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HomeMy WebLinkAboutResolution No. 06-015 RESOLUTION NO. 06- ~/~ ORIGINAL A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE ENGINEERING SERVICES CONTRACT BY AND BETWEEN THE CITY OF THE COLONY AND HALFF ASSOCIATES FOR SERVICES ON MEMORIAL DR. AND PAIGE RD., WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City and Consultant have entered into an agreement such that the Consultant is to provide the following services: Engineering design of Paige Rd. and two sections of Memorial Dr.; and WHEREAS, the City has determined that it is in the best interest of the City to enter into the Contract with Halff Associates, Inc., which is attached hereto and incorporated herein by reference as Exhibit "A," under the terms and conditions provided therein. WHEREAS, with this Engineering Services Contract the City of The Colony is agreeing to pay the sum of $707,480.00 for such work.. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The Engineering Services Contract, which is attached and incorporated hereto as Exhibit "A", having been reviewed by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the City Manager is hereby authorized to execute the Agreement on behalf of the City of The Colony, Texas. Section 2. That this Resolution shall take effect immediately from and after its adoption and it is so resolved. PASSED, APPROVED and EFFECTIVE this 6th day of February, 2006. 1!~~ , laJ. MI17T4iEW ~ be. A...J '-t>A.J Dillard, Mayor y of The Colony, Texas 63918 AGREEMENT FOR PROFESSIONAL SERVICES Q crcP( THIS AGREEMENT is entered into the 0 day of F€f3 ,2005", by and between the CITY OF THE COLONY, TEXAS, hereinafter referred to as CITY and HALFF ASSOCIATES, INC., hereinafter referred to as UNDERSIGNED. WHEREAS, CITY desires UNDERSIGNED to perform certain work and services set forth in scope of Services, marked Exhibit "A", and attached hereto and incorporated herein. WHEREAS, the UNDERSIGNED has expressed a willingness to perform said work and services, hereinafter referred to only as "services", specified in said Scope of Services, and enumerated under Article II of this Agreement. NOW, THEREFORE, all parties agree as follows: ARTICLE I GENERAL UNDERSIGNED, shall furnish and pay for all labor, tools, materials, equipment, supplies, transportation and management necessary to perform all services set forth in Article II hereof for the CITY in accordance with the terms, conditions and provisions of the Scope of Services, marked Exhibit "A", and attached hereto and incorporated herein for all purposes. CITY may, at any time, stop any services by the UNDERSIGNED upon giving UNDERSIGNED written notice. UNDERSIGNED shall be bound to CITY by the terms, conditions and responsibilities toward the CITY for UNDERSIGNED'S services set forth in this Agreement. ARTICLE II SERVICES A. The following services, when authorized in writing by a Notice to Proceed, shall be performed by the UNDERSIGNED in accordance with the CITY'S requirements: Professional Engineering Services to prepare Construction Plans, Specificcitions and Estimates for Major Thoroughfare Roadways as described in Exhibit "A" B. UNDERSIGNED shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, plans, and other services furnished by UNDERSIGNED under this Agreement. UNDERSIGNED shall, without additional compensation, correct or revise any errors or deficiencies in the design, drawings, specifications, plans and other services. Page 1 C. Neither CITY'S review, approval or acceptance of, nor payment for any of the services required under this Agreement, shall be construed to operate as a waiver of any rights under this Agreement, and UNDERSIGNED shall be an remain liable to the CITY in accordance with applicable law for all damages to the CITY caused by the UNDERSIGNED'S negligent performance of any of the services furnished under this Agreement. D. The rights and remedies of the CITY under this Agreement are as provided by law. ARTICLE '" PAYMENT A. CITY shall pay UNDERSIGNED for all services authorized in writing and properly performed by the UNDERSIGNED in the basis herein described, subject to additions or deletions for changes or extras agreed upon writing. B. The total amount paid to UNDERSIGNED shall not exceed a lump sum fee of $615,200 as outlined in Exhibit "B". Partial payment will be made for completed portions of the work as approved by the CITY and as stipulated in Exhibit "B" attached hereto and incorporated herein. C. Upon complete performance of this Agreement by the UNDERSIGNED and final approval and acceptance of UNDERSIGNED'S service by the CITY, CITY will make final payment to UNDERSIGNED of the balance due under this Agreement within thirty (30) days of the following month after final payment for such services has been billed by the UNDERSIGNED. D. CITY may deduct from any amounts due or to become due to the UNDERSIGNED any sum or sums owing by the UNDERSIGNED to the CITY. In the event of any breach by the UNDERSIGNED of any provision or obligation of this Agreement, or in the event of the assertion by other parties of any claim or lien against the CITY, or the CITY'S premises, arising out of the UNDERSIGNED'S performance of this Agreement, the CITY shall have the right to retain out of any payments due or to become due to the UNDERSIGNED an amount sufficient to completely protect the CITY from any and all loss, damage or expense therefrom, until the breach, claim or lien has been satisfactorily remedied or adjusted by the UNDERSIGNED. ARTICLE IV TIME FOR PERFORMANCE A. UNDERSIGNED shall perform all services as provided for under this Agreement in a proper, efficient and professional, manner in accordance with the CITY'S requirements. Both parties have agreed to the provisions of this Page 2 Agreement in anticipation of the orderly and continuous progress of the project through completion of the Scope of Services specified in Exhibit "A", attached hereto. B. In the event UNDERSIGNED's performance of this Agreement is delayed or interfered with by acts of the CITY or others, the UNDERSIGNED may request an extension of time for the performance of same as hereinafter provided, but shall not be entitled to any increase in fee or price, or to damages or additional compensation as a consequence of such delays unless such delays exceed ninety (90) days. C. No allowance of any extension of time, for any cause whatever, shall be claimed or make to the UNDERSIGNED, unless the UNDERSIGNED shall have made written request upon the CITY for such extension within forty-eight (48) hours after the cause for such extension occurred, and unless the city and the UNDERSIGNED have agreed in writing upon the allowance of additional time to be made. ARTICLE V DOCUMENTS A. All instruments or service (including plans, specifications, drawings, reports, designs, computations, computer programs, estimated, surveys, other data or work items, etc.) prepared under this Agreement shall be submitted for approval of the CITY. All instruments of service shall be professionally sealed as may be required by law or by the CITY. B. Such documents of service, together with necessary supporting documents, shall be delivered to the CITY, and the CITY shall have unlimited rights, for the benefit of the CITY, in all instruments of service, including the right to use same on any other work of the CITY without additional cost to the CITY. If, in the event the CITY uses such instruments of service on any work of the CITY other than that specified in the Scope of Services, attached as Exhibit "A", provided the UNDERSIGNED completes this Agreement, under those circumstances the CITY hereby agrees to protect, defend, indemnify and hold harmless the UNDERSIGNED, their officers, agents, servants and employees, form and against suits, actions, claims, losses, liability or damage of any character, and from and against costs and expenses, including, in part, attorney fees incidental to the defense of such suits, actions, claims, losses, damages or liability on account of injury, disease, sickness, including death, to any person or damage to property including, in part, the loss of use resulting therefrom, arising from any inaccuracy, such use of such instruments of service with respect to such other work except where the UNDERSIGNED participates in such other work. Page 3 C. The UNDERSIGNED agrees to and does hereby grant to the CITY a royalty- free license to all such instruments of service, which the UNDERSIGNED may cover by copyright, and to all designs as to which the UNDERSIGNED may assert any rights or establish any claim under the design patent or copyright laws. The UNDERSIGNED, after completion of the project, agrees to furnish the originals of all such instruments or service to the CITY. D. All word documents supplied to the CITY as provided herein shall be in Microsoft Word 98 or higher edition, or in a format compatible with the aforementioned program. All plan documents shall be exported to an AutoCAD 14 or higher version format. ARTICLE VI TERMINATION A. The CITY or the UNDERSIGNED may suspend or terminate this Agreement for cause or without cause at any time by giving written notice to the UNDERSIGNED. In the event suspension or termination is without cause, payment to the UNDERSIGNED, in accordance with the terms of this Agreement, will be made on the basis of services reasonably determined by the CITY to be satisfactory performed to date of suspension or termination. Such payment will be due upon delivery of all instruments of service to the CITY. B. Should the CITY require a modification of its contract with the UNDERSIGNED, and in the event the CITY and UNDERSIGNED fail to agree upon a modification to this Agreement, the CITY and the UNDERSIGNED shall have the option of termination this Agreement. Payment to the UNDERSIGNED shall be made by the CITY in accordance with the terms of this Agreement, for the services mutually agreed upon by the CITY and the UNDERSIGNED to be properly performed by the UNDERSIGNED prior to such termination date. C. Upon termination of this agreement for any reason, the UNDERSIGNED shall immediately deliver to CITY all plans, drawings, specifications, designs and other information prepared by or acquired by the UNDERSIGNED relative to the Major Thoroughfare Roadway project. ARTICLE VII INSURANCE A. UNDERSIGNED shall provide and maintain workers' Compensation with statutory limits. B. UNDERSIGNED shall provide and maintain in full force and effect during the time of this Agreement, auto insurance (including, but not limited to, insurance Page 4 covering the operations of owned and non-owned automobiles, trucks and other vehicles) protecting the UNDERSIGNED and the CITY as an additional insured with limits not less than 250/500/100,000. C. UNDERSIGNED shall provide general Liability Insurance. Such insurance covering personal and bodily injuries or death shall be in the sum of not less than Two Hundred Fifty Thousand ($250,000) Dollars per occurrence and Five Hundred Thousand ($500,000) Dollars aggregate. Insurance covering damages to property shall be in the sum of not less than One Hundred Thousand ($100,000) Dollars. The General Liability Insurance must name the CITY as an additional Insured. D. UNDERSIGNED shall provide and maintain Professional Liability Errors and Omissions insurance coverage to protect the UNDERSIGNED and the CITY from liability arising out of the performance of professional services, if any, under this Agreement. Such coverage shall be in the sum of not less than Three Hundred Thousand ($300,000) Dollars per occurrence and Five Hundred Thousand ($500,000) Dollars aggregate. Such insurance shall be kept in effect for four (4) years after the completion of the contract. If the UNDERSIGNED fails to maintain the insurance covered during that time, the CITY may pay the premiums to keep the insurance in effect and recover the cost from the UNDERSIGNED. E. A signed Certificate of Insurance, satisfactory to the CITY, showing compliance with the requirements of this Article shall be furnished to the CITY before any services are performed. Such Certificate shall provide thirty (30) days written notice to the CITY prior to the cancellation or modification of any insurance referred to therein and continue to issue such certificate for four (4) years after completion of the contract. ARTICLE VIII INDEMNIFICATION FOR INJURY AND PERFORMANCE UNDERSIGNED further specifically obligates itself to the CITY in the following, to-wit: The UNDERSIGNED hereby agrees to protect, indemnify and hold harmless the CITY, their officers, agents, servants and employees (hereinafter individually and collectively referred to as "Indemnitees"), from and against suits, actions, claims, losses, liability or damage of any character, and from and against costs and expenses, including, in part, attorney fees incidental to the defense of such suits, actions, claims, losses, damages or liability on account of injury, disease, sickness, including death, to any person or damage to property including, in part, the loss of use resulting therefrom arising from any negligent act, error, or omission of the UNDERSIGNED, its officers, employees, servants, agents or subcontractors, or anyone else under the UNDERSIGNED'S direction and control and arising out of, resulting from, or caused by Page 5 the performance or failure of performance of any work or services called for by this Agreement, or from conditions created by the performance or non-performance of said work or services. In the event one or more of the Indemnitees is determined by a court of law to be jointly or derivatively negligent or liable for such damage or injury, the UNDERSIGNED shall be obligated to indemnify Indemnitee(s) as provided herein on a proportionate basis in accordance with the final judgment, after all appeals are exhausted, determining such joint or derivative negligence or liability. The UNDERSIGNED is not responsible for the actions of the CITY'S contractor to perform the construction of the improvements covered under this Agreement. Acceptance and approval of the final plans by the CITY shall not constitute nor be deemed a release of this responsibility and liability of the UNDERSIGNED, its employees, associates, agents and consultants for the accuracy or competency of their designs, working drawings and specifications, or other documents and work; nor shall such approval be deemed to be an assumption of such responsibility by the CITY for any defect in the designs, working drawings and specifications, or other documents prepared by the UNDERSIGNED, its employees, contractor, agents ad consultants. ARTICLE IX INDEMINIFICATION FOR UNEMPLOYMENT COMPENSATION UNDERSIGNED agrees that it is an independent contractor and not an agent of the CITY, and that the UNDERSIGNED is subject, as and employer, to all applicable Unemployment Compensation Statutes, so as to relieve the CITY of any responsibility or liability from treating the UNDERSIGNED'S employees as employees of the CITY for the purpose of keeping records, making reports or payments of Unemployment Compensation taxes or contributions. The UNDERSIGNED further agrees to indemnify and hold the CITY harmless and reimburse it for any expenses or liability incurred under said Statues in connection with employees of the UNDERSIGNED. ARTICLE X INDEMNIFICATION FOR PERFORMANCE UNDERSIGNED shall defend and indemnify Indemnitees against and hold the CITY and the premises harmless from any and all claims, suits or liens based upon or alleged to be based upon the non-payment of labor, tools, materials, equipment, supplies, transportation and management costs incurred by the UNDERSIGNED in performing this Agreement. ARTICLE XI ASSIGNMENT UNDERSIGNED shall not assign or sublet this Agreement or any part thereof, without the written consent of the CITY. Sale of more than fifty (50%) percent ownership of the UNDERSIGNED shall be construed as an assignment. Page 6 ARTICLE XII APPLICABLE LAWS UNDERSIGNED shall comply with all Federal, State, County and Municipal laws, ordinances, regulations, safety orders, resolutions and building codes, including the Americans With Disabilities Act, relating or applicable to service to be performed under this Agreement. This Agreement is performable in the State of Texas and shall be governed by the laws of the State of Texas. Venue on any suit hereunder shall be in Denton County, Texas. ARTICLE XIII DEFAULT OF UNDERSIGNED In the event the UNDERSIGNED fails to comply or becomes disable and unable to comply with the provisions of this Agreement as to the quality or character of the service or time of performance, and the failure is not corrected within ten (10) days after written notice by the CITY to the UNDERSIGNED, the CITY may, at its sole discretion without prejudice to any other right or remedy: A. Terminate this Agreement and be relieved of the payment of any further consideration to the UNDERSIGNED except for all work determined by the CITY to be satisfactorily completed prior to termination. Payment for work satisfactorily completed shall be for actual costs, including reasonable salaries and travel expenses of the UNDERSIGNED to and from meetings called by the CITY at which the UNDERSIGNED is required to attend, but shall not include any loss of profit of the UNDERSIGNED. In the event of such termination, the CITY may proceed to complete the services in any manner deemed proper by the CITY, either by the use of its own forces or by resubmitting to others. In either event, the UNDERSIGNED shall be liable for all costs in excess of the total contract price under his Agreement incurred to complete the services herein provided for and the costs so incurred may be due or that may thereafter become due to the UNDERSIGNED under and by virtue of this Agreement. B. The CITY may, without terminating this Agreement or taking over the services, furnish the necessary materials, equipment, supplies and/or help necessary to remedy the situation, at the expense of the UNDERSIGNED. Page 7 ARTICLE XIV ADJUSTMENTS IN SERVICES No claims for extra services, additional services or changes in the services will be made by the UNDERSIGNED without written Agreement with the CITY prior to the performance of such services. ARTICLE XV EXECUTION BECOMES EFFECTIVE This Agreement will be effective upon execution of the contract by and between the UNDERSIGNED and the CITY. ARTICLE XVI AGREEMENT AMENDMENTS This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and there are not oral understandings, statements or stipulations bearing upon the meaning or effect of this Agreement, which have not been incorporated herein. This Agreement may only be modified, amended, supplemented or waived by a written instrument executed by the parties except as may be otherwise provided therein. ARTICLE XVII GENDER AND NUMBER The use of any gender in this Agreement shall be applicable to all genders, and the use of singular number shall include the plural and conversely. ARTICLE XVIII NOTICES AND AUTHORITY A. The UNDERSIGNED agrees to send all notices required under this Agreement to the City Manager of the City of the Colony, or his designee, at 6800 Main Street, The Colony, Texas 75056-1133. The UNDERSIGNED understands that only the City Manager or his designees has the authority to represent the CITY or bind the CITY under this Agreement. B. The CITY agrees to send all notices required under this Agreement to the UNDERSIGNED at: Halff Associates, Inc. Jerry F. Roberts, P.E. Vice President 4000 Fossil Creek Boulevard Fort Worth, Texas 76137 Page 8 ARTICLE IX CLOSURE IN ~TNESS WHEREOF, the parties hereto have executed this Agreement on this the day of r fZ cS ,~OG. .2flKA{, By: Dale Cheatham By: CITY: g~~ Title: City Manager Title: Address: 6800 Main Street The Colony, Texas 75056-1333 Address: 4000 Fossil Creek Boulevard Fort Worth, Texas 76137 Attest: Ap roved as to Content: ~r Page 9 EXHIBIT "A" SCOPE OF WORK for Construction Plans, Specifications and Estimates Major Thoroughfare Roadways in THE COLONY 1. Description: The project will involve the construction/reconstruction of two (2) major thoroughfare roadways; along with associated drainage, water, sanitary sewer gravity main and force main, streetscape and traffic signal improvements. The roadways will be designed and bid in two separate packages as follows: A. Memorial Drive - Memorial Drive is classified as a 5D-A. It will ultimately be constructed as a six lane divided major arterial with 12-foot lanes. At this time, construction will provide for only the four outside lanes. The project will include construction two segments. 1. Construction of the eastbound two lanes of Memorial Drive from Blair Oaks to Paige Road. The westbound two lanes have been built. The total length of this segment is approximately 3,200 If. 2. Construction of the eastbound two lanes of Memorial Drive from Worley Drive to South Colony Boulevard. The westbound two lanes have been built. The total length of this segment is approximately 1,700 If. Memorial Drive construction will include paving, drainage, streetlight, and streetscape improvements. Sidewalks are not included. It is assumed these will be constructed with future development. B. Paige Road - This roadway segment extends from South Colony Boulevard to North Colony Boulevard. Paige Road is classified as a 5D-B and will be constructed to six lanes divided with 11-foot lanes. The total length of this segment is 5,200 If Paige Road reconstruction will include paving, drainage, streetlight, and streetscape improvements. All water and sanitary sewer lines under new pavement will be replaced as well. The existing traffic signal at North Colony Boulevard will be replaced. Sidewalks will be A-1 replaced. Strom drain lines in the right-of-way will be replaced and upgraded in some areas. It is understood and agreed that the City may authorize design work on each package individually or all packages as a whole. C. 20-inch Force Main - A 20-inch force main is required to be constructed from the Austin Ranch Pump Station to the Stewart Creek Wastewater Treatment Plant by Year 2010 according to the Wastewater Capital Improvements Plan. Halff will prepare a route a study for the main from immediately south of SH 121 to north of North Colony Boulevard, a total distance of approximately 10,000 If. Halff will also design the section of force main along Paige Road from South Colony Boulevard to north of Yeager Street. Construction of the force main will be a part of the Paige Road reconstruction project package. It is understood and agreed that the City may authorize design work on each package individually or all packages as a whole. 2. Design Assumptions - Certain assumptions were employed in developing the scope and fee for this proposal. A. Environmental Documentation - No federal or State money will be used for design and construction. Therefore no environmental statements or studies are required. B. Construction Packages - The work will be produced, bid and constructed in two separate construction packages: (1) Contract Package "A" will include the two sections of Memorial Drive, one section being from Blair Oaks to Paige Road and the other from Worley Drive to South Colony Boulevard (Item 1.A.1 and 1.A.2. above). (2) Contract Package "B" will include Paige Road and the 20-inch force main (items 1.B. and 1.C. above). C. Design Standards - All roadways will be constructed to City standards with 8-inch jointed reinforced concrete pavement on a lime stabilized subgrade. Alley and driveway returns within street rights-of-way will be constructed as well. Design will be in accordance with City standards and latest AASHTO guidelines. A-2 3. Work Plan: A. Surveying: The Consultant shall provide surveying services, which, in general, may be defined as normal services applicable to a project of this type. The following particulars will also apply. (1) Vertical benchmarks shall be established such that all points of construction shall be within 500 feet of a benchmark. Benchmarks should not be subject to loss during construction. Fire hydrants and similar appurtenances are not to be used for benchmarks. The City will furnish one or more benchmarks for this Project. The surveyor shall establish temporary benchmarks throughout the length of the project. (2) Topographic features will be surveyed along with any and all other features needed for design, review, permitting, construction and inspection of the project. Coverage will extend beyond the proposed rights-of-way far enough to integrate the design with the adjacent properties. (3) Existing property corners, iron pins, etc. shall be tied into established existing rights-of-way. Prior to surveying on private property, the surveyor shall secure written permission from the property owners and/or tenant and shall provide the City a copy of said written permission. Should only oral permission be granted, the surveyor shall document the permission granted by letter to the property owner/tenant, with a copy to the City. If permission cannot be obtained, the City will assist or other arrangements worked out. B. Right-of-Way Determination: Right-of-way plans, exhibits and legal descriptions for all right-of-way and temporary and permanent easement acquisition required for construction of the project will be prepared as follows: (1) Right-of-way plans shall include City title block, location map, monumention, ties to project centerline, area required, area remaining, parcel number, owner of record, and existing easements. Right-of-way plans shall be included in the construction plans. (2) Individual Exhibits shall be on 8-1/2" x 14" paper and shall include area required, area remaining, parcel number, and owner of record. Individual exhibits shall be stamped, dated, and signed by a Registered Professional Land Surveyor. A-3 (3) Legal descriptions shall reference volume, page and owner of record and shall be incorporated into the standard City of The Colony easement instrument document. Individual parcels shall be cross-referenced on the plan and profile sheets. (4) Upon approval of the right-of-way plans by the City, the Consultant shall then stake and flag the taking for inspection by the appraiser and property owner. The documents, including legal description shall be furnished to the City on a disk or CD ROM in Microsoft Word or WordPerfect format. C. Construction Plans: The Consultant shall develop construction plans for review, permitting, bidding, construction, inspection and record keeping. In general, construction plans shall be consistent with normal practice for projects of this nature. The following particulars will also apply. The construction plans will consist of numerous sheets ordered as follows: (1) Title Sheet - (Sheet No.1). The title sheet shall include a location map. It shall also include a sheet index with drawings numbered consecutively and without subscripts. Additionally, the title sheet shall show the project name, project number, date, City logo, Consultant's name, address, and telephone number and other items as may be specified. (2) Proiect Layout Sheet(s). The project layout sheet(s) will be drawn to a scale of 1" = 1 00' and laid out with the north arrow up or to the right. The purpose of the project layout is to depict the project in a simplified view. Major items of work will be shown without excessive detail. This sheet(s) will include a listing of abbreviations, legend, general notes, and key map. (3) Typical Sections. Typical sections shall be drawn to scales of 1" = 5' hand 1" = 2' v and shall depict a view looking north or east. As a minimum, typical sections will be drawn showing the relationship of the proposed street and existing and proposed improvements. Typical sections will include existing roadways, utilities, right-of-way lines, etc., along with all proposed utility and highway improvements and will depict all significant items of work. (4) Plan and Profile Sheets. Plan-profile sheets will be arranged from south to north and from west to east, with the north arrow up or to the right on the sheet. Plan-profile sheets will be drawn to scales of 1" = 20' hand 1" = 4' v. Stationing will be from south to north or west to east with the beginning station being set at approximately 0+00. Each plan-profile sheet will include no more than 500 feet of street; thus, leaving ample margins both left and right. The plan A-4 and profile station will align vertically on the sheet with the proposed centerline drawn parallel to the profile grid. When there is a centerline curvature, the plan-profile should be drawn so that as much of the plan view is in alignment as possible. Plan-profile sheets shall depict all existing and proposed items pertinent to the project. (5) Detail Sheets. The City's standard drawings will be used as a beginning point in developing standard details for this project. They will be reviewed and modified for this project. Where other agency standards are used, they shall be reduced as necessary to fit on the City's standard sheet format with complete title block. (6) Miscellaneous. Construction plans will also address erosion control, traffic control (including detours, road closures, signing, barricading, etc.) and all other improvements. (7) Cross Sections. Cross sections shall be drawn to scales of 1" = 5' hand 1" = 5' v on sheets of 1" grids Hand V. They shall be arranged from bottom to top of the sheet looking up station and shall show existing and proposed features and improvements. Generally, no more than twelve (12) sections per sheet are to be plotted. Each section should extend beyond the easement and rights-of-way a sufficient distance to clearly show the relationship between the proposed improvements and the existing properties. Full sections will be drawn at critical locations, such as steep driveways, retaining walls, and at maximum spacings of 200 feet. (8) Review Plans - Schematic Plans will be prepared and submitted at the 30% milestone. Preliminary plans shall then be prepared and submitted at the 60% milestone. Final plans shall be prepared and submitted at the 100% milestone. Also, the Consultant may submit plan sheets or working drawings to the City for review and comment to reduce the number of revisions that otherwise would be required. During development of the plans, the Consultant shall attend meetings as needed. The Consultant shall, in company with the City, perform at least one plans-in-hand review. (9) Deskin - The design of the project shall be in general accordance with the City of The Colony ordinances, standard details, and good engineering practices. During the design phase, the Consultant shall contact various utility companies and obtain information relating to existing utility lines. The design should avoid major utility relocations, where practical. When required, proposed relocations or replacements will be shown in plan and profile. A-5 (10) Prints - The Consultant shall provide prints of construction plans for review and permitting. Two sets of plans will be submitted to the City for each review stage. The Consultant will provide utility companies with copies of 60% plans for review. The Engineer will run thirty-five (35) sets of half-size prints for bidding and construction. (11 )General - Construction plans shall be furnished full size and half- size. Full size construction plans shall be on 4 mil, double matt, mylar sheets measuring 22" x 34" overall dimensions. The City's standard format shall be used. All prints shall be furnished on 22" x 34" sheets. Construction plans shall be suitable for half-scale reduction and shall be provided as follows: one set of 11" x 17" paper originals drawn by laser plotter. (12)Generic Sheet List - Following is a general list of plan sheets required for each construction package. (a) Cover Sheet (b) Project Layout Sheet (c) General Notes and Legend (d) Typical Paving Sections (e) Right-of-Way Maps (f) Paving Plan and Profile Sheets (g) Detailed Intersection Grading (h) Drainage Area Map (i) Drainage and Inlet Calculations U) Drainage Plan and Profile Sheets (k) Storm Drain Lateral Profiles (I) Water and Sanitary Sewer Line Plans and Profiles (m)Erosion Control Plan (n) City of The Colony Paving and Sidewalk Standard Details (0) City of The Colony Storm Drain Details (p) Box Culverts Details (q) City of The Colony Water Standard Details (r) City of The Colony Wastewater Standard Details (s) Miscellaneous Details (t) Streetscape Plans and Details (u) Irrigation Plans and Details (v) Pavement Markings Plans and Details (w)Traffic Signal Layouts (x)Traffic Signal Installation Details (y) Roadway Lighting Plans and Details (z) Construction Sequencing and Temporary Traffic Control Plans and Details (aa) Roadway Cross Sections A-6 D. Specifications: The Consultant shall prepare a project manual and technical specifications required for bidding and constructing the project. The project manual will be provided in the City's standard format. Only specifications amending or supplementing COG specifications need be furnished. Project manual, specifications, bid items and quantities shall be furnished on hard copy and by electronic file. E. Estimates: Estimates of probable cost will be developed at each milestone submittal. F. Bidding, Construction, Closure: (1) Bidding - During the bidding phase, the Consultant will prepare bid documents and assist the City in advertising of the project for bids. The consultant will address technical questions and prepare addenda and issue to the bidders. The Consultant shall attend a pre-bid meeting, if required, and prepare minutes. The Consultant will tabulate bids and make recommendation for award of contract. (2) Construction - The Consultant will prepare an agenda, attend the pre-construction meeting and prepare minutes of the meeting. The Consultant's design engineer and/or project manager shall visit the site at least once per calendar month to evaluate the general progress of the construction. Monthly reports shall be prepared and forwarded to the City outlining any deviations noted from the requirements of the contract documents. The Consultant will not be responsible for the contractor's work, nor shall the Consultant be required to perform inspection services. The Consultant shall assist the City in the preparation of field changes and/or change orders that may become necessary for the orderly completion of the project. The Consultant shall assist the City in performing a final walk-through inspection and prepare a written "final punch list". (3) Closure - The Consultant shall prepare "record" plans, incorporating all changes and known variations to provide the City the best possible set of record drawings. The final record drawings shall be furnished on mylar, of the same specification as provided for in the Agreement and on CD. G. Permitting. The Consultant shall prepare applications to the Texas Department of Licensing and Review (TDLR) for code review of sidewalks and ramps. After construction the consultant shall notify TDLR of completion date. Consultant shall address any questions or issues by TDLR as a result of review and inspection. TDLR review and inspection fees shall be paid by the City. A-7 H. Geotechnical Investigation. The Consultant shall engage a geotechnical sub-consultant to provide sub-surface investigations in the form of boring logs. Borings shall be of sufficient depth and spacing to provide general information needed for the design and construction of the project. The geotechnical sub-consultant shall be selected by the Consultant using the standard two-step method complying with applicable state laws and guidelines established by the Texas State Board of Registration for Professional Engineers. The City should be contacted for concurrence of the recommended geotechnical sub-consultant. I. 20-inch Force Main Route Study. The Consultant shall perform a route study for the 20-inch force main to extend from south of SH 121 to north of North Colony Boulevard. The Consultant will study at least two alternatives for location of the force main. The alternatives will consider construction costs, right-of-way requirements, permitting issues, utility conflicts, coordination with other City projects, and construction issues associated with construction traffic control. No hydraulic studies or modeling are included. A specific recommendation will be made the route. A brief written report will be provided with the route recommendation shown on a photographic base map showing property lines and major improvements. Estimates of probable cost will be provided for each alternative. J. Miscellaneous. Miscellaneous services not provided for herein and not generally associated with a project of this type will be paid for under an amendment to this Agreement and for an additional fee. 3. Schedule: A. Completion of design surveys and geotechnical investigation: 90 calendar days from date of written authorization to begin work. B. Submittal of force main route study: 120 calendar days from date of written authorization to begin work. C. Completion/furnishing 30% schematic plans, specifications, bid quantities, and construction cost estimate: 135 calendar days from date of written authorization to begin. D. Completion/furnishing 60% preliminary plans, specifications, bid quantities, and construction cost estimate: 195 calendar days from date of written authorization to begin. E. Completion/furnishing 100% final plans, specifications, bid quantities, and construction cost estimate: 255 calendar days from date of written authorization, excluding City review times. A-8 F. Bidding services: 30 calendar days from city's approval of final plans. G. Construction services: In accordance with construction schedule (estimated to be 390 calendar days total) H. Closure: 60 calendar days from the date of construction completion. A-9 EXHIBIT "B" COMPENSATION for Construction Plans, Specifications and Estimates Major Thoroughfare Roadways in THE COLONY Exhibit "B" defines the basis of compensation to the Consultant for the services rendered. A. Basic Fee Services - The basic fee for the services for both construction packages as described in Exhibit "A" will be $506,000 which includes printing, direct costs and computer charges normally associated with production of these services and reproduction of up to fifteen (15) sets of plans for review purposes for each construction package. The basis of compensation for Basic Fee services shall be as follows: 1. $136,600 for Phase I - Schematic Design Phase (30% submittal) 2. $136,600 for Phase 11- Preliminary Design Phase (60% submittal) 3. $182,200 for Phase III - Final Design Phase (100% submittal) 4. $50,600 for Construction Phase Services Items (1) through (4) will be billed in accordance with the billing schedule in Item D. below. B. Special Services - Special Services will be paid for lump sum. The following table summarizes special services fees. TASK DESCRIPTION FEE 1. Design Surveys $54,000 2. Right-of-Way Parcel Preparation $12,000 3. Geotechnical Investigation $15,800 4. 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Q) .!:: I-- ACORD CERTIFICATE OF LIABILITY INSURANCE I DATE (MMIDDIYYVY) TM 11/07/2005 PRODUCER (972) 581. 4800 FAX (972)581-4850 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Bell Insurance Agency ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 16980 Dallas Parkway ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Dallas, TX 75248 Suzanne Flores INSURERS AFFORDING COVERAGE NAlC# INSURED HalfY Associates, Inc. INSURER A: Republic Companies Group Mr. Roger Burns INSURER B: Continental Casualty Company(CNf) 8616 Northwest Plaza Dr. INSURER C: Dallas, TX 75225 INSURER D INSURER E COVERAGES 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 CONTRACT OR 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR DO' TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE Pg~!f/ EXPIRATION LIMITS GENERAL LIABILITY TXP56543985.00 07/12/2005 07/12/2006 EACH OCCURRENCE $ 1,000,000 - X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 100,000 - =:J CLAIMS MADE [!] OCCUR 10,000 MED EXP (Anyone person) $ A X Contractual Liab PERSONAL & ADV INJURY $ 1,000,000 - GENERAL AGGREGATE $ 2,000,000 - 2,000,00(J GEN'L AGGREGA TE LIMIT APPLIES PER PRODUCTS - COMP/OP AGG $ I POLICY [Xl jfc?-i n LOC AUTOMOBILE LIABILITY TCA5643986.00 07/12/2005 07/12/2006 COMBINED SINGLE LIMIT 7 (Ea accident) $ I,OOO,OO(J ANY AUTO r-- ALL OWNED AUTOS BODILY INJURY J-- {Per person} $ SCHEDULED AUTOS A rx HIRED AUTOS BODIL Y INJURY X $ NON-QWNED AUTOS (Per accident) - - PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONL Y - EA ACCIDENT $ =1 ANY AUTO OTHER THAN EA ACC $ AUTO ONL Y AGG $ EXCESS/UMBRELLA LIABILITY UMB5643987.00 07/12/2005 07/12/2006 EACH OCCURRENCE $ 5,000,00(J m OCCUR D CLAIMS MADE AGGREGA TE $ 5,000,00(J A $ f;I DEDUCTIBLE $ X RETENTION $ 10,00(J $ WORKERS COMPENSATION AND WC5643988 07/12/2005 07/12/2006 X I T~~~T~J.~; I IO:~- EMPLOYERS' LIABILITY EL EACH ACCIDENT I,OOO,OO(J A ANY PROPRIETOR/PARTNER/EXECUTIVE $ OFFICER/MEMBER EXCLUDED? EL DISEASE - EA EMPLOYEE $ I,OOO,OO(J If yes, describe under I,OOO,OO(J SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT $ p~mWESSIONAL LIABILITY AEE008220956 07/09/2005 07/09/2006 $5,000,000 Per Claim Limit B r'laims Made $5,000,000 Aggregate Limit .f,ESCRIPTlON OF OPERATIONS / LOCATIONS I VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS ~er: Major Thoroughrare Roadways (P.3842) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL City or The Colony 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Att'n: Gordon Scruggs, P.E. City Engineer BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 6800 Main Street OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENT A TIVES. The Colony, TX 75056 AUTHORIZED REPRESENTATIVE ::z:'~ -4/+ Thomas J. Ashley/SHF ACORD 25 (2001/08) FAX: (972)624-2317 @ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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 rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) eMJ ENGINEERING, INC. 7636 Pebble Drive Fort Worth, Texas 76118 www.cmjengr.com Proposal No. 04-882 December 13, 2004 Halff Associates, Inc. 4000 Fossil Creek Boulevard Fort Worth, Texas 76137 Attn: Mr. Jerry F. Roberts, P.E. PROPOSAL FOR: GEOTECHNICAL ENGINEERING SERVICES ROAD IMPROVEMENTS AND NEW ROADS THE COLONY, TEXAS Dear Mr. Roberts: INTRODUCTION CMJ Engineering, Inc. (CMJ) is pleased to submit a proposal for providing geotechnical engineering services in conjunction with the above-referenced project. We prepared this proposal based on a December 10, 2004 meeting with Mr. Jerry Roberts, P.E. and on the preliminary scope submitted to this office. The project, as currently planned, will consist of refurbishing or adding new lanes to the following roads in The Colony. 1. Memorial Drive - Blair Oaks to Paige 2. Paige - South Colony to North Colony 3. Memorial Drive - Worley past Morningstar For purposes of this proposal, it is assumed that all borings are accessible to truck-mounted drilling equipment. In addition, it is assumed that underground utilities at boring locations will be coordinated by CMJ Engineering, Inc. Phone (817) 284-9400 Fax (817) 589-9993 Metro (817) 589-9992 CMJ ENGINEERING, INC. Halff Associates, Inc. Proposal No. 04-882 December 13, 2004 Page 2 SCOPE OF SERVICES I. BASIC SERVICES A. SUBSURFACE EXPLORATION Based on past experience in the vicinity of the project, we anticipate subsurface conditions to consist of soils and rock of the Eagle Ford geological formation. Experienced drillers and technicians will evaluate subsurface conditions with the following field program: 1. Memorial Drive - West - 6 borings to 12 feet 2. Paige Road - 11 borings to 12 feet 3. Memorial Drive - East - 7 borings to 12 feet The field personnel will drill the borings using truck-mounted equipment. Cohesive and non- cohesive soil samples will be obtained using 3-inch diameter Shelby tube samplers and 2-inch diameter standard split-spoon samplers, respectively. A soils logger will extrude the samples in the field, check the samples for consistency with a hand penetrometer, carefully wrap them to preserve their condition, and return them to the laboratory for testing. A log of each boring will be prepared to document field activities and results. CMJ's personnel will stake the boring locations using normal taping procedures. Approximate locations of the borings will be shown on the plan of borings. Precise surveying of boring locations and elevations is not included in the cost estimate. These services may be provided as Additional Services upon request. At the completion of drilling operations, boreholes will be backfilled with drill cuttings and plugged at the surface by hand tamping. B. LABORATORY SERVICES Considering the planned facilities, anticipated soil conditions and geology, laboratory tests will be required for classification purposes, and to determine strength characteristics. The following types of tests are therefore recommended: · moisture content and soil identification · liquid and plastic limit determinations · unconfined compression tests on soil · unit weight determinations · Eades and Grim lime series tests · Soluble sulfate test eMJ ENGINEERING, INC. Halff Associates, Inc. Proposal No. 04-882 December 13,2004 Page 3 The specific types and quantities of tests will be determined based on geologic conditions encountered in the borings. C. ENGINEERING SERVICES An engineering report will be prepared for each road section to present the results of the field and laboratory data together with our analyses of the results and recommendations. We will provide three copies of the report. The report will address: · general soil and ground-water conditions · recommendations for pavement subgrade stabilization · potential effects of high sulfate soils and remediation thereof · earthwork recommendations Items other than those specified above, which are revealed by these studies or are necessitated by a change in project scope, may require revised field, laboratory, and engineering services. These services, if required and requested, will be performed as Additional Services. Additional Services are described in Section II. D. COMPENSATION FOR BASIC SERVICES It is proposed that the Basic Services described above be performed on a unit price basis, in accordance with the attached Basic Services Cost Estimates. Based on the anticipated scope and the attached Basic Services Cost Estimates, the total cost of the Basic Services should be: 1. Memorial Drive West - 2. Paige Road - 3. Memorial Drive East - $4,500 $6,800 $5,000 The estimated costs shown in this proposal are based on the anticipated soil conditions. The final invoice will be based on the specific quantities drilled and tested. If unanticipated conditions are encountered during drilling, we will notify you accordingly. E. SCHEDULE FOR BASIC SERVICES Weather permitting, we plan to initiate these studies within seven days of receipt of notice to proceed, and anticipate that two working days will be required to complete the subsurface exploration for the site (weather conditions permitting). You will receive the final report approximately three weeks following the completion of the field phase. We will make preliminary design data available sooner if necessary. eMJ ENGINEERING, INC. Halff Associates, Inc. Proposal No. 04-882 December 13, 2004 Page 4 II. ADDITIONAL SERVICES A. AUTHORIZATION AND SCOPE Additional Services will be performed only if specifically requested and authorized by Client. Additional Services may consist of the following: · Additional subsurface exploration, including quantities or items other than described in Basic Services. · Bulldozer or other equipment services required to achieve access to boring locations. · Stand-by time or time in excess of one-half hour required for travel between boring locations. · Additional laboratory services, including quantities or items other than described in Basic Services. · Additional insurance coverage or limits (if available) other than CMJ's standard policies. · Additional engineering services, including personnel time and expenses for items not specifically described in Basic Services. This may include, but is not limited to, additional meetings requested by Client or Client's other consultants, assistance to Client in dealing with regulatory agencies, preparation and engineering assistance in legal proceedings, and evaluation of alternative designs for the project or relocation of structure, following initial submittal of the geotechnical report. · Additional copies of the report, other than the number described in Basic Services. · Any other required or requested services authorized by Client, other than those specifically described in Basic Services. B. COMPENSATION AND SCHEDULE FOR ADDITIONAL SERVICES Additional Services, when authorized by Client, will be in accordance with our Schedule of Fees. Additional Services will be performed at reasonable times and within reasonable schedules as requested by Client. Authorized Additional Services will be billed as a separate item on invoices and a description of the Additional Services will be provided. III. TERMS AND CONDITIONS The scope of services will be performed pursuant to the attached CMJ Terms for Geotechnical Engineering Services, which is incorporated into this proposal. Thank you for the opportunity to present this proposal. Please sign the attached Terms for Geotechnical Engineering Services and return one complete copy of this proposal as your authorization to proceed. Facsimile signatures shall be sufficient unless originals are requested eMJ ENGINEERING, INC. Halff Associates, Inc. Proposal No. 04-882 December 13, 2004 Page 5 by a third party. Do not hesitate to call if you have any questions or if you have suggestions regarding changes to the agreement or to the proposed scope of services. * * * * We look forward to working with Halff Associates, Inc. on this project. Respectfully submitted, eMJ ENGINEERING, INC. copies submitted: (1) Mr. Jerry F. Roberts, P.E.; Halff Associates, Inc. (by fax) (2) Mr. Jerry F. Roberts, P.E.; Halff Associates, Inc. (by mail) CMJ ENGINEERING, INC. GEOTECHNICAL ENGINEERING SERVICES BASIC SERVICES COST ESTIMATE #2 PROPOSAL: DATE: PROJECT: 04-882 DECEMBER 13, 2004 PAIGE ROAD SOUTH COLONY TO NORTH COLONY THE COLONY, TEXAS SUBSURFACE EXPLORATION Quant. Unit $ Total $ Mobilization 1 150.00 150.00 Soil Drilling-Intermittent Sampling (0-25 ft.) 132 10.00 1,320.00 THO Cone and SPT 6 20.00 120.00 Underground Utility Check 5 60.00 300.00 Subtotal Subsurface Services $ 1,890.00 LABORATORY SERVICES Moisture Content and Soil Identification 88 6.00 528.00 Liquid and Plastic Limits 11 45.00 495.00 Unconfined Compressive Strength-Soil 5 40.00 200.00 Unit Weight 11 10.00 110.00 Free Swell 2 135.00 270.00 Soluble Sulfates 11 11 0.00 1,210.00 Subtotal Laboratory Services $ 2,813.00 ENGINEERING SERVICES Senior Principal Engineer 1 105.00 105.00 Staff Engineer 22 60.00 1,320.00 Drafting & Secretarial Support 16 35.00 560.00 Misc. Expense (report production, mileage, etc.) 1 100.00 100.00 Subtotal Engineering Services $ 2,085.00 TOTAL ESTIMATE $ 6,788.00 SAY $6,800.00 CMJ ENGINEERING, INC. GEOTECHNICAL ENGINEERING SERVICES BASIC SERVICES COST ESTIMATE #3 PROPOSAL: 04-882 DATE: DECEMBER 13, 2004 PROJECT: MEMORIAL DRIVE SOUTH COLONY AND MORNINGSTAR THE COLONY, TEXAS SUBSURFACE EXPLORATION Quant. Unit $ Total $ Mobilization 1 150.00 150.00 Soil Drilling-Intermittent Sampling (0-25 ft.) 84 10.00 840.00 THO Cone and SPT 4 20.00 80.00 Underground Utility Check 4 60.00 240.00 Subtotal Subsurface Services $1,310.00 LABORATORY SERVICES Moisture Content and Soil Identification 56 6.00 336.00 Liquid and Plastic Limits 7 45.00 315.00 Unconfined Compressive Strength-Soil 3 40.00 120.00 Unit Weight 7 10.00 70.00 Free Swell 2 135.00 270.00 Soluble Sulfates 7 110.00 770.00 Subtotal Laboratory Services $ 1,881.00 ENGINEERING SERVICES Senior Principal Engineer 1 105.00 105.00 Staff Engineer 19 60.00 1,140.00 Drafting & Secretarial Support 12 35.00 420.00 Misc. Expense (report production, mileage, etc.) 1 100.00 100.00 Subtotal Engineering Services $ 1,765.00 TOTAL ESTIMATE $ 4,956.00 SAY $5,000.00 TERMS FOR GEOTECHNICAL ENGINEERING SERVICES THE AGREEMENT This AGREEMENT is made by and between CMJ ENGINERING, INC., hereinafter referred to as GEOTECHNICAL ENGINEER, and HALFF ASSOCIATES, INC., hereinafter referred to as CLIENT. The AGREEMENT between the parties consists of these TERMS, the attached proposal identified as Proposal No. 04-882, dated December 13, 2004 and any exhibits or attachments noted in the PROPOSAL. Together, these elements will constitute the entire AGREEMENT superseding any and all prior negotiations, correspondence, or agreements either written or oral. Any changes to this AGREEMENT must be mutually agreed to in writing. STANDARD OF CARE CLIENT recognizes that subsurface conditions may vary from those observed at locations where borings, surveys, or explorations are made, and that site conditions may change with time. Data, interpretations, and recommendations by GEOTECHNICAL ENGINEER will be based solely on information available to GEOTECHNICAL ENGINEER. GEOTECHNICAL ENGINEER is responsible for those data, interpretations, and recommendations, but will not be responsible for other parties' interpretations or use of the information developed. Services performed by GEOTECHNICAL ENGINEER under this AGREEMENT are expected by CLIENT to be conducted in a manner consistent with the level of care and skill ordinarily exercised by members of the geotechnical engineering profession practicing contemporaneously under similar conditions in the locality of the project. Under no circumstance is any warranty, expressed or implied, made in connection with the providing of geotechnical engineering services. SITE ACCESS AND SITE CONDITIONS CLIENT will grant or obtain free access to the site for all equipment and personnel necessary for GEOTECHNICAL ENGINEER to perform the work set forth in this AGREEMENT. CLIENT will notify any and all possessors of the project site that CLIENT has granted GEOTECHNICAL ENGINEER free access to the site. GEOTECHNICAL ENGINEER will take reasonable precautions to minimize damage to the site, but it is understood by CLIENT that, in the normal course of work, some damage may occur and the correction of such damage is not part of this AGREEMENT unless so specified in the PROPOSAL. CLIENT is responsible for accurately delineating the locations of all subterranean structures and utilities. GEOTECHNICAL ENGINEER will take reasonable precautions to avoid known subterranean structures, and CLIENT waives any claim against GEOTECHNICAL ENGINEER arising from damage done to subterranean structures and utilities not identified or accurately located. SAMPLE DISPOSAL GEOTECHNICAL ENGINEER will retain samples transported to the geotechnical laboratory for testing for a period of thirty (30) days following submission of the report covering those samples. Further storage or transfer of samples can be made at CLIENT'S expense upon CLIENT'S prior written request. MONITORING If GEOTECHNICAL ENGINEER is retained by CLIENT to provide a site representative for the purpose of monitoring specific portions of construction work or other field activities as set forth in the PROPOSAL, then this phrase applies. For the specified assignment, GEOTECHNICAL ENGINEER will report observations and professional opinions to CLIENT. No action of GEOTECHNICAL ENGINEER or GEOTECHNICAL ENGINEER'S site representative can be construed as altering any AGREEMENT between CLIENT and others. GEOTECHNICAL ENGINEER will report to CLIENT any observed geotechnically-related work which, in GEOTECHNICAL ENGINEER'S professional opinion, does not conform with plans and specifications. The GEOTECHNICAL ENGINEER has no right to reject or stop work of any agent of the CLIENT. Such rights are reserved solely for CLIENT. Furthermore, GEOTECHNICAL ENGINEER'S presence on site does not in any way guarantee the completion or quality of the performance of the work of any party retained by CLIENT to provide field or construction-related services. GEOTECHNICAL ENGINEER will not be responsible for and will not have control or charge of specific means, methods, techniques, sequences or procedures of construction or other field activities selected by any agent or agreement or CLIENT, or safety precautions and programs incident thereto. BILLING AND PAYMENT CLIENT wi." pay GEOTECH~J1C/I,L ENGINEER in ac:;cordance with the procedlJ~es indicated in the PROPOSAL and it~ ~lt~C~~s. Invoices Will be submlltea to CLIENT by G~OT~CHNICI'.L ENGINEER, and \lo',lIee due and payable upon presentat'e.. f I IT objects to all or any portion of any invoic:;e, CLIENT will so notify G~OTECHNIC^L ~NGI~lEER in writing within fourte;~ '(11) calendar days of the invoice date, identify the cause of disagreement, ana pay when dlJe that portion of the invoice not in d;;~~t~. In the absence of '.witten notification descrieed above, the amount as stated on the in'Joice will be paid. Invoices are delinqlJent if payment has. not been received within thirty (3Q) d3Ys from date of invoice. At the ~P~i:a~~~h~ GEOTECHNIC/'.L E~IGINEER, CLIENT Will pay an additional charge of one and one half (1.5) percent per montA (or h . PROPOSAL NO. 04-882 TERMS - Page 1 of 3 CMJ ENGINEERING, INC. percentage allowed by law, whichever is lower) en any delinqblent amoblnt, except for any portion of the invoiced amount in disputo and resolved in favor of CLIENT. Dispblted amounts withheld by the client which are sblbseqblently resolved in favor of the geotechnical engineer will carry the additional charge, as described above, effective thirty (30) days from the date of the original invoice. In the event CLIENT fails to pay GEOTECHNICAL ENGINEER within sixty (60) days after invoices are rendered, CLlE~lT agrees that GEOTECHNICAL ENGINEeR will h3'/e the right to consider the failblre to pay the GEOTECHNICAL ENGINEER's invoice as a br.oach of this I\GREEMENT. TERMINATION This AGREEMENT may be terminated by either party seven (7) days after written notice in the event of any breach of any provision of this AGREEMENT or in the event of substantial failure of performance by the other party, or if CLIENT suspends the work for more than three (3) months. In the event of termination, GEOTECHNICAL ENGINEER will be paid for services performed prior to the date of termination plus reasonable termination expenses, including, but not limited to the cost of completing analyses, records, and reports necessary to document job status at the time of termination. RISK ALLOCATION Many risks potenti311y affect GEOTECHNICAL ENGINEER by virtble of entering into this I\GREEMENT to perform profession31 engineering services on behalf of CLIENT. The principal risk is the potential for human error by GEOTECHNIC.'\L ENGINEER. For CLlHlT to obtain the benefit of a fee which incllJdes a nominal allo'Nance for dealing with GEOTECHNICAL ENGINEER'S liability, CLIENT 3grees to limit GEOTECHNICAL ENGI~JEER'S 1i3bility to CLIENT and to all other parties fer claims arising out of GEOTECHNICAL ENGINEeR'S perform:mce of the services described in this AGREEMENT. The aggregate liability of GEOTECHNICl\L ENGINEER will not exceed the amoblnt of the GEOTECHNICAL ENGINEER'S fee for negligent professional acts, errors, or omissions. I I I . (inclblding negligence), strict or statutory liability, or any other Gause of action, except for willful misGonduct or gross negligence. The parties also agree that CLIENT will not seek d3mages in excess of the limitations indirectly throblgh sblits with other parties who may join GEOTECHNICl\L ENGINEER as a third party defendant. Parties me3ns CLIENT and GEOTECHNICAL ENGINEER and their officers, employees, agents, affiliates, and subcontractors. Both CLIENT 3nd GEOTECHNICl\l ENGINEER agree that they will not be liable to each other, under 3ny circumstances, for special, indirect, consequential, or punitive damages arising out of or related to this AGREEMENT. DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS CLIENT represents that CLIENT has made a reasonable effort to evaluate if hazardous materials are on or near the project site, and that CLIENT has informed GEOTECHNICAL ENGINEER of CLIENT's findings relative to the possible presence of such materials. Hazardous materials may exist at a site where there is no reason to believe they could or should be present. GEOTECHNICAL ENGINEER and CLIENT agree that the discovery of unanticipated hazardous materials constitutes a changed condition mandating a renegotiation of the scope of work or termination of services. GEOTECHNICAL ENGINEER and CLIENT also agree that the discovery of unanticipated hazardous materials may make it necessary for GEOTECHNICAL ENGINEER to take immediate measures to protect health and safety. CLIENT agrees to compensate GEOTECHNICAL ENGINEER for any equipment decontamination or other costs incident to the discovery of unanticipated hazardous materials. GEOTECHNICAL ENGINEER agrees to notify CLIENT when unanticipated hazardous materials or suspected hazardous materials are encountered. CLIENT agrees to make any disclosures required by law to the appropriate governing agencies. CLIENT also agrees to hold GEOTECHNICAL ENGINEER harmless for any and all consequences of disclosures made by GEOTECHNICAL ENGINEER which are required by governing law. In the event the project site is not owned by CLIENT, CLIENT recognizes that it is CLIENT'S responsibility to inform the property owner of the discovery of unanticipated hazardous materials or suspected hazardous materials. Notwithstanding any other provision of the AGREEMENT, CLIENT waives any claim against GEOTECHNICAL ENGINEER arising from GEOTECHNICAL ENGINEER'S discovery of unanticipated hazardous materials or suspected hazardous materials, including, but not limited to, any costs created by delay of the project and any cost associated with possible reduction of the property's value. CLIENT will be responsible for ultimate disposal of any samples secured by GEOTECHNICAL ENGINEER which are found to be contaminated. This includes any soil or rock cuttings, and contaminated drilling or wash water which is generated as a consequence of drilling activities. DISPUTES RESOLUTION All claims, disputes, and other matters in controversy between GEOTECHNICAL ENGINEER and CLIENT arising out of or in any way related to this AGREEMENT will be submitted to "alternative dispute resolution" (ADR) before and as a condition precedent to other remedies provided by law. If and to the extent CLIENT and GEOTECHNICAL ENGINEER have agreed on methods for resolving such disputes, then such methods will be set forth in the "Alternative Dispute Resolution Agreement" which, if attached, is PROPOSAL NO. 04-882 TERMS - Page 2 of 3 CMJ ENGINEERING, INC. incorporated into and made a part of this AGREEMENT. If no specific ADR procedures is set forth in this AGREEMENT, then it shall be understood that the parties shall submit disputes to mediation as a condition precedent to litigation. If a dispute at law arises from matters related to the services provided under this AGREEMENT and that dispute requires litigation instead of ADR as provided above, then: (1) the claim will be brought and tried in judicial jurisdiction of the court of the county where GEOTECHNICAL ENGINEER's principal place of business is located and CLIENT waives the right to remove the action to any other county or judicial jurisdiction, and (2) the prevailing party will be entitled to recovery of all reasonable costs incurred, including staff time, court costs, attorneys' fees, and other claim related expenses. 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 this 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 below by CLIENT. CLIENT By: Position President Position Date December 13. 2004 Date PROPOSAL NO. 04-882 TERMS - Page 3 of 3 CMJ ENGINEERING, INC.