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HomeMy WebLinkAboutItem 10 - Material Testing - Glade RoadMaterial Testing Award of Contract - Glade Road ECS Texas LLP BACKGROUND: The Glade Road Reconstruction Project extends from Champagne Boulevard to State Highway 360 over a length of approximately 5,750 LF The project consists of: • Water Line Construction - 8,500 LF • Storm Drainage Line Construction - 5,480 LF • Pavement Subgrade Preparation & Stabilization - 46,300 SY • Concrete Pavement - 45,000 SY The proposal includes laboratory and field testing for soil types and properties, stabilization activities, trench backfill densities, pavement subgrade densities, concrete pavement strength and others as necessary. These activities are in line with a project of this size and scope. Staff recommends approval. MI 0:\agenda\2006\6-6-06\Testing Contract — Glade Road May 31, 2006 (4:44PM) TARRANT COUNTY, TEXAS m'` / ►� Geotechnical - Construction Materials • Environmental City of Grapevine 200 South Main Street Grapevine, Texas 76051 Attn: Mr. Curtis A. Bergthold r / t1• ECS Proposal No. 19:3344 -CP Reference: Estimated Cost Proposal for Construction Engineering Services Glade Road — Roadway Improvements Tarrant County, Texas Dear Mr. Bergthold: As requested, ECS -Texas, LLP is pleased to present the following unit price and estimated cost proposal for providing materials observation and testing services during construction. We understand that the project consists of approximately 5,750 linear feet of roadway improvements, including water and storm lines. The scope of services for this project is outlined in Appendix I of this proposal. In addition to the standard services outlined in Appendix I, we also have the in-house capability to provide extraordinary services should the situation call for such efforts. Examples include acquisition and testing of concrete core samples, determination of slab levelness (F Values), location of reinforcing steel in hardened concrete, structural load tests, etc. All services provided for this project will be billed in accordance with the unit rate schedule provided as Appendix II of this proposal. These published rates are valid for 60 days from the date of this proposal. After this period these rates may need to be re-evaluated. It is our belief that all required services have been included in our unit price list and accounted for in our estimated cost. Should supplemental services be deemed necessary at a later date, they would be invoiced at the rate noted on the fee schedule in effect at that time, unless otherwise agreed upon in advance. All unit prices listed herein shall remain as stated throughout the project. The services will be rendered portal-to-portal from our office in Addison, Texas. There will be a 2 -hour minimum charge for field related services. Our unit rates are based on an 8 -hour 4950 Keller Springs Road, Suite 480, Addison, TX 75001 PH (972) 392-3222 • FAX (972) 392-0102 www.ecs-texas.com Glade Road — Roadway Improvements — Tanwt County, Texas Proposal No. 19:3344 -CP April 10, 2006 workday, Monday through Friday. Overtime in excess of 8 hours per day, or outside normal business hours of 7 a.m. to 5 p.m. or on weekends and holidays will be invoiced at a rate of 1.5 times the normal hourly rate. Every effort should be made to schedule testing prior to 3:00 p.m. on the day before services are required. If same day scheduling for technician services is problematic, the client will be notified that ECS reserved the right to charge multiplier of 1.5 times the hourly unit rate for same day services. This total estimated cost proposal is the product of careful consideration of all information available to us during preparation of this proposal. Any and all deviations from the proposed construction schedule are not included in our estimated cost and will be considered as an addition to our proposed scope of service. Additional site visits for the specific task of retesting failed tests are also not included in the estimated cost. The total estimated cost for this project is outlined in Appendix III. You will be issued daily field reports and laboratory test reports as part of our service. Because our reporting systems are fully computerized, we e-mail laboratory results within 48 hours of testing completion, and our field reports are routinely delivered within 24 to 48 hours of the performance date. All reports are e-mailed to your office in Adobe Portable Document Format (PDF). In addition to these e-mailed copies, it is our standard practice to leave a handwritten copy of the field reports at the project site each day. If deficiencies in procedures or materials are recognized in the field, the general contractor will be verbally notified as soon as possible so that the problem may be resolved prior to the performance of additional work. Deficient laboratory results are generally reported to the client, structural engineer, or general contractor by the Project Engineer. Copies of reports are also e-mailed to others as designated by the client. Invoices will be issued on a monthly basis and will provide a week by week breakdown of billing units, unless modified by request of the client. They are normally processed on or around the 10th of each month and represent costs incurred during the previous month. These invoices will also display a monthly cumulative summary of project costs to date. This monthly summary will serve as a means of monitoring Job expenses as they relate to job progress. We request that payment be rendered within 30 days of receipt of the invoice. ECS reserves the right to assess a finance charge of 1.5% per month on the outstanding balance over 30 days. ECS also reserves the right to withhold final certifications until outstanding balances have been paid in full. Glade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 Attached to this letter, and an integral part of our proposal, are our "Terms and Conditions of Service" (Appendix V). These conditions represent the current recommendations of the ASFE, the Consulting Engineers' Institute, and the Geotechnical Division of the American Society of Civil Engineers. Our insurance carrier requires that we receive written authorization prior to initiation of work, and a signed contract prior to the release of any work product. This letter is the agreement for our services. Your acceptance of this proposal may be indicated by signing and returning the enclosed copy to us. We are pleased to have this opportunity to offer our services and look forward to working with you on the project. Respectfully, ECS — Texas, LLP Jason B. Allen, S.E.T. Daniel L. Franklin, P.E. Construction Services Manager President/Principal Engineer Attachments: Appendix I - Scope of Services Appendix II - Project Unit Rates Appendix III - Estimated Costs Appendix IV - Proposal Acceptance Appendix V - Terms and Conditions of Service Glade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 • , , , •NUM A. Earthwork/Foundations: 1. Perform appropriate laboratory testing on materials proposed for use as fill, backfill, and paving subgrade in accordance with project specifications. Testing may include: a. Liquid and Plastic (Atterberg) Limits, D4318 b. Proctor Moisture Density Relationships, ASTM D-698 2. Observe placement of fill and backfill (including backfill in utility trenches and against foundation walls) to test compliance with project requirements. Perform in-place density tests as required by project specifications, and test each lift for compaction. 3. Where deficiencies are noted during fill or backfill placement, suggest and observe remedial actions, including reworking and recompacting of materials. 4. Observe lime, or cement stabilization process to ensure uniformity of application and proper mixture has been applied. 5. Provide documentation of events in the field and notify the appropriate persons upon recognition of deficiencies. B. Cast -in -Place Concrete: 1. Test and report concrete for compliance with the provisions of ACI 318, 301, 214, 304, 305 and 306, local building codes, generally accepted construction practices, and specific project requirements. 2. Observe placement of reinforcing steel and document proper size, grade, spacing cover, cleanliness, length, location and type of splices, and report compliance with project plans and specifications. 3. Sample concrete at the frequency stated in the project specifications and perform the following tests and functions: a. Confirm mix design b. Slump C. Air Content d. Temperature e. Cast test cylinders (We recommend a minimum of 1 set/day, or 1 set/ 100 cubic yards.) Sampling, testing, and curing of specimens in the field shall be performed in accordance with applicable ASTM guidelines, project requirements and ACI 301, with on-site curing conditions as provided by the contractor. Additional tests shall be performed as needed in the event deficiencies are encountered. Compliance with extreme weather procedures will also be documented. 4. Cure and test concrete cylinders in the laboratory as directed by the project specifications and in accordance with ASTM C-31 and C-39. 5. Provide documentation of events in the field and notify the appropriate persons upon recognition of deficiencies. Glade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 C. H AC Paving: Perform field density tests and observe proofrolling of subgrades, and suggest and observe corrective action at excessively soft areas prior to placement of pavement. 2. Observe the application of lime, or cement to paving subgrade to ensure the proper amount has been added and blended uniformly per project specifications. Test the treated subgrade to ensure the proper gradation of the soil has been achieved. 3. Obtain samples of the asphalt to determine the actual asphalt content, gradation of aggregates, specific gravity, lab -molded density and Hveem stability of the mixture. 4. Observe placement of base/surface course and perform appropriate in-place density tests as directed by specifications. Glade Road — Roadway Improvements — Tan -ant County, Texas Proposal No. 19:3344 -CP April 10, 2006 FIELD SERVICES Compressive Strength Testing of concrete cylinders UNIT RATE 1800 Field Technician $ 32.00/hour 7000 Certified Welding Inspector -Visual Inspection $ 45.00/hour 7005 Certified Welding Inspector -Mag Particle & U.T. $ 50.00/hour 1720 Senior Roofing Technician $ 50.00/hour 6062 Floor Flatness Survey (minimum 20,000 ft') $ 0.03/sq.ft. ENGINEERING/ADMINISTRATIVE SERVICES 4400 Sieve Analysis (includes -200) 1100 Principal Engineer (If necessary) $ 130.00/hour 1460 Project Manager (If necessary) $ 75.00/hour $ Mix Design Review $ 125.00/each 9999 Administrative/Project Management Fees 5000 10% of Invoice 6000 Compressive Strength Testing of concrete cylinders $ 11.00/each 6020 Extraction, Gradation, Rice Gravity of HMAC $ 240.00/each 6030 Asphalt Cores for Thickness and Density $ 90.00/each 5004 Standard Proctor ASTM D-698, D558 $ 125.00/each 5014 Modified Proctor ASTM D-1557, THD 113-E $ 140.00/each 4300 Atterberg Limits Tests $ 45.00/each 4400 Sieve Analysis (includes -200) $ 80.00/each 4600 Percent Passing #200 Sieve $ 25.00/each 8060 Fire Proofing Density Tests/Bond Strength $ 25.00/each 3350 Vehicle Usage $ 24.00/trip 5000 Nuclear Gauge Fee $ 30.00/day 7020 Compressive Strength Testing of CMU Block Prisms $ 90.00/each The services described above would be rendered portal-to-portal from our office in Addison, Texas. There will be a 2 -hour minimum charge for field related services. Our unit rates are based on a normal 8 -hour work day, Monday through Friday, between normal business hours of 7:00 a.m. to 5:00 p.m. Overtime beyond 8 hours/day, outside normal hours and on Saturday, Sunday and Holidays will be invoiced at a rate of 1.5 times the normal hourly rate indicated above. Scheduling should occur prior to 2:00 p.m. on the day before services are required. Glade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 Construction Schedule A total of 348 man-hours are anticipated to test site fill, paving subgrade and utility backfill. Technician Schedule: Qty Unit Rate Rate Amount 348 hr Field Technician 32.00 11,136.00 14 ea Standard Proctor Determinations 125.00 1,750.00 14 ea Atterberg Limits Tests 45.00 630.00 4 ea Lime/Cement Series 225.00 900.00 70 day Nuclear Gauge Fee 30.00 2,100.00 Subtotal, Earthwork $16,516.00 Technician Schedule: Qty Unit Rate Amount 456 hr Field Technician - Molding Concrete Cylinders, Slump, hr Asphalt Technician - observation and sampling 32.00 Air Entrainment and Temperature 32.00 14,592.00 128 set Cylinders (4 per set, $11.00 per cylinder) 44.00 5,632.00 40 ea Cores for Thickness 60.00 2,400.00 Subtotal, Concrete $22,624.00 Note: Concrete scheduling and delivery rate may adversely affect the actual hours on site. Technician Schedule: Qty Unit Rate Amount 36 hr Asphalt Technician - observation and sampling 32.00 1,152.00 6 ea Extraction/Gradation+Rice Specific Gravity (includes disposal fee) 240.00 1,440.00 6 ea Drilled Cores for Density and Thickness Verification, set of 3 90.00 540.00 6 ea Hveem Stability 90.00 540.00 6 ea Lab -molded Density 50.00 300.00 Subtotal, Asphalt $3,972.00 Glade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 VEHICLE USAGE: Qty Unit 174 ea Trips to provide services ADMINISTRATIVE EXPENSE: Rate Amount 24.00 4,176.00 Subtotal, Vehicle Usage $4,176.00 Subtotal $47,288.00 Amount Engineering Report review, Report generation, clerical and mailing expense @ 10% of billing 4,728.80 Subtotal, Administrative Expense $4,728.80 ESTIMATED TOTAL $52,016.80 Glade Road — Roadway Improvements — Tarrant county, Texas Proposal No. 19:3344 -CP April 10, 2006 APPENDIX IV - PROPOSAL ACCEPTANCE ECS - Texas, LLP Proposal No.: 19:3344 -CP Scope of Work: Construction Engineering Services Location: Glade Road — Roadway Improvements Tarrant County, Texas Client Signature: Date: Client Signature: Date: ECS Signature: t' Date: P ®6 ECS Signature: _ Dater Q6 Please complete and return this page to ECS — Texas, LLP to indicate acceptance of this proposal and to initiate work on the above -referenced project. The Client's signature above also indicates that he/she has read or has had the opportunity to read the accompanying Terms and Conditions of Service and agrees to be bound by such Terms and Conditions of Service. BILLING INFORMATION (Please Print or Type) Name of Client: Name of Contact Person: Telephone No. of Contact Person: E-mail address: Party Responsible for Payment: Company Name: Person/Title Department: Billing Address: Telephone Number: Fax Number: E-mail address: Client Project/Account Number Special Conditions for Invoice Submittal and Approval PLEASE NOTE AND RETURN THE FOLLOWING DISTRIBUTION ,•; REPORTSPARTIES TO RECEIVE REPORTS ON THIS PROJECT. YOUR COOPERATION WILL ENSURE THAT ALL PARTIES TIMELY MANNER. ANY CHANGES TO • ' TO THIS Glade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 a �6*19 Ili 1 1rGIOMMOVI.1 Company Name: Contact Name: E-mail Address: Company Name: Contact Name: E-mail Address: Company Name: Contact Name: E-mail Address: Company Name: Contact Name: E-mail Address: Company Name: Contact Name: E-mail Address: Company Name: Contact Name: E-mail Address: Company Name: Contact Name: E-mail Address: NOTE: Number of recipients for e-mailed reports is unlimited. For unanticipated additions, note this sheet and fax to this office Glade Road - Roadway improvements - Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 ECS TEXAS, LLP TERMS AND CONDITIONS OF SERVICE These Terms and Conditions of Service, including any supplements that may be agreed to, along with the accompanying Scope of Services and Professional Fees constitute the entire Agreement au GGREE s orb and nswhich Services are to be provided by ECS Texas, LLP ('ECS) (including its employees, officers, successors and assigns) for Client rCLIENTJ (including its employees, officers, 1.0 INDEPENDENT CONSULT NT HMUS 1.1 Except as may be otherwise noted herein, ECS shall serve as an Independent professional consultant to CLIENT and shall have control over, and responsibility for, the means and methods for providing the Services under this AGREEMENT, including the retention of Subcontractors and Subconsultants. Unless expressly stated in ECS' Scope of Services, ECS shall not serve as CLIENTS agent or representative. 2.0 SCOPE OF SERVICES 2.1 It is understood that the Scope of Services, Professional Fees, and time schedule defined In the Scope of Services are based on information provided by CLIENT and/or CLIENTS contractors and consultants. CLIENT acknowledges that if this Information is not current, is Incomplete or inaccurate, or If conditions are discovered that could not be foreseen by a reasonable person, the Scope of Services may change, even while the Services are in progress. 3.0 STANDARD OF CARE 3.1 ECS shall strive to perform its professional Services in a manner consistent with that level of skill and care ordinarily exercised by competent members of the same profession providing similar Services in the same region, under similar conditions during the same time period. No other representation, expressed or implied, and no warranty or guarantee is included or intended in this AGREEMENT, or in any ECS report, opinion, plan or other Document of Service, in connection with ECS' Services. 32 CLIENT understands and agrees that ECS' professional judgment must rely on the facts learned during performance of the Scope of Services. CLIENT acknowledges that such data collection is limited to the Immediate area that is tested and/or observed. Consequently, CLIENT agrees that it shall not bring a claim, based upon facts subsequently learned, regarding conditions between testing points, in areas not evaluated by ECS, or which were not part of the immediate area(s) explicitly evaluated by ECS. 3.3 ECS' professional Services shall be provided in a manner consistent with sound engineering and professional practices. If a situation arises that causes ECS to believe compliance with CLIENTS wishes could result in ECS violating applicable Laws or Regulations, or will expose ECS to claims or other charges, ECS shall so advise CLIENT. If CLIENT'S actions or inaction result in a violation of applicable Laws or Regulations, ECS shall have the right to terminate its Services in accordance with the TERMINATION provisions of this AGREEMENT. If CLIENT decides to disregard ECS' recommendations with respect to complying with applicable taws or Regulations, ECS shall determine if ECS is required to notify the appropriate public officials. CLIENT agrees that such determinations are ECS' sole right to make. CLIENT also agrees that ECS shall not bear liability for failing to report conditions that are CLIENTS responsibility to report. 4.0 GUENT DISCLOSUREA 4.1 CLIENT shall notify ECS of any known, assumed, or suspected regulated, contaminated, or Hazardous Materials that may exist at the Site prior to ECS mobilizing to the Site. Such Hazardous Materials shall include but not be limited to any substance which poses or may pose a present or potential hazard to human health or the environment whether contained in a product, material, by-product, waste, or sample, and whether it exists in a solid, liquid, semi-solid or gaseous form ('Hazardous Materials'). 5.0 INFORMATION PROVIDED BY OTHERS 4.1 CLIENT waives any claim of liability against ECS regarding any claim for injury or loss allegedly arising from errors, omissions, or inaccuracies in documents and other information in any form provided to ECS, including such information that becomes incorporated into ECS Documents of Service. 8.0 CONCEALED RISKS 8.1 CLIENT acknowledges that special risks are associated with the identification of concealed conditions (i.e., conditions behind a wall, etc., that are hidden from view, are not readily apparent, or cannot be accessed for testing). Conditions that ECS infers to exist between testing locations may differ significantly from the conditions that exist at the testing points. CLIENT recognizes that, because of natural occurrences or human intervention at or near the Site, actual conditions discovered through testing may be subject to change. 82 ECS will make reasonable efforts to anticipate and identify potential concealed conditions for exploration, or testing. However, CLIENT understands that such risks cannot be eliminated and agrees that the Scope of Services is that which CLIENT agrees suits CLIENT'S own risk tolerances. CLIENT may request ECS to evaluate the risks and provide a higher level of exploration to reduce such risks, if desired or appropriate. 7.0 Btt'sHTOF ENTRY 7.1 CLIENT warrants that it possesses the authority to provide right of entry permission for the performance of ECS' Services. CLIENT hereby grants ECS and its subcontractors and/or agents, the right to enter from time to time onto the property owned by CLIENT and/or other(s) in order for ECS to perform the Scope of Services. 8.0 ENVIRONMENTAL RISKS 8.1 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is conducted solely to permit ECS to render a professional opinion about the likelihood of the site having a Recognized Environmental Condition on, in, beneath, or near the Site at the time the Services are conducted. No matter how thorough a Phase I ESA study may be, findings derived from its conduct are highly limited and ECS cannot know or state for an t absolute fact that the Site Is unaffected by one or more Recognized Environmental Conditions. Given the foregoing, CLIENT'S acceptance of this AGREEMENT shall signify that CLIENT understands the limitations associated with Phase i ESAs. 0.0 OWNERSHIP OF DOC MENrc 9.1 With the exception of the copies of the ECS Documents of Service provided to the CLIENT, all documents, technical reports, letters, photos, field data, field notes, laboratory test data, calculations, designs, plans, specifications, reports, or similar documents and estimates of any kind fumishW by ECS ('Documents of Service") maintained in any form deemed appropriate by ECS, are and remain, the property of ECS. 92 Any reconnaissance, data review, observations, testing, surveys or similar Services, analyses and recommendations associated with the Services shall be provided by ECS (including subcontracted Services) for the CLIENTS sole use. CLIENT understands and agrees that any use of the Documents of Service by anyone other than the CLIENT is not permitted. 9.3 CLIENT agrees to not use ECS' Documents of Service for the Project which has changed in scope, or extensions of the Project, from the details contemplated in ECS' Documents of Service. Any reuse without ECS' written consent shall be at CLIENTS sole risk and without liability to ECS or to ECS' subcontractor(s). 9A CLIENT agrees that ECS' Documents of Service may not under any circumstances be altered by any party except ECS. CLIENT warrants that ECS' Documents of Service shall be used only and exactly as submitted by ECS. 9.5 Except for daily field reports and concrete test reports sent electronically by ECS to CLIENT and CLIENTS designees, the following shall apply to all electronic files: Files in electronic media format of text, data, graphics, or other types that are furnished by ECS are furnished only for convenience, not reliance by the receiving party. Any conclusion or Information obtained or derived from such electronic files will be at the user's sole risk. if there is a discrepancy between the electronic files and the hard copies, the hard copies shall govem. 10.0 SAF 10.1 CLIENT agrees that ECS is responsible solely for the basic safety of ECS' employees on the Project Site. These responsibilities shall not be inferred by any party to mean that ECS has responsibility for any portion of site safety for any reason. Unless otherwise expressly agreed to in writing, ECS' Scope of Services excludes responsibility for any aspect of site safety other than for ECS' own employees, and nothing herein shall be construed to relieve CLIENT and/or its other contractors, consultants, or other parties from their responsibility for the safety of their own employees. For active construction sites, CLIENT also agrees that the General Contractor is solely responsible for Project Site safety, and that ECS personnel rely on the safety measures provided by the General Contractor. 11.0 CONSTRUCTION T STINT auD R uanIAT1ON Rt CJF�C 11.1 CLIENT understands that construction testing and observation Services are conducted to reduce, not eliminate, the risk of problems arising during or after construction or remediation, and that provision of such Services does not create a warranty or guarantee of any type. 112 Monitoring and/or testing Services provided by ECS shall not in any way relieve the CLIENTS contractor(s) from their responsibilities and obligations for the quality or completeness of construction, nor for complying with applicable Laws and codes. 11.3 The professional activities of ECS, or the presence of ECS employees and subcontractors, shall not be construed to imply ECS has any responsibility for the means, methods, techniques, sequencing of construction, or procedures of construction selected, for safety precautions and programs incidental to the Contractor's Work. Furthermore, ECS does not and shall not have or accept authority to supervise, direct, control, or stop Contractor's Work. 11A ECS strongly recommends that CLIENT retain ECS to provide its Services on a full time basis to lower the risk of defective or incomplete Work being installed by CLIENTS contractor(s). If CLIENT elects to retain ECS on a part time basis for any aspect of construction monitoring and/or testing, CLIENT accepts the increased risks that a significantly lower level of construction quality may occur and that such defects may not be undetected by ECS' part time observations. Therefore CLIENT waives any and all claims against ECS related to unsatisfactory quality or performance of elements observed or tested by ECS on a part time basis. 12.0 CERTIFIGATIONS 12.1 CLIENT may request, or governing jurisdictions may require, ECS to provide a 'certification' regarding Services provided by ECS. Any 'certification' required of ECS by the CLIENT, or jurisdictions) having authority over some or all aspects of the Project, shall consist of ECS' inferences and professional opinions based on limited observations, tests, and/or analyses performed by ECS at discrete locations and times, ECS' 'certification' shall consist of ECS' professional opinion of a condition's existence, but ECS does not guarantee that such condition exists, nor does it relieve other parties of responsibilities or obligations such parties have. CLIENT agrees not to make resolution of any dispute with ECS or payment of any amount due to ECS in any way contingent upon ECS signing any such 'certification* documents. 13.0 BILLINGS AND PAYMENTS 13.1 Billings will be based on the unit rates, travel costs, and other reimbursable expenses stated In the Professional Fees. Any Estimate of Professional Fees stated in this AGREEMENT shall not be considered as a not -to -exceed or lump sum amount unless otherwise explicitly stated in this AGREEMENT. 132 Should ECS identify a Changed Condition, ECS shall notify the CLIENT of the Changed Condition(s) that in ECS' professional judgment require an amendment of the Professional Fees, time schedule, arnUor Scope of Services. ECS and CLIENT shall promptly and in good faith negotiate an amendment to this AGREEMENT. 13.3 CLIENT recognizes that fime is of the essence with respect of payment of ECS' invoices, and that timely payment is a material part of the consideration of this AGREEMENT. Glade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 Payment shall be in U.S. funds drawn upon U.S. banks and in accordance with the rates and chargee set forth in the Professional Fees, Invoices shall be due and payable upon receipt. 13A If CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with written notice stating in detail the facts of the dispute within twenty-one (21) calendar days of the invoke date and agrees to pay the undisputed amount of such invoice promptly, 13.5 ECS reserves the right to charge CLIENT an additional charge of one-andone-hal (1.5) percent (or the maximum percentage allowed by Law, whichever is lower) of the invoiced amount per month for any payment received by ECS more than thirty (30) calendar days from the date of the Invoice, excepting any portion of the invoiced amount in dispute and resolved in favor of CLIENT. Payment will first be applied to accrued interest and then to the unpaid principal amount. Payment of invoices shall not be subject to unilateral discounting or set -offs by CLIENT. 13.6 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENTS ability to obtain financing, zoning, approval of governmental or regulatory agencies, permits, final adjudication of a lawsuit in which ECS is not involved, upon CLIENTS successful completion of the Project, settlement of a real estate transaction, receipt of payment from CLIENT'S client, or any other event. Retainage shall not be withheld from any payment, nor shall any deduction be made from any invoice on account of penalty, liquidated damages, or other sums incurred by CLIENT. It is agreed that all cats and legal fees including attorney's fees, and expenses incurred by ECS in enforcing any provision of the AGREEMENT, in perfecting or obtaining a lien, recovery under a bond, collecting any delinquent amounts due, or executing judgments, shall be reimbursed by CLIENT, 13.7 Payment of any invoice by the CLIENT shall betaken to mean that the CLIENT agrees to the provisions of the AGREEMENT and is satisfied with ECS' Services and is not aware of any defects in those Services, unless CLIENT has provided notice to ECS in accordance with the DEFECTS IN SERVICE provisions of this AGREEMENT. 14.0 DEFECTS IN SERVICE 14.1 CLIENT and CLIENTS personnel and contractors shall promptly inform -ECS of any actual or suspected defects in ECS' Services, to help ECS take those prompt, effective measures that in ECS' opinion will help reduce or eliminate the consequences of any such defect. Corrections of defects attributable to ECS' Services shall be provided at no cat to CLIENT, except in the case that the deficiency is directly attributable to CLIENT - furnished information, CLIENT shall compensate ECS for the costs of correcting such defects. 142 Modifications to reports, documents and plans required as a result of jurisdictional reviews or CLIENT requests shall not be considered to be defects in Services. CLIENT shall compensate ECS for Additional Services required as a result of jurisdictional review requirements. 15.0 INSURANCE 15.1 ECS represents that it and its subcontractors and subconsultants are protected by Workers Compensation insurance, and that ECS is covered by general liability, automobile and professional liability insurance policies which it deems reasonable and adequate. 152 ECS shall furnish certificates of insurance upon request. The CLIENT is responsible for requesting specific inclusions or limits of coverage, the cost of such inclusions or coverage increases, B available, will be at the expense of the CLIENT. 18.0 CONSEQUENTIAL DAMAGES 18.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any consequential damages incurred by either due to the fault of the other, regardless of the nature of the fault, or wherever committed by the CLIENT or ECS, their employees consultants, agents, contractors or subcontractors, or whether such liability arisen' breach of contract or warranty, tort (including negligence), Statute, or any other caul; action. Consequential damages include, but are not limited to, loss of use and loss ISM• 18.2 ECS shall not be liable to CLIENT, or any entity engaged directly or indirectly by CLIENT, for any liquidated damages due to any fault, or failure to act, in part or in total by ECS, its employees, agents, or subcontractors. 19.0 SOURCES OF RECOVERY ims for damages related to the Services provided under this AGREEMENT sh made again contracting with the CLIENT for the no other person or entity. CLIENT contracting y affiliated entity including parent, peer, or subsidiary ant' us o employee of ECS, unless such cl ' on acts unrelated to the provision of 192 CLIENT agrees that 4 will not seek Damages from any individual associated with ECS as an officer, principal, partner, employee, or owner, from any and all claims or liability for Injury or loss that would require such individual to relinquish personal assets to satisfy such claim. 20.0 THIRD PARTY CLAIMS EXCLUSION 20,1 This AGREEMENT shall not create any rights or benefits to parties other than CLIENT and ECS. No third -party shall have the right to rely on ECS' opinions rendered in connection with ECS' Services without both CLIENTS and ECS' written consent and the third -party's agreement to be bound to the same terms and conditions contained in this AGREEMENT as CLIENT, and third -party's agreement that ECS' Scope of Services performed is adequate. 21.1 All claims, disputes or controversies ('Disputes") arising out of, or in relation to the interpretation, application or enforcement of this AGREEMENT shall be decided as follows: N72 �! adS•• a :s. e 21.1.1 CLIENT and ECS agree to attend a dispute resolution meeting within —days .of identification of a Dispute by either party. CLIENT and ECS agree to negotiate in good faith to resolve the Dispute. 21.12 Should negotiation fail to resolve the dispute, CLIENT and ECS agree to mediate their dispute via a mediator selected by either party, and acceptable to both parties. 21.1.3 Should mediation fail to result in resolution of the Dispute, CLIENT and ECS agree that litigation may be brought by either party. 212 21.3 16.0 LIMITAMN OF LIABILITY 16.1 CLIENT AGREES TO ALLOCATE CERTAIN OF THE RISKS ASSOCIATED WITH THE PROJECT BY LIMn'ING ECS' TOTAL LIABILITY To CLIENT, SUBJECT TO AVAILABLE INSURANCE PROCEEDS, 21A ARISING FROM ECS' PROFESSIONAL ACTS, ERRORS, OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES) UNDER THIS AGREEMENT TO THE FULLEST 22.0 EXTENT PERMITTED BY LAW, TO7 22.1 162 CLIENT agrees that ECS shall not be responsible for bodily injury and property damage or losses arising directly or indirectly, in whole or in part, from acts or omissions by the CLIENT, its employees, agents, staff, consultants or subcontractors or by any other person or combination of persons to the extent such injury, damage, or loss is caused by acts or omissions of CLIENT, Its employees, agents, staff, consultants or subcontractors. 17.0 INDEMNIFICATION 17.1 ECS agrees, subject to the limitation of liability oroyisions of this AGREEMENT, to hold harmless and indemnify CLIENT from and against damages arising from ECS' negligent performance of its Services to the extent that such injury is found to be caused by ECS' negligent acts, errors or omissions, specifically excluding any damages caused by any third party or by the CLIENT. To the fullest extent permitted by applicable Law. CLIENT agrees to indemnify,, an S harmless from and against any and all liability, claims, deresdemands, It penaltia , nd expenditures (including reasonable a pr s fees and cats of gation defense and/or nt) j'Damages' c n whole or in part by the negligent acts, errors, or omissions and CLIENTS employees, agents, staff, contractors, subcontractors, ss nts, s, provided such Damages are attributable to: (a) the bod , personal injury, sickne, a and/or death of any person; (b) inju of value to tangible personal property; or7v-b ch of this AGREE except to the extent such Damage is caused by the sole negiige misconduct of ECS. 17.3 It is specifically understood and agreed that in no case shall ECS be required to pay an amount of Damages disproportional to ECS' culpability, or any share of any amount levied to recognize more than actual economic damages, subject to any limitations of liabiliri CLIENT IS A HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINIUM CON OWNER'S ASSOCUT E: OR SIMILAR S.O.RER, ECS RECOMMENDS TMA OUNSEL BE RETAINED�BYY ORE ENTERING INTO THIS AGREEMENT TO EXPIAN C iRiI D THE LIMITATIONS, AND RESTRICTIONS IMPOSED BY TITS AGRE_zj{iN . JEN THAT FAILURE OF CLIENT To RETAIN SUCH COU BE A KNOWING WAIVER OF LE SEL AND SHALL NOT BE D ON GROUNDS OF AVOIDING. ANY PROVISION OF THis AG RE is a residential builder or residential developer, CLIENT s defend an o a Inst any and all n s due to injury or 26.0 loss initiated by one or more horn or their homeowners' association, 28 1 cooperative entity against CLIENT whit r brought Ispute. Should third -party dispute resolution be required, through mediation or litigation, the non - prevailing party shall reimburse the prevailing party for the prevailing partys documented legal cats, in addition to whatever other judgments or settlement sums may be dun' Such legal cats include, but are not be limited to, reasonable attomey's fees, court cos forensic consultants and expert witness fees, and other documented expenses. Where legal action is brought by either party to resolve a dispute, the claim shall be brought and tried in the judicial jurisdiction of the county in which ECS' office contracting with the CLIENT is located. CLIENT waives the right to remove any litigation action to any other jurisdiction, unless mutually agreed to by both parties, This AGREEMENT including all matters related to performance and remediation shall be interpreted according to the substantive Laws of the state of 4grginia (but not including its choice of law rules). .may T y as S N ![SdiRIS lS YSiJURINGS A BRCH i/7 A party that believes the other has materially breached this AGREEMENT shall issue a written termination nodes to the other, identifying the cause for termination within five (5) business days of identifying such cause. Both parties shall then bargain promptly and in good faith to cure such cause. If an acceptable cure can be achieved within fourteen (14) calendar days from the date of the termination notice, the parties shall commit their understandings to writing and termination shall not occur. 222 Either party may waive any right provided by this AGREEMENT in curing an actual or alleged breach; however, such waiver shall not affect future application of such provision or any other provision. 23.0 TERMINATION 23.1 CLIENT or ECS may terminate this AGREEMENT for breach of this AGREEMENT, or for any other reasons which may arise. In the event of termination, the party effecting termination shall so notify the other party in writing, and termination shall become effective fourteen (14) calendar days after receipt of the termination notice. 232 Irrespective of which party shall effect termination, or the cause therefore, ECS shall promptly render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for Services rendered and costs incurred, in accordance with ECS' prevailing Fee Schedule and expense reimbursement policy. Services shall include those rendered up to the time of termination, as well as those associated with termination Itself, including without limitation, demobilizing, modifying schedules, and reassigning personnel. 24.0 11ME BAR TO LEGAL ACTION 24.1 Unless prohibited by Law, and notwithstanding any Statute that may provide additional protection, CLIENT and ECS agree that claims by either party arising out of this AGREEMENT or the Services provided hereunder shall not be initiated more than two (2) years from the time the party knew, or should have known, of the condition giving rise to its claim, and shall under no circumstances be initiated more than three (3) years from the date of substantial completion of ECS' Services. 25.0 25.1 ASSIGNMENT Except for Services normally or customarily subcontracted by ECS in the performance o its Services including, but not limited to surveyors, specialized consultants, drilling and excavating subcontractors, and testing laboratories, neither the CLIENT nor ECS may delegate, assign, sublet or transfer its duties, responsibilities or interests in this AGREEMENT without the written consent of the other party. SEVERABILITY Any provision of this AGREEMENT later held to violate a Law. Statute, or Regulation, shall be deemed void, and all remaining provisions shall continue in full force and effect. tslade Road — Roadway Improvements — Tarrant County, Texas Proposal No. 19:3344 -CP April 10, 2006 CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute that expresses the intent of, or at least addresses, the issues covered by the original provision. 27.0 TITLES 27.1 The titles used in this AGREEMENT are for general reference only and are not part of the AGREEMENT. SUBMAL 28.1 All obligations arising prior to the termination of this AGREEMENT and all provisions of this AGREEMENT allocating responsibility or liability between the CLIENT and ECS shall survive the substantial completion of Services and the termination of this AGREEMENT. 20.0 ENTIRE AGREEMENT 29.1 This AGREEMENT including the Scope of Services and Professional Fees and all exhibits, appendixes, and other documents appended to it, constitute the entire AGREEMENT between CLIENT and ECS. CLIENT acknowledges that all prior understandings and negotiations are superseded by this AGREEMENT. CLIENT acknowledges acceptance of these terms by submitting a CLIENT Work Authorization to ECS. 29.2 CLIENT and ECS agree that subsequent modifications to this AGREEMENT shall not be binding unless made in writing and signed by authorized representatives of both parties. 29.3 Ail preprinted Terms and Conditions on CLIENTS purchase order or Work Authorization, or other service acknowledgement forms, are inapplicable and superseded by this AGREEMENT. 29A If CLIENT fails to provide ECS with a signed copy of this AGREEMENT or a Work Authorization, by the act of authorizing and accepting the services of ECS. CLIENT agrees to be fully bound by the terms of this AGREEMENT as if signed by CLIENT.