work performed
under construction contracts shag not relieve the contractor from Its
responsibility for performing work In accordance with applicable
contract documents. ENGINEER shall not control or have charge of,
and shall not be responsible for, construction means, methods,
techniques, sequences, procedures of construction, health or safety
programs or precautions connected with the work and shall not
manage, supervise, control or have charge of construction.
ENGINEER shag not be responsible for the ads or omissions of the
contractor or other parties on the project. ENGINEER shag be entitled
to review all construction contract documents and to require that no
provisions extend the duties or liabilities of ENGINEER beyond those
set forth In this Agreement OWNER agrees to include ENGINEER as
an Indemnified party in OWNER's construction contracts for the work,
which shag protect ENGINEER to the same degree as OWNER.
Further, OWNER agrees that ENGINEER shag be fisted as an
additional insured under the construction contractor's liability Insurance
policies.
5. CONTROLLING LAW
This Agreement is to be governed by the law of the state where
ENGINEER's services are performed.
6. SERVICES AND INFORMATION
OWNER will provide all criteria and information pertaining to OWNER's
requirements for the project, including design objectives and
constraints, space, capacity and performance requirements, flexibility
and expandatil ty, and any budgetary limitations. OWNER will also
provide copies of any OWNER -furnished Standard Details, Standard
Specifications, or Standard Bidding Documents which are to be
incorporated into the project.
OWNER will furnish the services of solislgeotechnical engineers or
other consultants that include reports and appropriate professional
recommendations when such services are deemed necessary by
ENGINEER. The OWNER agrees to bear full responsibility for the
technical accuracy and content of OWNER -furnished documents and
services.
In performing professional engineering and related services hereunder,
It is understood by OWNER that ENGINEER is not engaged In
rendering any type of legal, Insurance or accounting services, opinions
or advice. Further, it is the OWNER's sole responsibility to obtain the
advice of an attorney, Insurance counselor or accountant to protect the
OWNER's legal and financial Interests. To that end, the OWNER
agrees that OWNER or the OWNER's representative will examine all
studies, reports, sketches, drawings, spedfications, proposals and
other documents, opinions or advice prepared or provided by
ENGINEER, and will obtain the advice of an attorney, insurance
counselor or other consultant as the OWNER deems necessary to
protect the OWNER's Interests before OWNER takes action or
forebears to take action based upon or relying upon the services
provided by ENGINEER.
T. SUCCESSORS AND ASSIGNS
OWNER and ENGINEER, respectively, bind themselves, their
partners, successors, assigns, and legal representatives to the
covenants of this Agreement. Neither OWNER nor ENGINEER will
assign, sublet, or transfer any Interest in this Agreement or claims
arising therefrom without the written consent of the other.
REUSE OF DOCUMENTS
All documents. Including all reports, drawings, specifications, computer
software or other Items prepared or furnished by ENGINEER pursuant
to this Agreement, are instruments of service with respect to the
project. ENGINEER retains ownership of all such documents.
OWNER may retain copies of the documents for its information and
reference in connection with the project; however, none of the
documents are intended or represented to be suitable for reuse by
OWNER or others on extensions of the project or on any other project.
Any reuse without written verification or adaptation by ENGINEER for
the specific purpose Intended will be at OWNER's sole risk and without
liability or legal exposure to ENGINEER, and OWNER will defend.
Indemnify and hold harmless ENGINEER from all claims, damages,
tosses and expenses, including attorneys fees, arising or resulting
therefrom. Any such verification or adaptation will entitle ENGINEER to
further compensation at rates to be agreed upon by OWNER and
ENGINEER.
TERMINATION OF AGREEMENT
OWNER or ENGINEER may terminate the Agreement, in whole or in
part. by giving seven (7) days written notice, If the other party
substantially fails to fulfill its obligations. under the Agreement through
no fault of the terminating party. Where the method of payment is
"lump sum." or cost reimbursement. the final invoice will include all
services and expenses associated with the project up to the effective
date of termination. An equitable adjustment shag also be made to
provide for termination settlement costs ENGINEER incurs as a result
of commitments that had become firth before termination, and for a
reasonable profit for services performed.
10. SEVERABILITY
If any provision of this agreement is held Invalid or unenforceable, the
remaining provisions shall be valid and binding upon the partes. One
or more waivers by either party of any provision, tern or condition
shag not be construed by the other party as a waiver of any
subsequent breach of the same provision, term or condition.
11. INVOICES
(212011)
ENGINEER will submit monthly invoices for services rendered and
OWNER will make prompt payments in response to ENGINEER's
invoices.
ENGINEER will retain receipts for reimbursable expenses to general
accordance with Internal Revenue Service rules pertaining to the
support of expenditures for Income tax purposes. Receipts will be
available for inspection by OWNER's auditors upon request.
If OWNER disputes any items in ENGINEER's Invoice for any reason.
Including the lack of supporting documentation, OWNER may
temporady delete the disputed Item and pay the remaining amount of
the invoice. OWNER will promptly notify ENGINEER of the dispute
and request clarification and/or correction. After any dispute has been
settled. ENGINEER will include the disputed item on a subsequent,
regularly scheduled invoice, or on a special Invoice for the disputed
Rem only.
OWNER recognizes that late payment of invoices results in extra
expenses for ENGINEER. ENGINEER retains the right to assess
OWNER Interest at the rete of one percent (1 %) per month, but not to
exceed the maximum rate allowed by law, on invoices which are not
paid within thirty (30) days from the date of the Invoice. In the event
undisputed portions of ENGINEER's Invoices are not paid when due,
ENGINEER also reserves the right, after seven (7) days prior written
notice, to suspend the performance of Its services under this
Agreement until all past due amounts have been paid In full.
12. CHANGES
The parties agree that no change or modification to this Agreement, or
any attachments hereto, shall have any force or effect unless the
change is reduced to writing, dated, and made part of this Agreement.
The execution of the change shall be authorized and signed In the
same manner as this Agreement. Adjustments In the period of
services and in compensation shall be In accordance with applicable
paragraphs and sections of this Agreement. Any proposed fees by
ENGINEER are estimates to perform the services required to
complete the project as ENGINEER understands it to be defined. For
those projects Involving conceptual or process development services,
activities often are not fully definable In the initial planning. In any
event, as the project progresses, the facia developed may dictate a
change In the services to be performed, which may alter the scope.
ENGINEER will Inform OWNER of such situations so that changes in
scope and adjustments to the time of performance and compensation
can be made as required. If such change, additional services, or
suspension of services results In an Increase or decrease in the cost
of or time required for performance of the services, an equitable
adjustment shag be made, and the Agreement modified accordingly.
13. CONTROLLING AGREEMENT
These Terms and Conditions shag take precedence over any
Inconsistent or contradictory provisions contained In any proposal,
contract, purchase order, requisition, notice -to -proceed, or like
document.
14. EQUAL EMPLOYMENT AND NONDISCRIMINATION
In connection with the services under this Agreement, ENGINEER
agrees to comply with the applicable provisions of federal and state
Equal Employment Opportunity for individuals based an color.
religion, sex, or national origin, or disabled veteran, recently
separated veteran, other protected veteran and armed forces service
medal veteran status, disabilities under provisions of executive order
11246, and other employment, statutes and regulations, as stated in
Title 41 Part 60 of the Code of Federal Regulations § MIA (a -f), §
60-300.5 (a -e), § 60.741 (a -e).
16. HAZARDOUS MATERIALS
OWNER represents to ENGINEER that, to the best of its knowledge,
no hazardous materials are present at the project site. However, in
the event hazardous materials are known to be present, OWNER
represents that to the best of its knowledge it has disclosed to
ENGINEER the existence of all such hazardous materials, including
but not limited to asbestos, PCB's, petroleum, hazardous waste, or
radioactive material located at or near the project site, Including
type, quantity and location of such hazardous materials. It is
acknowledged by both parties that ENGINEER's scope of services
do not include services related In any way to hazardous materials.
In the event ENGINEER or any other party encounters undisclosed
hazardous materials. ENGINEER shall have the obligation to notify
OWNER and, to the extent required by law or regulation, the
appropriate governmental officials. and ENGINEER may, at its
option and without liability for delay, consequential or any other
damages to OWNER, suspend performance of services on that
portion of the project affected by hazardous materials until OWNER:
(i) retains appropriate specialist consuftant(s) or contractor(s) to
Identify and, as appropriate, abate, remediate, or remove the
hazardous materials: and (ii) warrants that the project site is in full
compliance with all applicable laws and regulations. OWNER
acknowledges that ENGINEER is performing professional services
for OWNER and that ENGINEER is not and shall not be required to
become an "arranger; "operator; "generator," or 'transporter" of
hazardous materials, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1990
(CERCLA), which are or may be encountered at or near the project
site in connection with ENGINEER's services under this Agreement.
If ENGINEER's services hereunder cannot be performed because of
the existence of hazardous materials. ENGINEER shall be entitled
to terminate this Agreement for cause on 30 days written notice. To
the fullest extent permitted by law, OWNER shall indemnity and hold
harmless ENGINEER, its officers, directors, partners, employees,
and subconsuttants from and against all costs, losses, and damages
(including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals, and all court or
arbitration or other dispute resolution costs) caused by, arising out of
or resulting from hazardous materials, provided that (1) any such
cost, loss, or damage Is attributable to bodily Injury, sickness,
disease, or death, or injury to or destruction of tangible property
(other than completed Work), Including the loss of use resulting
therefrom, and (11) nothing In this paragraph shall obligate OWNER
to Indemnify any individual or entity from and against the
consequences of that individual's or entity's sole negligence or willful
misconduct.
16. EXECUTION
This Agreement, including the exhibits and schedules made part
hereof, constitute the entire Agreement between ENGINEER and
OWNER, supersedes and controls over all prior written or oral
understandings. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by the parties.
17. LIMITATION OF LIABILITY
ENGINEER's and its employees' total liability to OWNER for any loss
or damage, including but not limited to special and consequential
damages arising out of or In connection with the performance of
services or any other cause, including ENGINEER's and its
employees' professional negligent ads, errors, or omissions, shall not
exceed the greater of $50,000 or the total compensation received by
ENGINEER hereunder, except as otherwise provided under this
Agreement. and OWNER hereby releases and holds harmless
ENGINEER and its employees from any liability above such amount.
18. LITIGATION SUPPORT
In the event ENGINEER is required to respond to a subpoena,
government Inquiry or other legal process related to the services in
connection with a legal or dispute resolution proceeding to which
ENGINEER is not a party, OWNER shall reimburse ENGINEER for
reasonable costs in responding and compensate ENGINEER at its
then standard rates for reasonable time Incurred In gathering
Information and documents and attending depositions, hearings, and
trial.
19. UTILITY LOCATION
If underground sampfingAesfing Is to be performed, a local utility
locating service shall be contacted to make arrangements for all utilities
to determine the location of underground utilities. In addition, OWNER
shall notify ENGINEER of the presence and location of any
underground utilities located on the OWNER's property which are not
the responsibility of pdvate/pubec utilities. ENGINEER shall take
reasonable precautions to avoid damaging underground utilities that
are property marked. The OWNER agrees to waive any claim against
ENGINEER and will Indemnify and hold ENGINEER harmless from
Terms & Conditions for Professional Services 2 (212011)
any claim of liability, Injury or loss caused by or allegedly caused by
ENGINEER'S damaging of underground utilities that am not property
marked or are not called to ENGINEER's attention prior to beginning
the underground sampling/testing.
Terms & Conditions for Professional Services 3 (WO11)