ST9905-CN061204CONSTRUCTION ENGINEERING SERVICES
BETHEL ROAD
COPPELL, TEXAS
PROPOSAL NO. 19:3689-CP (REV. 1)
FOR
CITY OF COPPELL
DECEMBER 4, 2006
Geotechnical ~ Construction Materials Environmental
December 4, 2006
City of Coppell
PO Box 9478
Coopell, Texas 75019
Attn: Mr. Kenneth M. Griffin, P.E.
ECS Proposal No. 19:3689-CP (Rev. 1}
Reference: Revised Estimated Cost Proposal for Construction Engineering Services
Bethel Road
Coppell, Texas
Dear Mr. Griffin:
As requested, ECS-Texas, LLP is pleased to present the following unit price and revised
estimated cost proposal for providing materials observation and testing services during
construction.
PROJECT OVERVIEW AND SCOPE OF SERVICE
We understand that the project consists of paving improvements for Bethel Road from Station
0+00 to 70+00.
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.
UNIT RATE SCHEDULE
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.
4950 Keller Springs Road, Suite 480, Addison, TX 75001
PH (972) 392-3222 • FAX (972) 392-0102
www ecc-tPxac cnm
Bethel Road
Proposal No. 19:3689-CP (Rev 1)
December 4, 2006
The services will be rendered portal-to-portal from our office in Addison, Texas. There will be
a 3-hour minimum charge for field related services. Our unit rates are based on an 8-hour
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.
Scheduling should occur prior to 3:00 p.m. on the day before services are required. Same day
scheduling for technician services will be charged at a multiplier of 1.5 times the hourly unit
rate.
TOTAL REVISED ESTIMATED COST
This total revised 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.
REPORTING, BILLING. AND CONTRACT CONDITIONS
You will be issued daily field reports and laboratory test reports as part of our service. Because
our reporting systems are fully computerized, we a-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 10~' of each month and represent costs incurred during the previous month. These invoices
will also display a monthly cumulative summarv of project costs to date. This monthly
summary will serve as a means of monitoring project 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.
Bethel Road
Proposal No. 19:3689-CP (Rev 1)
December 4, 2006
SUMMARY AND ACCEPTANCE
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 -Revised Estimated Costs
Appendix IV -Proposal Acceptance
Appendix V -Terms and Conditions of Service
Bethel Road
Proposal No. 19:3689-CP (Rev 1)
December 4, 2006
APPENDIX I -SCOPE OF SERVICES
A. Earthworlc/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, D-4318
b. Proctor Moistare 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 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:
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.
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
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.
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.
Provide documentation of events in the field and notify the appropriate persons upon recognition of
deficiencies.
Bethel Road
Proposal No. 19:3689-CP (Rev 1)
December 4, 2006
APPENDIX II - PROJECT UNIT RATES
FIELD SERVICES UNIT RATE
1800 Field Technician $ 34.00/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 ft2) $ 0.03/sq.ft.
ENGINEERING/ADMINISTRATIVE SERVICES
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 15% of Invoice
LABORATORY SERVICES
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 TestsBond Strength $ 25.00/each
3350 Vehicle Usage $ 18.00/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 3-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. Overtim e 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 3:00 p.m. on the day before services are required.
Bethel Road
Proposal No. 19:3689-CP (Rev 1)
December 4, 2006
APPENDIX III -REVISED ESTIMATED COSTS
EARTHWORK:
Technician Sched ule:
Qty Unit Rate Amount
380 hr Field Technician 34.00 12,920.00
9 ea Standard Proctor Determinations 125.00 1,125.00
9 ea Atterberg Limits Tests 45.00 405.00
95 day Nuclear Gauge Fee 30.00 2,850.00
4 ea PI Lime Series 225.00 900.00
Subtotal, Earthwork $18,200.00
CONCRETE SAMPLING AND TESTING:
Technician Schedule:
~ Unit Rate Amount
375 hr Field Technician -Molding Concrete Cylinders, Slump,
Air Entrainment and Temperature 34.00 12,750.00
100 set Cylinders (4 per set, $11.00 per cylinder) 44.00 4,400.00
10 ea Cores for Thickness 60.00 600.00
Subtotal, Concrete $17,750.00
Note: Concrete scheduling and delivery rate may adversely affect the actual hours on site.
VEHICLE USAGE:
Qt}, Unit Rate Amount
160 ea Trips to provide services 18.00 2,880.00
Subtotal, Vehicle Usage $2,880.00
Subtotal $38,830.00
ADMINISTRATIVE EXPENSE:
Amount
Engineering Report review, Report generation, clerical
and mailing expense @ 15% of billing 5,824.50
Subtotal, Administrative Expense $5,824.50
REVISED ESTIMATED TOTAL $44,654.50
Bethel Road
Proposal No. 19:3689-CP (Rev 1)
December 4, 2006
APPENDIX IV -PROPOSAL ACCEPTANCE
ECS -Texas, LLP
Proposal No.:
Scope of Work:
Location:
Client Signature:
Date: ~~~
Please complete arm 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
City of Coppell
Ken Griffin, P. E.,
972-304-3686
kgriffin®ci.coppell.tx.us
City of Coppell
Ken Griffin, P. E.
Engineering
255 Parkway Blvd.
Coppell, TX 75019
PLEASE NOTE AND RETURN THE FOLLOWING DISTRIBUTION LIST OF PARTIES
TO RECEIVE REPORTS ON THIS PROJECT. YOUR COOPERATION WILL ENSURE
THAT ALL PARTIES WILL RECEIVE ALL REPORTS IN A TIMELY MANNER ANY
CHANGES TO DISTRIBUTION MAY BE E-MAILED TO THIS OFFICE.
19:3689-CP (Rev. 1)
Construction Engineering Services
Bethel Road, Station 0+00 to 70+00
Coppell, Texas
Bethel Road
Proposal No. 19:3689-CP (Rev 1)
December 4, 2006
REPORT DISTRIBUTION LIST
Company Name: city of Coppell
COntactName: Ken Griffin, P.E.
E-mall AddreSS: kgriffin@ci.coppell.tx.us
Company Name: City of Coppell
COntactName: Rick O'Dell, Project Inspector
E-mall AddreSS: engineer@ci . coppell . tx . us
Company Name: Tiseo Paving Company P.O. Box 270040 Dallas, TX 75227
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
APPENDIX V -TERMS AND CONDITIONS OF SERVICE
ECS TEXAS, LLP
TERMS AND CONDITIONS OF SERVICE
These Terms and Condtions of Service, including any supplements that may be agreed to,
along with the accompanykrg Scope of Services and Professonal Fees constitute the entire
Agreement [°AGREEMENT"] under which Services are to be provided by ECS Texas, LLP
["ECS'] (including its employees, aRcers, successors and assigns) for Client ["CLIENT']
(including its empbyees, officers, successors and assigns).
1.0 INDEPENDENT CONSULTANT STATUS
1.1 Except as may be otherwise noted herein, ECS shall serve as an independent
professional consuRant to CLIENT and shall have control over, and responsibility
for, the means and methods far providing the Services under this AGREEMENT,
inducting the retemion of Subcontredars and Subconsuflants. Unless expressly
stated in ECS' Scope of Services, ECS shall not serve as CLIENT'S 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 caMrectors and consuRants. CLIENT acknowledges that ff this
informatbn is not current, is incomplete or inaccurate, or 'd 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 wRh that
level of skill and care ordinarity exeroised by competent members of the same
profession providing similar Services in the same region, under similar condidions
during the same time period. No other representation, expressed or implied, and no
warranty or guarantee is inGuded or intended in this AGREEMENT, or in any ECS
report, opinion, plan or other Document of Service, in connection with ECS'
Services.
3.2 CLIENT understands and agrees that ECS' professional judgment must rely on the
fads teamed during performance of the Scope of Services. CLIENT acknowledges
that such data cdlectbn is limbed to the immediate area that is sampled, tested
and/or observed. Consequently, CLIENT agrees that it shall nd bring a claim,
based upon fads subsequently teamed, regarding condtions between
sampling/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 CLIENT'S 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.
3.4 If CLIENT decides to disregard ECS' recommendations with rasped to complying
with applicable Laws or Regulations, ECS shall determine H 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 condidions that are CLIENT'S responsibility to report.
4.0 CLIENT DISCLOSURES
4.1 CLIENT shall famish and/or shall direct CLIENT'S consultant(s) or agent(s) to
famish ECS infomtation identifying the type and location of utilty lines and other
man-made objects known, suspected, or assumed beneath the Site's surface, where
the Scope of Services requires ECS to penetrate the Sile surface.
4.2 CLIENT shall notify ECS of any known, assumed, or suspected regulated,
contaminated, or Hazardous Materials that may exist at the Sde prior to ECS
mobilizing to the Sfle. Such Hazardous Materials shall include but not be limited to
any sub~ance whldt poses or may pose a present or potential hazard to human
heath 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'].
4.3 If any Hazardous Materials are discovered, or are reasonably suspected by ECS
aRer its Services are initiated, a Changed Condition shall exist.
5.0 INFORMATION PROVIDED BY OTHERS
5.1 CLIENT waives any claim of liability against ECS regarding any cairn for injury or
loss allegedly arising from erore, omissions, or inaccuracies in documents and
other infomtation in any forth 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 condRbns [i.e., subsurface conditions, conditions behind a welt, etc., that
are hidden from view, are not readity apparent, or cannot be accessed for
samplingftesting].
8.2 Condtions that ECS infers to exist between samplingResting points may differ
signiricantly from the conditions that exist at the samplingttesting points. Since
some conditions can change substantially over time, the CLIENT recognizes that,
because of natural occurrences or human intervention at or near the Ste, actual
conditions discovered through samplingResting may be subject to rapid or gradual
change.
8.3 ECS will make reasonable efforts to anticipate and identify potential wncealed
condtions for expbretbn, sampling or testing. However, CLIENT understands that
such risks cannot be eliminated and agrees that the Scope of Services is that which
CLIENT agrees suns CLIENT'S own risk tolerances. CLIENT may request ECS to
evaluate the risks and provide a higher level of exploratbn to reduce such risks, if
desired or appropriate.
7.0 RIGHT OF ENTRYIDAMAGE RESULTING FROM SERVICES
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.
7.2 Except where ECS' Scope of Services explictly includes obtaining permits, licenses,
and/or utility Gearences for the performance of ECS' Services, CLIENT warrants
that it possesses all necessary permits, licenses and/or utility clearances for the
Services to be provided by ECS.
7.3 ECS will take reasonable precautions to limit damage to the Site and Improvements
during the performance of ECS' Services. CLIENT understands that use of
exploration, sampling, or testing equipmem may cause some damage, the
correction and restoretbn of which is not part of this AGREEMENT, unless explicity
stated in ECS' Scope of Services, and reflected in the Professional Fees.
7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss
allegedly arising from procedures associated wdh exporetion, sampling or testing
activities, or discovery of Hazardous Materials, or suspected Hazardous Materials,
or ECS' findings, conclusions, opinions, recommendations, plans, and/or
spec cations related to discovery of contamination.
8.0 UNDERGROUND UTILITIES
8.1 In addition to CLIENT-furnished information regarding underground utilities, ECS
shall take reasonable and locally customary precautions, possibty including
contacting local public and/or private utility locating services, and/or conducting
research of publicly available information, to identify underground utilities, as
deemed appropriate in ECS' professional opinion. The extent of such precautions
shall be at ECS' sole discretion.
8.2 CLIENT recognizes that despite due care, ECS may be unable to identify the
locations of all subsurface utility lines and man-made features, and that information
obtained by ECS and/or ECS' subcontractor(s) or provided to ECS from any entity
may contain errors or be incomplete.
8.3 CLIENT agrees that ECS shall not be liable for damage or injury, consequential
economic damages, and/or penahies resulting from damage to subterranean
structures (pipes, tanks, cables, or dher utilities, etc.) which are not called to ECS'
attention in writing and correctly shown on the diagram(s) famished by CLIENT or
CLIENT'S consuflants, or for underground features not marked, or improperty
located by governmental or quasi-governmental locators, utility owners, or private
utility locating services.
8.0 AMPLE
9.1 Soil, rock, water, building materials and/or other samples and sampling by-products
obtained from the Site are the property of CLIENT. ECS will store samples not
consumed in laboratory testing for up to sixty (60) calendar days after the issuance
of any document containing data obtained from those samples, unless other
arangements are mutualty agreed upon in writing. Samples consumed by
laboratory testing procedures will not be stored as outlined above.
9.2 Unless CLIENT directs otherwise, CLIENT authorizes ECS to dispose d CLIENT'S
non-hazardous samples and sampling or testing process byproducts in accordance
with applicable Laws.
10.0 ENVIRONMENTAL RISKS
10.1 All substances an, in, or under CLIENT'S Site, ar obtained from CLIENT'S Site as
samples or as byproducts of the sampling process, are and will remain CLIENT'S
property.
10.2 When Hazardous Materials are known, assumed, or suspected to exist at the Site,
ECS shall take appropriate precautions deemed prudent in ECS' sole and
professional opinion to comply with applicable Laws and Regulations, and to reduce
the risks to ECS' employees, public health, safety, and welfare, and the
environment. CLIENT agrees to compensate ECS for such precautions.
10.3 When Hazardous Materials are known, assumed, or suspected to exist at the Site,
ECS will handle such materials as Hazardous Materials. ECS or ECS'
subcontractors will containerize and label such Materials in accordance with
applicable Law, and will leave the containers on Ste. CLIENT is responsible for the
retrieval and lawful removal, transport and disposal of such contaminated samples,
and sampling process byproducts.
10.4 Unless explicity stated in ECS' Scope of Services, ECS shall not subcontract nor
orange for the transport, disposal, or treatment of Hazardous Materials. At
CLIENT'S request, ECS may assist CLIENT in identifying appropriate alternatives
for transport, oft-site treatment, storage, or disposal of such substances, but
CLIENT, not ECS, shall make final selection of methods and firths to provide such
services. CLIENT shall sign all man'rfests for the disposal of substances affected by
Hazardous Materials contaminants and shall otherwise exercise prudence in
aranging for lawful disposal.
10.5 In those instances where ECS is expressy retained by CLIENT to assist CLIENT in
the disposal of Hazardous Materials, samples, or wastes, ECS shall do so only as
CLIENT'S agent (notwithstanding any other provision of this AGREEMENT to the
contrary) so that ECS shall not assume the role of, nor be considered a generator,
storer, transporter, or disposer of Hazardous Materials.
Ver. 03-03-OB
10.6 Subsurface sampling may resuR in unavoidable cross-contamination of certain
subsurface areas, as when a probe or excevation/bortng device moves through a
contaminated zone and links it to an aquifer, underground stream, or other hydrous
body not previousty contaminated, or connects an uncontaminated zone wkh a
contaminated zone. Because sampling is an essential element of ECS' Services
indicated herein, CLIENT agrees this risk cannot be eliminated. CLIENT will not
hold ECS liable for such aosscontamination 'rf ECS provides its Services in
accordance with the applicable Standard of Care.
10.7 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is
conducted soley 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 SNe at the time the Services are conducted. No matter how thorough a Phase I
ESA study may be, findings derived from its conduct are highty limited and ECS
cannot know or state for an absolute fact that the Site is unaffected by one or more
Recognized Environmental Conddions. Given the foregcing, CLIENT'S acceptance
of this AGREEMENT shall signify that CLIENT understands the limitations
associated with Phase 1 ESAs.
11.0 OWNERSNIP OF DOCUMENTS
11.1 With the exception of the copies of the ECS Documents of Service provided to the
CLIENT, all documents, technical reports, letters, photos, boring bgs, field data,
field notes, laboratory test data, cak:ulations, designs, plans, specifications, reports,
or similar documents and estimates of any kind famished by ECS ["Documents of
Service'] maintained in any forth deemed appropriate by ECS, are and remain, the
property of ECS.
11.2 Any expbretion, reconnaissance, data review, observations, testing, surveys or
similar Services, anatyses and recommendations associated with the Services shall
be provided by ECS (including subcontracted Services) for the CLIENT'S sole use.
CLIENT understands and agrees that any use of the Documents of Service by
anyone other than the CLIENT is not permitted.
11.3 CLIENT agrees to hat use ECS' Documents of Service for any other projects, or 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 wthout liability to ECS or to ECS'
subcenfractor(s).
11.4 CLIENT agrees that ECS' Documents of Service may not under any circumstances
be aRered by any party except ECS. CLIENT warrants that ECS' Documents of
Service shall be used onty and exactly as submitted by ECS.
11.5 Except for daily field reports and concrete test reports sent eledronicelty by ECS to
CLIENT and CLIENT'S designees, the following shall apply to all electronic files:
Files in electronic media format of text, data, graphics, or other types that are
tumished by ECS are tumished 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 govern.
12.0 AFE
12.1 CLIENT agrees that ECS is responsible solely for the basic safety of ECS'
employees on the Project SRe. 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 consuued to relieve CLIENT and/or its other
contractors, consultants, or other parties from their responsibility for the safety of
their own employees. For alive censtruction sites, CLIENT also agrees that the
General Contractor is soley responsible for Project SHe safety, and that ECS
personnel rety on the safety measures provided by the General ConVador.
12.2 In the event ECS expressy assumes health and safety responsibilties for toxic or
other concerns specified, the acceptance of such responsibility does not and shall
not be deemed an acceptance of responsibility for any other heaRh and safety
requirements, such as those relating to excavating, trenching, shoring, drilling,
backfilling, blasting, or other construction activities.
13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES
13.1 CLIENT understands that construction testing and observation Services are
conducted to reduce, not eliminate, the risk of problems arising during or after
construction or remedlation, and that provision of such Services does not create a
warranty or guarantee of any type.
13.2 Monitoring and/or testing Services provided by ECS shall not in any way relieve the
CLIENT'S contractor(s) from their responsibilties and obligations for the quality or
completeness of consWction, nor for complying with applicable Laws and codes.
13.3 The professional activities of ECS, or the presence of ECS employees and
subcontractors, shell not be construed to imply ECS has any responsibility for the
means, methods, techniques, sequencing of construction, or procedures of
construction aeleded, for safety precautions and programs incidental to the
Contractor's Wbrk. Furthermore, ECS does not and shall not have ar accept
authority to supervise, direct, control, or stop Contractor's Work.
13.4 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
CLIENT'S ceMrador(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 slgnificentty 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.
14.0 CERTIFICATIONS
14.1 CLIENT may request, or governing jurisdictions may require, ECS to provide a
"certffication' regarcling Services provided by ECS. Any "certification° required of
ECS by the CLIENT, or jurisdiction(s) having authority over some or all aspects of
the Project, shall consist of ECS' inferences and professional opinions based on
limited sampling, observations, tests, and/or analyses pertortned 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 "certificetion°
documents.
15.0 BILLINGS AND PAYMENTS
15.1 Billings will be based on the unR 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.
15.2 Should ECS identify a Changed Condition, ECS shall notify the CLIENT of the
Changed Cond'dion(s) that in ECS' professional judgment require an amendment of
the Professional Fees, time schedule, and/or Scope of Services. ECS and CLIENT
shall promptly and in good faith negotiate an amendment to this AGREEMENT.
15.3 CLIENT recognizes that time is of the essence with rasped of payment of ECS'
invoices, and that timely payment is a material part of the consideration of this
AGREEMENT. Payment shall be in U.S. funds dravm upon U.S. banks and in
accordance with the rates and charges set forth in the Professional Fees. Invoices
shall be due and payable upon receipt.
15.41f CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with written
notice stating in detail the fads of the dispute within twenty-one (21) calendar days
of the invoice date and agrees to pay the undisputed amount of such invoice
prompty.
15.5 ECS reserves the right to charge CLIENT an additional charge of one-and-one-haK
(1.5) percent (ar 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.
15.6 CLIENT agrees that its obligation to pay for the Services is not contingent upon
CLIENT'S ability to obtain financing, zoning, approval of governmental or regulatory
agencies, permits, final adjudication of a lawsuit in which ECS is not involved, upon
CLIENT'S successful completion of the Project, settlement of a real estate
fransaction, 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 costs and legal Tees including actual 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.
15.7 Payment of any invoice by the CLIENT shall be taken 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.
18.0 DEFECTS IN SERVICE
18.1 CLIENT and CLIENTS personnel and centrectore 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 cost to CLIENT, except in the case that the
deficiency is directly attributable to CLIENT-tumished information, CLIENT shall
compensate ECS for the costs of correcting such defects.
16.2 Modifications to reports, documents and plans required as a resuR of jurisdictional
reviews ar 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.
17.0 INSURANCE
17.1 ECS represents that @ and fts subcontractors and subconsuftants 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.
17.2 ECS shall famish certificates of insurance upon request. The CLIENT is responsible
for requesting specfic inclusions or IimNs of coverage that are not present in ECS
insurance, the cost of such inclusions or coverage increases, if available, will be at
the expense of the CLIENT.
18.0 LIMITATION OF LIABILITY
18.1 CLIENT AGREE8 TO ALLOCATE CERTAW OF THE RISKS ASSOCIATED WITH THE PROJECT BY
LIMITING ECS' TOTAL WIBILITY To CLIENT, SUBJECT TO AVAILABLE INSURANCE PROCEEDS,
ARISING FROM ECS' PROFESSIONAL ACTS, ERRORS, OR OMISSIONS AND FOR ANY AND ALL
CAUSES INCWDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF
WARRANTY, INJURIES, DAMAGES° CLAIMS, LOSSES, EXPENSE8~ OR CLAIM EXPENSES
(INCLUDING REASONABLE ATTORNEYS FEES] UNDER THIS AGREEMENT TO THE FULLESr
ExTENT PERMITTED BY LAW, As FoLLOW3. For projects where ECS' Fee Estimate or
proposed fees are:
18.1.1 $10,000 or less, ECS' total aggregate liability to CLIENT shall not exceed
$5,000, or the total fee for the services rendered, whichever is greater.
18.1.2 In excess of $10,000, ECS' total aggregate liability to CLIENT shall not exceed
$50,000, or the total fee for the services rendered, whichever is greater.
18.2 CLIENT agrees that ECS shall not be responsible for bodily injury and property
damage or losses arising diredty or indirectty, in whole or in part, from ads ar
omissions by the CLIENT, Rs employees, agents, staff, consultants or
subcontractors or by any other person or combination of persons to the extent such
Ver. 03-03-08
injury, damage, or bss is caused by acts or omissions of CLIENT, 8s employees,
agents, staff, consultants or subcontractors.
18.0 INDEMNIFICATION
19.1 ECS agrees, subject to the limitation of liability Drovisions 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.
19.2 To the fullest extent permitted by applicable Law, CLIENT agrees to indemnify,
defend, and hold ECS harmless from and against any and all liability, claims,
damages, demands, fines, penalties, costs and expendltures (including reasonable
attorneys' fees and costs of Iltigation defense and/or settlement) ["Damages']
caused in whole or in part by the negligent acts, errors, or omissons of the CLIENT
and CLIENTS employees, agents, staff, contractors, subcontractors, consultants,
and clients, provided such Damages are attributable to: (a) the bodity injury,
personal injury, sickness, disease and/or death of any person; (b) injury to or loss of
value to tangible personal property; or (c) a breach of this AGREEMENT, except to
the extent such Damage is caused by the sole negligence or willful misconduct of
ECS.
19.3 It is spec~cally 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 env
limlrnrlons of liability and INDEMNIFICATION Drovisions contained in this
AGREEMENT.
19.41E CLIENT M A HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINWM OWNER,
CONDOMINRIM OWNER'8 A88000lTK)N, OR SIMILAR RESIDENTIAL OWNER, ECS RECOMMENDS
THAT LEGAL COUNSEL BE RETANIED BY CLIENT BEFORE ENTERING INTO THIS
AGREEMENT ro ExPLAIN CLIENT'S RKTH73, AND THE LIMITAnONS, AND RESTRICTIONS
IMPOSED BY THIS AGREEMENT. CLIENT AGREE9 THAT FAILURE OF CLIENT TO RETAIN
SUCH COUNSEL SHALL BE A KNOWING WANER OF LEGAL COUNSEL AND SHALL NOT BE
ALLOWED ON OROUNOS OF AYgDINO ANY PROYIBK)N OF 7}118 AGREEMENT.
19.51f CLIENT is a residential builder or resklential developer, CLIENT shall indemnify,
defend and hokt harmless ECS against any and all claims or demands due to injury
or loss initiated by one or more homeowners, unit-owners, or their homeovmere'
association, cooperative board, or similar entity against CLIENT which results in
ECS being brought into the dispute.
20.0 CONSEQUENTIAL DAMAGES
20.1 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 arises in lxeach of contract or warranty, tort (including negligence), Statute,
or any other cause of action. Consequential damages include, but are not limited to,
loss of use and bss of profit.
20.2 ECS shall not be liable to CLIENT, or any entity engaged directly or indirectly by
CLIENT, for any liquidated damages due to any fault, ar failure to ad, in part or in
total by ECS, its employees, agents, or subcontractors.
21.0 SOURCES OF RECOVERY
21.1 Ail claims for damages related to the Services provided under this AGREEMENT
shall be made against the ECS entity contracting wlth the CLIENT for the Services,
and no other pereon or entity. CLIENT agrees that it shall not name any affiliated
entity including paront, peer, or subsidiary entity or any individual officer, director, or
employee of ECS, unless suds claims are based on acts unrelated to the provision
of Services under this AGREEMENT.
21.2 CLIENT agrees that lt will not seek Damages from any individual associated with
ECS as an officer, prindpal, 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.
22.0 THIRD PARTY CLAIMS EXCLUSION
22.1 This AGREEMENT shall not create any rights or benefds to ponies other than
CLIENT and ECS. No thkd-party shall have the right to rely on ECS' opinions
rendered in connection with ECS' Services without both CLIENT'S and ECS' written
consent and the third-party's agreement to be bound to the same terms and
condltions contained in this AGREEMENT as CLIENT, and third-party's agreement
that ECS' Scope of Services perforated is adequate.
23.0 DISPUTE RESOLUTION
23.1 All claims, disputes or controversies ("Disputes°] ansing out of, or in relation to the
interpretation, application or enforcement of this AGREEMENT shall be derided as
folkxNS:
23.1.1 CLIENT and ECS agree to attend a dispute resolution meeting wlthin fourteen
(14) days of identRcation of a Dispute by either party. CLIENT and ECS agree
to negotiate in good faith to resolve the Dispute.
23.1.2 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
boot ponies.
23.1.3 Should mediation fail to result in resolution of the Dispute, CLIENT and ECS
agree that litigation may be brought by either party.
23.2 Should third-party dispute resolution be required, through mediation or Iltigation, the
non-prevailing party shall reimburse the prevailing party for the prevailing party's
documented legal costs, in addition to whatever otherjudgments or settlement sums
may be due. Such legal costs include, but are not be IimRed to, reasonable
attorney's fees, court costs, forensic consultants and expert witness fees, and other
documented expenses.
23.3 Where legal action is brough4 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 bath parties.
23.4 This AGREEMENT including all matters related to performance and remediation
shall be interpreted according to the substantive Laws of the state of Virginia (but
not including its choice of law rules).
24.0 CURING A BREACH
24.1 A party that believes the other has materially breached this AGREEMENT shall
issue a written termination notice to the other, identifying the cause for lertnination
within five (5) business days of identifying such cause. Both parties shall then
bargain promptly and in good falth to taro 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.
24.2 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.
25.0 TERMINATION
25.1 CLIENT or ECS may terminate this AGREEMENT for breach of this AGREEMENT,
or /or any other reasons which may arise. In the event of termination, the party
effecting termination shall so notiry the other party in wrlting, and termination shall
became effective fourteen (14) calendar days after receipt of the termination notice.
25.2 Irrespective of which party shall effect termination, or the cause therefore, ECS shall
promptly render to CLIENT a final invoice and CLIENT shall immediatety
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.
28.0 TIME BAR TO LEGAL ACTION
28.1 Unless prohiblted by Law, and notwlthstanding any Statute that may provide
additional protection, CLIENT and ECS agree that claims by either pang arising out
of this AGREEMENT or the Services provided hereunder shall not be inltiated more
than two (2) years from the time the party knew, or should have known, of the
condition giving nse to its claim, and shall under no circumstances be initiated more
than three (3) years from the date of substantial completion of ECS' Services.
27.0 ASSIGNMENT
27.1 Except for Services normally or customarily subcontracted by ECS in the
performance of 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 wlthout the written consent of the
other party.
28.0 SEVERABILITY
28.1 Any provision of this AGREEMENT later held to valate a Law, Statute, ar
Regulation, shall be deemed void, and all remaining provisions shall continue in full
force and effect. 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.
29.0 TITLES
29.1 The titles used in this AGREEMENT are for general reference only and are not part
of the AGREEMENT.
30.0 SURVNAL
30.1 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.
31.0 ENTIRE AGREEMENT
31.1 This AGREEMENT including the Scope of Services and Professional Fees and all
exhibits, appendixes, and other documents appended to lt, 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.
31.2 CLIENT and ECS agree that subsequent mod'fiications to this AGREEMENT shall
not be binding unless made in writing and signed by authorized representatives of
both ponies.
31.3 All preprinted Terms and Condltions on CLIENTS purchase order or Work
Authorization, or other service acknowledgement fortes, are inapplicable and
superseded by this AGREEMENT.
31.41f CLIENT fails to provide ECS with a signed copy of this AGREEMENT or a Work
Authorization, by the ad of authorizing and accepting the services of ECS, CLIENT
agrees to be fully bound by the terms of this AGREEMENT as H signed by CLIENT.
< END OF TERMS AND CONDITIONS OF SERVICE >
Ver. 03-03-06