Butler, Fairman & Seufert, Inc./Engr Butler,Fairman,and Seufert,Inc. 1,°kj u„ Q.7 Q 4 ' 4 D bAPPROVEU, AS TO
' Pmj'essional Services ��
Engineering RM BY: Sx____
A_C'RFEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement"), is hereby made
and entered into by and between the City of Carmel, Indiana, acting by and through its Board of
Public Works and Safety (hereinafter, "City"); and Butler, Fairman and Seufert, Inc. (hereinafter,
"Professional").
RECITALS
WHEREAS, City owns and is responsible for its public works, which responsibility includes,
by way of illustration and not by way of limitation, the planning, design, construction, operation and
maintenance of the City's infrastructure system; and
WHEREAS, from time to time, City needs professional services to assist it in effectively and
efficiently fulfilling its foregoing responsibilities; and
WHEREAS, Professional is experienced in providing the professional services covered by
this Agreement which relate to the planning, design, construction, operation and/or maintenance of
City's infrastructure systems; and
WHEREAS, City desires to engage Professional as an independent contractor for the purpose
of providing to City, on a non-exclusive basis, the professional services referenced herein; and
WHEREAS, Professional is qualified and desires to provide City with such professional
services as City may request in writing from time to time.
NOW THEREFORE, in consideration of the foregoing recitals and the covenants and
conditions set forth herein, City and Professional mutually agree as follows:
SECTION 1. INCORPORATION OF RECITALS.
The foregoing recitals are hereby incorporated into this Agreement and made a
part hereof.
SECTION 2. SCOPE OF SERVICES.
2.1 City desires to engage Professional as an independent contractor for the professional services
("Services") set forth in attached Exhibit A which is incorporated herein by this reference.
Professional desires to provide to City said Services.
2.2 Professional acknowledges that it has read and understands this Agreement, and that
Professional's acceptance and/or provision of any Services hereunder shall constitute
Professional's acceptance of this Agreement and all of its terms and conditions.
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2.3 Professional understands and agrees that City may, from time to time, request Professional,
on a non-exclusive basis, to provide additional professional services to assist City in the
planning, design, construction, operation and/or maintenance of its infrastructure system.
The scope of such additional services to be provided by Professional to City shall be as
requested and defined, in writing, by the Mayor or his duly authorized representative. When
City desires additional services from Professional, the Mayor or his duly authorized
representative shall notify Professional and set forth the scope of such additional services
desired as well as the time frame in which such services are to be rendered. Professional
shall then provide, at no cost to City, an estimated cost for such additional services, as well as
the date by which such additional services will be provided. Only after City has approved
Professional's time and cost estimate for the provision of such additional services shall
Professional be authorized to commence same, the description of which additional services
shall be set forth in documents which shall be numbered and attached hereto in the order
approved.
2.4 Professional understands and agrees that City reserves the right, at any time, to direct
changes, or cause Professional to make changes in the Services provided, or to otherwise
change the scope of the work covered by this Agreement, and Professional agrees to
promptly make such changes. Any difference in price or time of performance resulting from
such changes shall be equitably adjusted by City and Professional after receipt of
documentation from Professional in such form and detail as City may require.
2.5 Professional expressly warrants that all Services covered by this Agreement will conform to
the specifications, drawings, samples, instructions, directions and/or descriptions furnished to
or by City to Professional, and that such Services will be performed in a timely manner, in a
good and workmanlike manner and free from defects.
2.6 Professional acknowledges and agrees that it knows of City's intended use and expressly
warrants that all Services covered by this Agreement which have been selected, provided or
performed by Professional, based upon City's stated use, will be fit and sufficient for the
particular purposes intended by City.
2.7 Time is of the essence of this Agreement.
SECTION 3. CITY'S RESPONSIBILITIES
3.1 Upon its request of Professional for a time and cost estimate for the Services and/or
additional services to be provided hereunder, City shall provide such criteria and information
with respect to the Services and/or additional services as are reasonably necessary for
Professional to understand the specific Services and/or additional services requested and to
provide a time and cost estimate thereon.
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3.2 Once City has accepted Professional's time and cost estimate for the Services, City shall:
3.2.1 Furnish to Professional, upon request, such studies, reports and other available data in
City's possession that City considers reasonably pertinent to the Services to be provided, and
which Professional shall be entitled to rely upon in performing the Services tl its
review of same, Professional determines that such information is not consistent and fails to
promptly so notify City; and
3.2.2 Arrange and make all provisions for Professional to enter upon public and private
property as reasonably required for Professional to perform the Services; and
3.2.3 Make available to Professional for consultation, as needed, such individuals as are
necessary for Professional to provide the Services to City.
3.3 City shall designate the Mayor or his duly authorized representative to act on City's behalf on
all matters regarding the Services.
SrrTION 4. PROFESSIONA?,.'S RESPONSIBII:ITIFS
4.1 Once requested by City, Professional shall provide, within five (5) business days thereafter, a
time and cost estimate and/or a request for specific information necessary to provide same to
City.
4.2 Once City has accepted Professional's time and cost estimate for the Services, such Services
shall be performed pursuant to the terms of this Agreement, within such time and cost
estimate, and pursuant to any other terms and conditions specifically enumerated in any
Services description which may be attached hereto.
4.3 Professional shall coordinate its performance, in the form of physical meetings and/or status
reports, with the Mayor or his duly authorized representative, pursuant to a mutually
agreeable schedule and/or as circumstances dictate.
4.4 Professional shall provide the Services by following and applying at all times the highest
professional and technical guidelines and standards.
SECTION 5. COMPENSATION
5.1 As full and complete compensation for the Services performed by Professional hereunder,
and subject to the teiifis and conditions contained in this Agreement, including, but not
limited to, the termination provisions set forth in paragraph 7.1 hereinbelow, City shall pay
Professional those fees as are set forth in Exhibit A.
5.2 Professional shall submit an invoice to City no more than once every thirty (30) days for
Services provided City during the time period encompassed by such invoice. Invoices shall
be submitted on a foiiii containing the same information as that contained on the Professional
Services Invoice attached hereto as Exhibit B, which is incorporated herein by this reference.
, Butler,Fairman,and Seufert,Inc.
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City shall pay Professional for all undisputed Services rendered and stated on such invoice
within thirty (30) days after the date of City's receipt of same. If the undisputed portion of an
invoice amount is not paid within thirty (30) days of its receipt by City, Professional shall so
notify the City. If such undisputed portion of the invoice amount is not thereafter paid within.
five (5) business days after City's receipt of such notice, then a late charge in a sum equal to
one percent (1%) of such unpaid and undisputed invoice amount shall accrue and be
immediately due and payable by City to Professional as a separate debt for each month same
remains unpaid.
5.3 In the event an invoice amount is disputed, City shall so notify Professional. If such dispute
is not resolved to City's satisfaction within ten (10) business days after notice of such dispute
is sent by City to Professional, City shall pay such amount, under protest, into the City Court
of Cannel, which Court shall hold such money until notified of a resolution signed by both
parties hereto or the entry of a final judgment thereon.
5.4 City, in its sole discretion, may agree to pre-pay all or any portion of the compensation to be
paid Professional as a result of its provision of the Services hereunder, which pre-payment
shall be expressly contingent upon and subject to an accounting and reconciliation by and
between the parties at such time as the Services are fully performed, this Agreement is
terminated and/or upon City's request. Professional agrees to immediately disgorge to City
any prepayment amount it has received from City for Services that are disputed by City
and/or which constitutes an overpayment for such Services.
5.5 If additional professional services are required and Professional wishes to hire outside
sources for the performance of same, Professional shall so notify City, and in advance of the
engagement of such outside sources, with an explanation of the need and the qualifications of
same. If City consents to such outside sources, which consent shall not be unreasonably
withheld, City shall reimburse Professional for the actual cost of such outside services, which
reimbursement sum shall be subtracted from the amount of compensation due Professional
from City hereunder. Professional understands and agrees that any and all outside sources so
hired shall be employees or contractors of Professional only. Professional warrants and
indemnifies City for and from any and all costs, fees, expenses and/or damages incurred by
City as a direct or indirect result of the services or use by Professional of outside sources.
This indemnification obligation shall survive the termination of this Agreement.
SECTION 6. TERM
Subject to the termination provisions set forth in Section 7.2 hereinbelow, this Agreement
shall be in effect from the Effective Date through December 31, 1998, and shall thereafter, on
the 1st day of January in each subsequent year, automatically renew for a period of one (1)
year, unless earlier terminated in accordance with the terms and conditions hereof.
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SECTION 7. MISCELLANEOUS
7.1 Termination.
7.1.1 The obligation to provide Services under this Agreement may be terminated by City
or Professional without cause upon thirty (30) days notice to the other party .
7.1.2 The obligation to provide Services under this Agreement may also be terminated by
City for cause, or upon City's failure to appropriate monies sufficient to pay for all f
the Services to be rendered hereunder, immediately upon Professional's receipt of
City's notice to cease all Services.
7.1.3 In the event of Agreement termination, and as full and complete compensation
hereunder, Professional shall be paid for all Services rendered and expenses incurred
to.date of termination that are not in dispute, less any reasonable attorney fees, costs
and other damages incurred by City in the enforcement of its termination rights
hereunder. Disputed compensation amounts shall be resolved as set forth in
paragraph 5.3 hereinabove.
7.2 Binding Effect.
City and Professional, and their respective officers, officials, agents, partners, successors,
executors, administrators, assigns and legal representatives are bound to the other and to its
officers, agents, partners, successors, executors, administrators, assigns and legal
representatives, in all respects as to all covenants, agreements and obligations of this
Agreement not illegal nor otherwise unenforceable in law or equity.
7.3 No Third Party Beneficiaries.
Nothing contained herein shall be construed to give any rights or benefits hereunder to
anyone other than City and/or Professional.
7.4 Relationship.
The relationship of the parties hereto shall be as provided for in this Agreement, and
Professional shall in no fashion be deemed to be an employee of City. In this regard,
Professional and all of its agents, employees, contractors, outside sources and other persons
are not and shall not be employees of City. Furthermore, Professional shall have the sole
responsibility to pay to or for its agents, employees, contractors, outside sources and other
persons all statutory, contractual and other benefits and/or obligations as they become due,
and City shall not be responsible for same. Rather, the compensation to be paid hereunder by
City to Professional shall be the full and maximum amount of compensation and moneys
required of City to be paid to Professional hereunder. Professional hereby warrants and
indemnifies City for and from any and all costs, fees, expenses and/or damages incurred by
City as a direct or indirect result of any statutory, contractual or other claim for wages,
benefits or otherwise by any agent, employee, outside source, contractor or other person of
Professional regarding or related to the subject matter of this Agreement. This
indemnification obligation shall survive the termination of this Agreement.
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7.5 Insurance.
Professional shall procure and maintain, with an insurer licensed to do business in the State
of Indiana and reasonably acceptable to City, Professional Responsibility Insurance and such
other insurance as is necessary for the protection of City and Professional from any and all
claims for damages or otherwise under .':r::r'-;.cis' compensation, occul aic nal disease and/or
unemployment compensation acts, because of errors and omissions, because of bodily
injury, including, but not limited to, personal injury, sickness, disease or death of any and all
of Professional's employees, agents, contractors, outside sources and other persons, and/or
because of injury to or destruction of property, including, but not limited to, any loss of use
resulting therefrom. The coverage amounts shall be no less than those amounts set forth on
attached Exhibit C. Professional shall cause its insurers to name City as an additional insured
on all such insurance policies (except on its Professional Responsibility Insurance policy),
promptly provide City with copies of all such policies, and provide that such policies will not
be canceled without thirty (30) days' prior notice to City.
7.6 Price Terms.
Professional warrants and agrees that all of the prices, terms and warranties granted by
Professional herein are at least as favorable to City as those offered by Professional to other
customers purchasing similar services under the same material terms and conditions.
Professional agrees that it will pass on to City all discounts, rebates and/or savings that it
receives as a result of this Agreement or the Services hereunder provided.
7.7 Force Majeure.
Any delay or failure of either party to perform its obligations hereunder shall be excused if,
and to the extent, that it is caused by an event or occurrence beyond the reasonable control of
the party and without its fault or negligence, such as, by way of example and not by way of
limitation, acts of God, actions by any governmental authority (whether valid or invalid),
court injunction, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage,
labor problems (including, but not limited to, lockouts, strikes and slowdowns), inability to
obtain power, material, labor, equipment or transportation; provided that notice of such delay
(including the anticipated duration of the delay) shall be given by the affected party to the
other party within five (5) business days after discovery of the cause of such delay. During
any such period of delay or failure to perform by Professional, City, in its sole option, may
purchase some or all of the Services from other sources and reduce the Services requested of
Professional hereunder by such degree, without liability to Professional, or have Professional
provide some or all of the Services from other sources at times requested by City and at the
prices set forth in this Agreement.
7.8 Liens.
Professional shall not cause or permit the filing of any lien on any of City's property. In the
event such a lien is filed of record and Professional fails to remove it within fifteen (15) days
after the date of filing thereof, by payment or bonding, City shall have the right to pay such
Butler,Fairman,and Seufert,Inc.
' Professional Services
Engineering
lien or obtain such bond, all at Professional's sole cost and expense. Professional shall
indemnify and hold harmless City from and against any and all liabilities, losses, claims,
costs, attorney fees, expenses and/or damages incurred by City in connection with any such
lien or the removal thereof. This ind . 1 11 •'trvive the termination of
this Agreement.
7.9 Default.
In the event Professional: (a) repudiates, breaches or defaults under any of the terms or
conditions of this Agreement, including Professional's warranties; (b) fails to perform the
Services as specified; (c) fails to make progress so as to endanger timely and proper
completion of the Services and does not correct such failure or breach within five (5)
business .days (or such shorter period of time as is commercially reasonable under the
circumstances) after receipt of notice from City specifying such failure or breach: or (c`
becomes insolvent, files, or has filed against it, a petition in bankruptcy, for receivership or
other insolvency proceeding, makes a general assignment for the benefit of creditors or, if
Professional is a partnership or corporation, dissolves, each such event constituting an event
of default hereunder, City shall have the right to, among other things, (1) teilzlinate all or any
part of this Agreement, without liability to Professional; (2) perform or obtain, upon such
terms and in such manner 2s it deems appropriate in its sole discretion, the Services which
were to be provided by Professional and Professional shall be liable to.City for any excess
costs to City in performing or obtaining the same or similar Services; and/or (3) exercise any
other right or remedy available to City at law or in equity.
7.10 Setoff.
In addition to any right of setoff provided by law, all amounts due Professional shall be
considered net of indebtedness of Professional to City; and City may deduct any amounts due
or to become due from Professional to City from any sums due or to become due from City
to Professional hereunder.
7.11 Government Compliance.
Professional agrees to comply with all present and future federal, state and local laws,
executive orders, rules, regulations, codes and ordinances which may be applicable to
Professional's performance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herein by this reference. Professional agrees to indemnify
and hold harmless City from any and all losses, damages, costs, attorney fees and/or
liabilities resulting from any violation of such law, order, rule, regulation, code or ordinance.
This indemnification obligation shall survive the termination of this Agreement.
7.12 Indemnification.
Professional shall indemnify and hold harmless City and its officers, officials, employees,
agents, assigns and legal representatives from any and all losses, liabilities, claims,
judgments and liens, including, but not limited to, all damages, costs, expenses and attorney
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fees arising out of any intentional or negligent act or omission of Professional and/or any of
its employees, agents, outside sources, contractors or other persons in the performance of this
Agreement, or otherwise. The failure to do so shall constitute a material breach of this
Agreement. This indemnification obligation shall survive the termination of this Agreement.
7.13 Discrimination Prohibition.
Professional represents and warrants that it and each of its employees, agents, contractors,
outside sources and other persons shall comply with all existing and future laws of the United
States, the State of Indiana and City prohibiting discrimination against any employee,
applicant for employment and/or other person in the subcontracting of work and/or in the
perfoiniance of any Services contemplated by this Agreement with respect to hire, tenure,
terms, conditions or privileges of employment or any matter directly or indirectly related to
employment, subcontracting or work performance hereunder because of race, religion, color,
sex, handicap, national origin, ancestry, age, disabled veteran status or Vietnam era veteran
status. City reserves the right to collect a penalty as provided in IC 5-16-6-1 for any person so
discriminated against. This indemnification obligation shall survive the termination of this
Agreement.
7.14 Severability.
If any provision or portion of this Agreement is held to be invalid, illegal or unenforceable by
a court of competent jurisdiction, that provision or portion thereof shall be stricken, and all
other provisions of this Agreement which can operate independently of such stricken
provision shall continue in full force and effect.
7.15 Notice.
Any notice, invoice, order or other correspondence required or allowed to be sent pursuant to
this Agreement shall be and either hand-delivered or sent by first-class U.S. mail, postage prepaid,
addressed to the parties at the following addresses:
CITY: PROFESSIONAL:
City of Carmel Butler,Fairman and Seufert, Inc.
One Civic Square 9405 Delegates Row
Carmel, IN 46032 Indianapolis, IN 46240-3812
ATTN: Kate Boyle
(with a copy to the City Attorney, ATTN: Nelson G. Steele
Department of Law, same address)
Notwithstanding the above, City may orally notify Professional to cease all Services pursuant to paragraph
7.2 hereinabove, provided that such notice shall also then be sent as required by this paragraph within three
(3) days from the date of such oral notice.
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7.17 Effective Date.
The effective date ("Effective Date") of this Agreement shall be the date on which the last of the
parties hereto executes same.
7.18 Governing Law: Lawsuits.
This Ag cenient shall be governed by and construed in accordance with the laws of the State of
Indiana, except for its conflict of laws provisions, as well as by all local laws, and all municipal
ordinances and codes of the City of Carmel, Indiana. The parties further agree that, in the event a
lawsuit is filed hereunder, they waive any rights to a jury trial they may have, agree to file any such
lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the
appropriate venue for and has jurisdiction over same.
7.19 Waiver.
Any delay or inaction on the part of either party in exercising or pursuing its rights and/or remedies
hereunder or under law shall not operate to waive any such rights and/or remedies nor in any way
affect the rights of such party to require such performance at any time then ;.fter.
7.20 Non-Assignment.
Professional shall not assign or pledge this Agreement, whether as collateral for a loan or
otherwise, and shall not delegate its obligations under this Agreement, without City's prior
consent.
7.21 Entire Agreement.
This Agreement contains the entire agreement of and between the parties hereto with respect
to the subject matter hereof, and no prior agreement, understanding or representation
pertaining to such subject matter, or oral, shall be effective for any purpose. No provision of
this Agreement may be amended, added to or subtracted from except by an agreement in
writing signed by both parties hereto and/or their respective successors in interest.
7.22 Representation and Warranties.
Each party hereto represents and warrants that it is authorized to enter into this Agreement and
that any person or entity executing this Agreement on behalf of such party has the authority to
bind such party or the party which they represent, as the case may be.
7.23 Headings.
All headings and sections of this Agreement are inserted for convenience only and do not
form a part of this Agreement nor limit, expand or otherwise alter the meaning of any
provision hereof.
Butler,Fairman,and Seufert,Inc.
Professional Services
Engineering
7.24 Advice of Counsel
The parties warrant that they have read this Agreement and understand it, are fully aware of
their respective rights, have had the opportunity for the advice and assistance of an attorney
throughout the negotiation of this Agreement, and enter into this Agreement freely,
voluntarily, and without any duress, undue influence, coercion or promise of benefit, except
as expressly set forth herein.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA BUTLER, FAIRMAN and SEUFERT, INC.
by and through its Board of Public
Works and Safety
BY: BY:
P �
��.6- 2
Ja s Brai rd, yor Signature
Date:
Printed Name: Nelson G. Steele
V(1)% .�✓ >�� `(� Title: Vice President
Mary Annurke, embe
Date: 3 - g Date:
j(da =/'/J:!•1-17'
Billy W liker, Member
Date: ' `/—9Y
ATTE T:
Diana Corday`C}c�,kasu
Date: N t(�
EXH 3!T A
PROJECT:
Engineering services required in connection with the construction of the Western
Relief Storm System from the proposed 126th Street to 1st Street Northwest.
BASIC SERVICES:
The PROFE`'g1ONAL agrees to perform for the CITY the followinc engineering services that
may be required, namely:
PHASE I
Evaluate existing storm trunk line of the J.S. Morrow / R.J. Follett Drains west
L' (? of Range Line Road from the proposed 126th Street crossing north to 3rd
lj� Street Southwest. Services will include the following:
Verification of Sizes and Locations (See attached map).
Determination of Invert Elevations and Grades.
Determination of Condition of Existing Sewers by Videotaping.
Determination of Capacity of Existing Sewer Lines.
Evaluate Additional Storm Discharge (45 Cubic Feet Per Second) to the
Existing System.
For the aforementioned services, the CITY agrees to pay the PROFESSIONAL
as follows:
Ground Survey $ 5,172.00
* Heavy Cleaning, if required 4,000.00
* Light Cleaning of Sewers 2,000.00
* Videotaping 1,700.00
Evaluation / Recommendations 4,000.00
Total $ 16,872.00
* Paid per linear foot of sewer. (See attached proposal from
Sewer-Cam, Inc.).
•
PHASE II
Scope: Provide Plans and Contract Documents for the construction of the
Western Relief Storm System from the proposed 126th Street to 1st Street
� I
Northwest. Survey by Congdon Engineers is to be furnished by Schmidt
14 Associates.
For the aforernentioned services, th^ CITY agrees to pay the PROFESSIONAL
as follows:
Provide Plans and Contract Documents $ 15,000.00
** Geotechnical (See attached ETS proposal) 3,500.00
$ 18,500.00
** Estimated cost until final bores are completed.
Payment for the work described shall be made to the ENGINEER on a percentage
of completion basis as the work progresses as compensation for services
rendered.
ADDITIONAL SERVICES:
The CITY further agrees to compensate the PROFESSIONAL for additional services
rendered under this Agreement on the basis of actual hours of work performed on the
subject project at the direct salary and wages of each employee, increased by the current
State-certified overhead rate of 1 .4285 percent, plus a 15.0 percent fixed fee. A revised
State-certified overhead rate wilibe used when one is issued. (See Exhibit A-1 for Hourly
Rate Schedule.)
In addition to the hourly fees for additional services indicated above, the PROFESSIONAL
shall be compensated for direct project-related expenses such as job-related travel, permit
applications, etc.
EXHTRtT A-1
Hourly Rate Schedule
The approximate direct hourly charges for each of the categories are listed below.
The hourly rates shown are averages and may increase or decrease depending upon
the personnel assigned to the specific project. The following projected rates are
estimates only.
Classification Approximate Hourly Rates
E-III Engineer III $ 31 .67
E-II Engineer II $ 23.96
E-I Engineer I $ 16.44
FP-IV Field Personnel IV $ 34.33
(Project Coordinator)
FP-III Field Personnel III $ 25.04
FP-II Field Personnel II $ 19.15
FP-I Field Personnel I $ 12.74
EA-III Engineer's Assistant III $ 27.26
EA-II Engineer's Assistant II $ 20.34
EA-I Engineer's Assistant I $ 14.29
S-II Support Personnel II $ 10.89
S-I Support Personnel I $ 9.27
C-II Clerical II $ 19.76
C-I Clerical I $ 11 .38
P-ll Planner / Environmental Specialist $ 22.53
P-I Planner / Environmental Specialist $ 13.13
RW-II Right-of-Way Specialist $ 24.66
RW-1 Right-of-Way Specialist $ 19.60
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Proposal Page No. of Pa;es
- ---\
SEWER-CAM, INC.
15203 Stony Creek Way
NOBLESVILLE, INDIANA 46060
(317) 773-4978
I PFOPOSA:.StJe) irr E0 TO ?. ;NC 'Ct7it. .
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II me propose hereby to furnish material and labor— complete in accordance with above specifications, for the sum of:
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dollars(S I. I,,
11 Payment lc be mace as`ellows:
ti
II At material o 5 ,ld
ouaranee to be as sc.eciF . All won to ,^.e : pin omr9d ;n a went„0,9 f
I ,•1tnner aoccrdtny 10;3ndPJd'crac-1;=.Any atterOcn U daria:cn:rem ibc sGactIcac-s '�1 OrCr`-�
Involving) a O3 (^.rsf3 will va asec,:rd only vr+on,--,-,:eel order-. :✓+d Mil become ' :roa SiccndtUf _ i
ctisr3c over !Ind dbvt a e3u.rein. Alt egreemen:; curt'nge-TT ucicn �h , 3CC,Cents
{� Or Ceta;S CeyonC cur oon:rOl.Owner to Care/ Oro :on,ado anG orbs ,,,,,.Gar(;n%:,ncc. Nol i i5 proposal �J2
•
' Our_arkara _re .ui,y ccrereC Cy Wort-mans _:my3raron In;raance. wt d�'Nn Gy no;dc�eC! n da%3 j
IC/ :�cL'e :1thticc lac Pro —. r :ne aCCvr Gr4cz5, saecaiC3(;Cr,s
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II and conditions are satisfactory and are herehy ac_eoted. to are ase «o ,ed Signature _
to Co the work as specied_ Payment will be ,made 33 ot.'L'ired above.
i
Oate of Acceptance: Signature_ -
February 2, 1998
Mr. Mark Orton, P.E.
Gail :.3eu C:it, Lr C.
GecrechnicaIErtvironroer.ic!
9405 Delegates Row &MCvric1:Ccnsullonls
Indianapolis, Indiana 46240-3812
via facsimile: (317)573-3790
Re: Geoterhnical Exploration and En.. neering Services
Western Trunk Sewer Relief, Mohawk Place Shopping Center to 1st Street
Cap Luel, E\1
ETS Proposal No. 98G025
Dear Mr. Orton:
We appreciate the opportunity to submit a proposal for geotechnical services for the vrruposed
Western Trunk Sewer Relief project in Carmel, Tncii-na.
Project Background arid Proposed Scope of Services
We understand the project consists of about a half-mile (2725 If) of storm sewer construction along
the former Monon Railroad right of way. The prop sed sewer will be 6,0 inch diameter reinforced
concrete (RC) pipe, with inverts about 81 to 16 feet below existing grade. We anticipate the
alignment is truck accessible, either over roads or along the railroad ballast.
Our proposed boring program, subject to modification based on site conditions such as utilities, is
as follows:
Boring No. Station, Offset Depth
Line "A" (ft) (ft)
B-1 1 13+00 Centerline 15
B-2 18+50 I Centerline 1 15
B-3 24+00 ( Centerline 15
B-4 29+80 I Centerline 15
B-5 35+00 Centerline 20
•
-B-6 40+25 i Centerline 20
We will lay out the borings relative to site features shown on the project plans, and will estimate
ground surface elevations from the plans We will call for public utility clearance prior to drilling.
Engineering d Testing services, Inc. 727 Ce r= .i Rocd 3f 7.2;6.7131
• Id;c.,o o5s Q0roit •C.niccgo • .'.'.n-p:-.:s ;c_c�• c':. r:c a =6:�2 si�� itx7?d.7t35
•
Butler Fairman & Seufert `
ETS Propel 98G-025 ..k`
February 2i 1998
Page 2
Laboratory Testing •
Laboratory testing will include visual classification of recovered samples (by Unified Soil
Classification System, USCS, unless Butler Fairman has a preference for AASHTO classification
system), and moisture content and calibrated penetrometer strength of recovered cohesive samples.
GeotedIrlical Report.
We will submit a geotechnical report for this project which will include:
• Description of project and scope c, services.
• Discussion of methods of and results of subsurface exploration.
• Evaluadon of suitability of support of encountered soils for support of proposed sewer Erie.
• Anticipated removal of unsuitable soils if applicable.
• Buoyancy considerations for portion of sewer with shallow cover.
• Bedding and bacll.l recommendations.
• Construction considerations related to the encountered soil and groundwater conditions,
including excavation support and construction control of water.
• Appendix including boring location plan, logs, and laboratory test results.
Schedule
Our standard turnaround time for a project of this type would be approximately three weeks from
. notice to proceed. If this does not meet your project requirements, plenc- notify us, and we likely
can provide an expedited schedule.
G-eotechnical Services -Estimated Feed
Our estimated fee for this project is $2,700,, as outlined on the attached cost estimate spreadsheet.
Project costs will be invoiced on the basis of the unit fees shown on the estimate. These prices are
based on our understanding that the project will be within a period of 6 months following submittal
of this proposal. Should the project schedule be delayed beyond that date, we reserve the right to
renegotiate the unit prices.
•
•
• Butler Fairman & Seufert -Nif4
ETS Proposal98G025 4s
February 2., 1498
Page 3
Cur services will be provided in general accordance witl the attached General Conditions. ?.::
authorization to proceed, please have one copy of this propos4 executed by an authorized
representative of the party responsible for payment of services and return it to our office.
Nosing
ETS appreciates bur long-standing r:'. donsh..) w^th Butler Fairman and Seufert. We a cireciate the
opportunity to submit this proposal, and look forward to working with you on this project.
Respectfully,
GIKEERING & TESTLNG SERVICES, INC.
eth M. Dwyre, P.E.
Geotechnical Services Manager
Enclosures: Cost Estirnate (1 p)
General Conditions (4pp)
Western Trunk Sewer Relief
Mohave c Place Shopping Center to 1st Street
Carmel,Indiana c
ETS Proposal No.98G025 '` "
S J A(, ;2 U A UN UN!T S l RATES No. 1 FE8
i "tiiz t o; d:Layou:ry T L j :_:J.00 1 S500
ATV Su:::H:•;o, if cxu�,d LS 5150.00
Obtain Carmci Permits LS 5100.00 1 5100
Drilling& Sam2iing LF S10.00 1001 51,000
DrI Crew DcLay Time(incl. brush cuing if read) HR S125.00 I 1
jl Subtotal S1,6i00
7�HUZATUK I TESTING SNITS RATES } No. Fi 5
USCS 'v.C,Moisture.Penetrometer LS , sAUU.UU 1 1 S200
Subtotal S200
PROJECT ESTIMATE TOTALS
Eogincer rag fez., lump scm l 5900
Estimated Total Subsurface Exploration Fee SI.600
Estimated Total Laboratory Fcc S200
Estimated Total Project Fee S2,700
•
CARMSw:2. .5 Page 1
General Conditions of Serviceera.
The acceptor of this Agreement:hall Sc referred to as the Client. Engineering It $TA2,NDARD OF C.a AND WL2P_ANT't
Testing Services,Inc.and its subcontractors shall be rcferrod to as ETS- The scope
•
Of cur services under this agreement a au be as oudined in our attached proposal Professicnal ser.ices provided by ETS calla be performed, 6ndir.gs obtained, and
Client. These condirions of set:ice are incorpora'ts4 by reference into the recommendations prepared in acco:dance with g nc:ally accept d cn^'rce,^n
ars:ched proposal,and shall upon acceptance of proposal by Client become part of principles and prsccees,
al g
in 3 maven., CJrlsrSte^:. with '^,3t level of care and I
the agreement under which SC,^,,:e3 ire to be performed sv c for Client. ordinarily exercised members q Iker
' by f he profession currently practicing under
similar ccndit:ons at the same time and in the same or similar locality, This
RIGFr OF ar1 R`f AND RICiHT TO PROOFED � ' T ISOTHER W .. .. ,
�.; :it,.f 1 i li Y LIEU u O F AIL -,''•o,.•,`r.t=J E iT:
EXPRESSED OR IMPLIED. The Client rccognLbes subsurface conditions may
The client shall grant cr obtain a right of entry for ETS, tab agents, staff, vary Lrorn those observed. at locations where borings, surveys, or explorations as;
consultants, and contractors or subcontractors, for the purpose of performing and made and that site cecditicns may chance with dine. The data,interpretation:and
with the right to perform all seta, studies, evaii:,gores .,-.d research including recormendatiens prepared by ETS .ill be based solely on the ir.:orn,aricr
without limitation the per*artrancecC tests and evaluations, pursuant to the agreed available to ETS. ETS is responsible •for those data interpretations and
services. Client represents that ha possesses all necessary permits and licenses recommendations prodded for the Client's sole use to uiLil the purpose of this
required for the continuation of ETS' activities at the site. ETS will take Agreement. ETS is not responsible for other pares' interpretation and/cr use of
reasonable precautions to minimize damage to the site due ro the performance oC the Ls:formation c_:eloped.
i s operationt but it shall be understood by Client that in the normal course of
per-ring these operations scree damage may occur. Client accepts the fact this PLnf.IC LLa9tL�'f
is inherent to our work and '>.ill net hold ETS liable or rzsponsiblc for any such
effect. dar,.age or alteration. The costs of restoration for a-n; damage resulting ETS ,maintains workers' compensation and employer's liability insurance for our
flora ETS'operations arc not included in the fees for the coached propoosal. Upon employees as requ.-cd by state laws. In addition, ETS maintains compre`.:;sine
request and at Client's sole cost and expense, ETS will restore the site to general liability and auto liability insurance with limits which ETS does
conditions reasonably similar to those existing prior to ETS'operations. reasonable and edc,uate. in the event Client requires specific inclusions of
coverage in addition to those obtained by ETS, or -s
n od limits of!iabi!iry in
Client is responsible for accurately delineating the lecaticns of all subterranean ETS' liability polrcics, the costs for such inclusions or limits shall b:
structures and utilities, and it is understood Client shall furnish ETS with a paid by Client. A CersiScata of Insurance can be supplied evidencing such
diagram(s) indicating the location and boundaries of the site and subsurface covcr:eee. The Client agrees ETS -sill not be liable or responsible for any loss,-
structures (pipes, tanks, utilities, etc.). ETS will take reasonable precautions to damage,or liability to cL ent'acycod the a::outs limis,coverage, or eorditiors of
avoid khown subterranean structures. If boring/test pit Iocacion(s) are provided by such insurance specified shove. In the event any third parry brings suit cr claim
Cl enC ETS reserves the right ro deviate a reasonable distance from the boring%test for damages against ETS alleging exposure t'o or damage.from material, elements
pit Iocation(s). ETS shall not be liable for any property damage or bodily injury or conati-.;cites at or L'mm Client's facility before, during, or aPer the services of
arising from damage or interference with ssrrth'a or subterranean structures this Agreement. which Is alleged to have resulted in or caused disease or any
(including, without limitation. pipes, tanks, utilities, etc.)which ETS is not aware adverse health condition to any third-parry or resulting in costs for remedial action,
of or which are not called to our attention in writing and'or arc incorrectly shown un-inhabitability of the property,or ocher ptopery damage, then: the Client ag ecs
on the plans 5srnished by Client in connection with work performed under this to protest defend, indemnify and hold harmless ETS in any such suit or claim and
Agreement Client waives any claim against ETS and agrees so protect, defend, pay or. ETS' behalf any judgment resulting against ETS, including any ir,ter:1i
indemnify and hold harmless ETS from any claim or liability for injury or loss, thereon. Further, Client with ETS' concurrence, will select, hire and pay en
including costs of defense arising from damage to subterranean structures or attorney to defend any such suit or claim, will pay court coats for which ETS may
utilities not identified or accurately located. In addition, Client agrees to be liable in arty such suit ar,d will bear and pay litigation expenses Client incurs in
compensate ETS for any time Cr expenses incurred by ETS in defense of any such providing a reasonable and professional defense which will be provided by Client
claim. Such compensation shall be based upon ETS' prevailing Pate Schedule and according to prevailing local standards. Client will have the right to investigate,
expense reimbursement policy relative to recovery of direct project costs. negotiate and settle, with ETS'concurrence, any such suit or claim, and ETS will
cooperate in the defense of any such suit or claim. ETS shall not be responsible
i(,,LING AND P,A'('4E T for claims, damages, :033es and et pcnses out of or resulting from the acts anther
omissions of the Client, its employees, agents, staff consultants, contractors or
Unless otherwise indicated in our proposal. our billings will he baser on actual subcontractors employed by it or any other entity.
accrued time, test cost, and expenses. Client agrees to pay invoice upon receipt.
Should payment not be received within 30 days, the amount due shall bear a LIMITATION OFL Iay IT IT?
service charge of IV' percent per month or 18 percent per year and the cost of
collection, including reasonable attomcy's fees, if collected by law or through an The Clicnt.agrces to limit ETS'liability whether in contract,tort or otherwise to the
attomcy. If 1'A percent per month exceeds the maximum allowed by law, the Client and all construction contractor; and subcontractors on the project arising
charge will automatically be reduced to the maximum legally ailo'.ecd. If Client from negligent professional acts, errors or omissions, such that the total aggregate
has any objections to any invoice or part thereof submitted by ETS, he shall so liability of ETS to all those named shall not exceed S50,000 or ETS' total fee for
advise us in writing giving his reasons within 15 days of receipt of such invoice. the services rendered on this-project. whichever is greater. In no event shall ETS
Failure to provide such a.writ'.er statement shall constitute acceptance of the be liable whether in contract art or otherwise for Client's loss of profit. delay,
invoice submitted. Any amounts not in dispute shall be conside:cd valid charges damages cr for any special, incidental or consequential loss or damage of arty
and arc payable upon receipt ofirr•voice. Client agrees it will cot exercise arty right Harare arising at anytime from any eagle whatsoever. In the event that the Client
of set-oil it has under this Agreement, any continuing agreement with ETS.or any does not wish to limit nur liability to this turn, we will waive this limitation up to
right of sct-ot provided by law, including bat not limited to Client's inability to SI,000,cuo upon the Client's wri-en request provided that the Client agrees in
obtain fir,ancint zoning, permits, approval of governmental or regulatory agencies writing to pay for this waiver en additional consideration of 4% of our total fee Cr
or any other cause, reason or contingency whosoever. If Cne project is terminated S400, whichever is greater. This sum shall be a Waiver of Limitation of Liabilis
in whole or in par, ETS shall then be paid for services performed prior to our Charge and aiiI not be construed as being- a charge for insurance of any type,but
receiving or issuing written notice of such termination, in addition to our will be increased consideration for the :treater risk involved. The Client farther
reimbursable expenses and any termination costs incurred. Temsiostion costs agrees to notify any contractor or subcontractor who may perform work tar.
may,at our sole discretion. include completion tit-analysis and recurs necessary to connection with any design, report or study prepared by ETS of such limitation of
document our tiles and protect our professional reputation. ETS reserves the right liability and require the contractor and his subcontractors an idcnucal limitation c.
to increase the unit rates included in the .zreen.ent Cn .,a a- -v:.sat,:) of rife ETS' iiabsliry for 'da...;te.. suad by the contractor or the subcontractor anSi^:
effective date of this agreement.
(9701) Engineering S Testing Services,Inc.
ceciec ^err r,sets.a'ns.entt a.t.turiiais cona'.lun•s
•
fromETS' negligent professional acu, errors or omr:;.vn,. iJ shall cot be Liable &7ARDOUS SUBSTANCES AO CONSTITUENTS
for extra work or other consequences due to changed conditions or for costs related
to-failure of the construction contractor or subcontractors to perform or install Client egress to advise ETS upoc execution of this Agreement, and prier to
work in accordance with the plans and specifications. beginning any work of arty known or suspected hazardous substances or any
condition etds:ing anion c: near the site presenting a potential danger to human
DCCUMF.NT - health, the environment, or equipment of which Client has knowledge, whether
contained in a product material. by-product,waste or sample and whether it exists
Client will furnish or cause to be furnished such copies of reporta, der: . srudies, in •. .;lid, Gc id, se,,.. solid
or gaseous fern. i:•. '.`.- even: that rest sample;
plans, apcciucations, documents and other information decmcd necessary by ETS obto;ned during our work contain substances hazardous to health, safety or the
for proper performance of the scr:ice . ai S may rely upon Client-provided environment. these samples remain the property of the Client. Client agrees to
documents i. re ring -races requited under this A,3reemeng however, provide continuing information regarding known or suspected hazardous
ETS assumes no responsibility or liability for their accuracy. substances as is becomes available to the attention of Client in the houm_. 3y virtue
of en`_ri::g into this Agreement or of providing services hereunder, ETS does net
Client provided documents will remain property of Client. All documents, assume control of or responsibility for reporting to any federal, state or local public
including but not limited to, drawings, speciLcations, reports, laboratory test data agencies arty conditions at t e site that may present a poundal danger to health.
calculations and estimates prepared by ETS as insturnents of service pursuant ro safety,or the environment. -OWe-:err,ETS teser:es its right to report such findings
this Agreement, are and shall remain, the property of ETS. Client agrees that all to the appropriate regulatory or governmental agency -C in our opinion, an
document,of any na,_ro furnished to Client or Client's agents or cesignets.if not imminent public health or safety risk is involved. Client agrees to give notice;co
paid for, will be returned upon demand and will sot be used by Client for any the appropriate federal, state or local public agencies as required by laty
purpose whatsoever. Client Esther agrees that under no c umst,nces shall any :oiiowing any disclosure as set forth in the preceding paragraph, or if env
Cc-car::es�produced by ETS pursuant to this Agreement be used at azy location on hazardous substances are discovered or reasonably stispected by ETS after its
for any project or project C:C.enSiOn not expressly provided for in this Agreement scr.icos have begun. ETS may, at its discretion, suspend its services. whether or
without ETS' prior written permission. If Client uses all or any portico of our not ETS suspends its services. in whole or in part, the Client and ETS agrees that
work on another project without our permission, Client shall to the maximum the scope of services, terms and conditions of service, schedule and the estimated
extent permitted by law, protest, defend and held harmless ETS from any and all fees or budget shall be adjusted in accordance with the disclosed information or
claims arising from such unauthorized reuse. Any such reproduction or condition;and ETS may at its discretion terminate the Agreement, In the event:he
distribution of documents by client shall be at Client's sole risk and without Agreement is terminated pursuant to this section, the Client shall pay ETS for all
liability or legal exposure to ETS. services performed to date plus termination expenses es ,described in the
Agreement.
SAM?f ,ANDLR4O AND Ric viTION
if all er any pare of the scope of services is to be performed in the vicinity or in an
Cencraiy, test samples or specimens are consumed or substantially altered during area where dust, fumes,gas,noise.sibcation,particulate or norperticulate matter is
the conduct of tests and ETS will maintain specimens and samples on required by in the atmosphere *here it raises a potential health or nuisance hazard to those
law, and at our sole discretion, will dispose of(subject to the ffollowing) any word.g ;;ne vicinity or area of such conditions. Client shall notify ETS of such
remaining sample immediately upon completion of tests. At Client's wcttten conditions, potential health or nuisance hazard(s). Thereafter, ETS shall take all
request and cost ETS will deliver the samples to Client, necessary tad reasonable measurements to protect its employees, agents, or
subcontractors against such possible health or nuisance hazard(s). The reasonable
• Non-Hazardous Samples direct costs of ouch measures shall be paid by Client.
ETS will maictain preservable rest samples and specimens or the residua therefrom Client agrees to the maximum extent permitted by law to protect, defend, `,cad
for 30 days after submission of our report free of storage charges. After the initial harmless and indemnify ETS from and against any and all third party claims and
30 days and upon written request, ETS cast retain test specimens or samples for a liabilities resulting from:
mutually acceptable storage charge and period of time. Client agrees that it will
not hold ETS responsible cr liable for any loss of test specimens or samples Client's violation of any federal, state or local statue, regulation or ordinance
retained in storage. relating to the use or disposal of hazardous substances,materials or censtituentr,
hazardous or Potentially I-iazsrdous Samples Client's undertaking of or arrangement for the handling, removal, treatment
storage, transportation or disposal of hazardous substances or constituents found
In :he event that samples contain substances or constituents hazardous or or identitied at the site;
detrimental ro health, safety, or the environment as defined by federal, state or -
local statutes.regulations. or ordinances. ETS will, after completion a;testing and Changed conditions or hazardous subst.snees or constituents introduced at the sire
upon expiration of the time period set above, and at Client's expense, using a by Client or third persons before or after the completion of service,herein;
manifest signed by Client ass generator,have such samples transported b a location
selected by Client for anal disposal or treatment of samples. Client agrees to pay Allegation that ETS iaa handler,generator, operator, treater, starer, transporter.or
sll costs associated with the materials manacemcnt storage and returning the disposer under the Resource Conservation and Recovery Act of 1976 as ar„endec
samples to Client. Client recognizes and agrees that ETS is acting as a bailee and or any other similar'federal,state or local regulation or law.
at so time assumes title of said waste.
D..WOVERY OF FM1ANTIC!FATED HALARDOUSI.(ATEERIALS
CCNT,ANNA ,D EQUIPMENT
The discovery of unanticipated hazardous materials constitutes a changed
All laboratory and geld equipment contaminated in performing our services under condition which requires renegotiation of the scope of work or terminacon uI
this agreement and which results from unforeseeable circumstances and which services. ETS and the Client agree that the discovery of unanticipated hazardous
cannot be reasonably decontaminated shall become the property and responsibility materials may make tt necessary for ETS to take immediate measures to protect the
of Client: All such equipment shall be disposed of in an appropriate manner at the health and safety of its cmpio)ees, agents or subcontractors. Client agrees to pa.
expense of the Client er.d the Client agrees to pay the full replacement value of any the realonablc ccss of such protective measures as well as any egcipn:en:
sue equipment, decontamination or ocher costs incident to the discovery of unanticipated
hazardous material,. ETS will notify Client of such discovery as soon a;
pr_ctica'le.
(9701) Engineering Ss Testing Services,Inc.
Ccn:cehnical. rmrrem ea'al 2`.tater.tls Cou'a..lru
Notwithstanding any other portion of this Agreement, Client waives any claim breach thereof and PARTY means the Client or ETS,or their respective insurers
against ETS and agrees to protect, defend, hold harmless and indemnify ETS from or sureties.
as citir;, liability and/or defense costs for injury or loss arising corn ETS'
discovery ofandeipated known or suspected hau,dous substances including, but The parties agree that the authority of the media':;;-arbitrator sail extend to
not limited to, any costs created by delay of the project and any cost associated disputes arising on or after the date of ETS' contract concerning the Project•
with possible reduction of the prb.pr.ty's value. Requests for mediation-arbitration of any dispute shall be mach in noting within
seven(7)calendar days of the date the requesting party knew or should reasonable
C1.A1\4� have known of the dispute. In no event shall the demand for mediation-arbitration
be made more than three(3)years from the date of substantial completion of ETS'
[a the event that Client makes claim against ETS at law or otheraisc, for any paricipanon in the Project
alleged errors,omission,or acts arising out of the performance of our services, that
cannot be mutually resolved without resorting to litigation,and Client ails to prove In the event that any parry shall request mediation-arbitration of any dispute as se
such claim, then Client shall pay all cosu incurred by ETS in defending ourselves forth in this section, :he Client and ETS shall select by mutual agreement a neutral
against the claim, including, without limitation- ETS' personnel•rc!ac.d costs, mediator-arbitrator within seven (7) calendar days of the data of receipt by the
attorrey's fees, court costs and other reclaim-related expenses, including. without ether parry of the written request for mediation-arbitration. In the event of failure
limitation, costs,fees, and expenses of ercrJ. to reaoh such agreement, or in any instance when the selected mediator-arbitrator
in unable cr unwilling to serve and a replacement cannot be agreed open by the
TFRV(NATION Client and ETS. such successor mediator-arbitrator shall be chosen as spcciaed in
the Gms:ruction Industry y Arbitration, Rules of the American Arbitration
This agreement may be terminated by.either parry upon seven (7) days wr ,Oen A35c<iat:en.
notice in the event of 9ubsantial failure by the other pay to perform in a...,,dance
with the terms hereof. Such terminatic n shall not be effective if that substantial The mcdiator•arbitrat,r shall hare authority to determine all procedural questions.
failure has been remedied before expiration of the petted specie ed in the written including, but not !invited to, any questions as to procedural arbitrability. ?oth
notice. in the event of termination, ETS shall be paid for services per:c.-^ed to the pares specifically acknowledge that. in accordance with the Grsr paragraph ciao,
:ruination notice date plus reasonable termination expenses. section above, the mediator-arbitrator in his/her own discretion, or en the
application of any party, may mediate-arbitrate any claim, which process may, but
In the event of termination, or suspension for mete than three(3) months, prior to does not cecessartly, include meeting individually with any party while eta Duding
completion of ail reports contemplate ` .:is Aetccrtent, ETS may complete such the other party Cr parties as determined v.itit the discretion of the mediator.
- analyses and records as are necessary to complete its files and may also complete a arbitrator.
report on the services performed to the date of notice of termination or suspension.
The expenses of termination or suspension shall include all direct costs of ETS in All communications with the mediator-arbitrator, including but not limited to, Cr,y
completing such analyses.records and repors. demand for mediation-arbitration, shall be by car iSed mail to hin— ser and copies
by certified mail to all other parties involved in said dispute. All meth men-
SAMPLiNG OR TEST LOCATION arbitration shall be held at a location selected by mutual agreement between the
Client and ETS. In the event of failure to reach such an agreement, the location
Unless otherwise stated, the fees in this proposal do not include costs associated shall be selected by the mediator-arbitrator. The fee of the mediator-arbitrator and
with surveying of the site by a registered lard surveyor or ocher accurate honzontal the casts of transcription and such other costa incurred by the mediator-arbitrator
and vertical locations of services performed. Field tests or boring locations shall be apportioned equally between parties. The parties mutually agree that the
described in our report or shown on sketches are based soon information famished Construction Industry Arbitration Rules of the American Arbitration Association.
by others or estimates made in the tield 'cv our representatives. Such dimensions, where not inconsistent with the Agree:nen; shall he applicable to any mediation-
depths or elevation should be considered as approximations unless otherwise arbitration required by this Agreement.
stated. If the Client specifics a test or boring location, we reserve the right to
deviate a reasonable distance from the location specified. ETS reserves the right to In the event that a dispute should arise relating to the performance of the services
terminate this contract if site conditions prevent drilling at or near the designated to be provided under this Agreement, and should that dispute result in litigation,it
boring locations and these conditions were nor revealed to us prior to submitting is agreed that the prevailing party shall be entitled to recover all reasonable tests
this proposal. LC in order to complete the borings to their designated dcpt:7, a re- incurred in the defense of the claim, including staff time. court costs, attorney's
drilling is necessitated by encountering impenetrable subsurface objects, this will fees and other claim-related expenses.
be charged for at the appropriate rate:in the Rate Schedule.
SEVER.&IL(TY
PISPUI'ES
In the event that any provision herein shall be deemed invalid or unenforceable,the
All claims, disputes or controversies arising out of or in relation to the other provisions hereof shall remain in 411l force and effect and binding upon the
interpretation, application or enforcement of this Agreement or any breach thereof parties hereto.
including, but not limited to, disputes arising from the performance of the services
to be provided under this agreement including, but sot limited to, disputes arising SURvIVAT,
out of alleged design defects, breaches of contract, errors, omissions, or acts of
professional negligence, or the arbitrabi!ity of such disputes, shad be decided by a All obligations arising prior to the termination of:his Agreement and all provisions
anal and binding arbitration decision by the media cr•arbitrator in accordance with of this Agreement allocating responsibility or liability between Client and ETS shall
the procedures act forth in the remaining paragraphs of this section. This survive the completion of the services and the termination of the Agreement.
mediation•arbitration procedure shall not apply to disputes arising out of death or
bodily injury. J;i i GiLA i iON
For the purposes of this section: PROTECT means the total cons:r'nction to be built This A_ e:ment and the documents attached hereto and which are incorporated
by the Client, including, but not limited to, all tests, professional services, and herein constitute the entire A;reement be con the parties and cannot be chanbcd
labor necessary to produce the construction and all materials and equipment except by a written instrument signed by both the parties.
incorporated or to be incorporated in such consrr:ction: DISPUTE. means any
claim.controversy,or other matter in qucs:ton between the Client and ETS arising
out of or relating to this Agreement for the ;,ruvisicn of professional services or
(9701) Engineering &Testing Services,Inc.
Ctctce'uu,,t.En,',or.-er.tzl.tt trots/,C_roviL•au
TITLES FAILURE TO E COUNTER CQNTAMNATION
T}re•Scading or title of a section is provided for convenience and information only It is possible that exploration may fail to reveal the presence of contaminants at
and shail not be construed to alter or affect the provisions included heroin. sites where conuminants arc assumed or expected to exist. Client understands that
ETS' failure to discover coetaosinanti through appropriate and mutually agreed-
ASSiG JATj(�i! upon sampling techniques does not guarantee or warrant that contaminants do not
exist at the site. Similarly,a sire which in.fact is uns'c:ed by contaminanu at the
Neither part/ may delegate, assign, sublet or transfer its duties, respcnsibilides, erne of ETS' subsurce exploration may later, due to natural pbcnomcna cr
obligations or interest in the Agreement without written consent of the other parry. human intervention,become contaminated. Client agrees that it shall not hold ETS
liable for failing to discover contaminants wriest exact location is impossible to
cArIrMINO LAW foretell from the surface,or for failing to discover contaminants which,in fact did
not exist at speci`o sampling locations at the tints such samples was collected.
This Agreement shall be governed in all respects by the laws of the State in which ETS agrees to provide these services In accordance with the standard of care as set
their services are performed. forth in the Agreement. Accordingly, Client waives any claim against ETS. sad
agrees to protect, defend, indemnify and save ETS harmless from arty claim: or
OTHER CONSIDERATION. iiibiiirf for injury or lose ansing from ETS' failure to detect the presence of
contaminants through techniques commonly employed for that purpose. Client
The presence of hazardous materials on or beneath the surface of a site creates also screen to compensate ETS for any time spent and expenses incurred by ETS in
e nraa ina.ry risks which should be fairly and equitably allocated in proportion to defense of any such claim, with such compensation to be based upon ETS'
the benefit between the Client and ETS (ETS' bereft in relatively small as it prevailing fee schedule and expenses reimbursement policy relative to recovery cf
consists only of the profit from its fee). Also, such work involves unavoidable, direct project cuss.
•
eon-transferable and often uninsurable risks for ETS created by the nature of the
he ::dour materials, the limitations of present technology and shortcomings of our PL (.IC RF&ONS;SILITY
civil justice system.
If the Client, without any reason cr with unjust cause, decides to disregard ETS'
STATE��OE THE PRACTICE recommendations pertaining to public health and safety, Client waives any cl=ini
against ETS and agrees to protect,defend, indemnify and hold harmless ETS font
The Ciicnt accepts that field techniques are evolving and s andards and regulations any claim or liability for injury or loss arising from Client's failure to follow rich
era subject to rapid change such that selected accepteble, effective design recommendations.
approaches may become obsolete by the time of execution. The Client agrees to
pay ETS' additional reasonable fees and expenses caused by new regulations or CONTRAC T_RENEC-OTiA i O J AND TE.RRAWATiON
technologies and waives any claim against ETS.
S.
ETS sell advise the Client 15 soon as practicable regarding arty changed
AQUIFER CONT lNATON conditions 'or unforeseen circumstances. If a renegotiated contract cannot be
agreed to, Client agrees that ETS has an absolute right to terminate the contract
Client recognizes that it is impossible for ETS to know the exact composition of a arid the Client will remunerate ETS for services rendered and costs incurred up to
sire's subsurface even after employing the most comprehensive exploratory the rinse of termination,as well as those associated with termination,
program reasonably possible. As a result, there is a risk that sampling may result
in contamination of certain subsurface areas, as when a probe or boring device SWERf T Y
moves through the contaminated are,linking it to an aquifer, underground stream,
or other hydrous body not previously contaminated and capable of spreading Any element of this Agreement later held to violate a law or.regulation shall be
het rdoaaa material off-site. Because nothing can be done to prevent such an deemed void,and all remaining provisions shall continue in force..
occurrence, and because such sampling is a necessary aspect of the work which
ETS will perform for Client's benefit, Client waives any claim against ETS and Tr'.litD?A.RTfR
agreea to protect, defend, indemnify and save ETS harmless from any claim or
liability for injury or loss which may arise as a result of cross cocamir ation A third parry's reliance. on ETS documents is not contemplated. If a third par:
caused by-sampling except to the extent that such claim or liability results from reliance is desired for a project document then the third party in question shall be
ETS'negligent acts or omissions. Client further agrees to compensate ETS for arty considered a third party beneEciary of the project•specic contract and chess
tints spent or expenses incurred by ETS in defense of any such claim, in General Conditions. The third party agrees to sign an agreement attesting to be
accordance with ETS' prevailing fee schedule and expense reimbursement policy bound by all limitations expressed in the project-specific contract and test
relative to recovery of direct project costs. The above indemnification provision General Conditions. The Client shall advise ETS of any third party reliance
also extends to claims against ETS which arise out are related to, or are based requests.
upon, the dispersal, discharge, escape, release, spillage or saturation of smoke,
vapors, soot. fumes, alkalis, acids, toxic, chemicals, liquids. gases cr any other
material,irritant contaminant or pollutants into the atmosphere, or on, in, upon,.or
into the:orate or subsurface of soil,war or watercourses,objects or any tangible
matter whether such circumstance or events are sudden on net END
i97t01) Engineering Se Itsting Services,Ire.
Gceicc`:iul•Er.v+rerre:nut x tshmn gals Ccrsulaeu
Butler,Fairman,and Seufert,Inc.
°Professional Services
Engineering
EXHIBIT B
Professional Services Invoice
Date:
Name of Company:
Address &Zip:
Telephone No.:
Fax No.:
Project Name:
Invoice No:
Person Service Services Provided Hourly Hours Total
Performing Date (Describe in detail in one- Rate Worked
Service tenth hour units)
GRAND TOTAL
Signature
Printed Name
Butler,Fairman,and Seufert,Inc.
Professional Services
Engineering
-. EXHIBIT C
INSURANCE COVERAGES
Worker's Compensation & Disability Statutory Limits
Employer's Liability:
Bodily Injury by Accident: $ 100,000 each accident
Bodily Injury by Disease $ 500,000 policy limit
Bodily Injury by Disease $ 100,000 each employee
Property damage, contractual liability,
products-completed operations:
General Aggregate Limit (other than
Products/Completed Operations): $2,000,000
Products/Completed Operations: $2,000,000
Personal &Advertising Injury
Limit: $1,000,000
Each Occurrence Limit: $1,000,000
Fire Damage (any one fire): $ 50,000
Medical Expense Limit
(any one person): $ 5,000
Comprehensive Auto Liability
Owned, hired and non-owned each accident
Bodily Single Limit: $1,000,000
injury and property damage
Umbrella Excess Liability
Each occurrence and aggregate $2,000,000
Maximum Deductible $ 10,000
Professional Responsibility Insurance:
Per Occurrence: $2,000,000
Aggregate: $2,000,000