HomeMy WebLinkAbout2013-056 Planning - Terracon for Geotechnical Subsurface investigation $5,600 �/mss
[Departmental Use Only]
TITLE BM Phase 2 Geotech
FY 2013
NORTH CAROLINA
SERVICES AGREEMENT UNDER $90,000.00
RFP — NO REIMBURSABLE EXPENSES
ORANGE COUNTY
This Services Agreement (hereinafter "Agreement"), made and entered into this 15th day
February, 2013, ("Effective Date") by and between Orange County, North Carolina a body
politic and corporate of the State of North Carolina (hereinafter, the "County") and Terracon
Consultants, Inc., (hereinafter,the "Provider").
WITNESSETH:
That the County and Provider, for the consideration herein named, do hereby agree as
follows:
1. Services
a. Scope of Work.
i) This Services Agreement ("Agreement") is for professional services to be
rendered by Provider to County with respect to (insert type of project):
Geotechnical Investigation of subsurface conditions along the proposed route for
water and sewer infrastructure installed as part of the Buckhorn Mebane Phase 2
Utility Extension Project.
ii) By executing this Agreement, the Provider represents and agrees that Provider is
qualified to perform and fully capable of performing and providing the services
required or necessary under this Agreement in a fully competent, professional and
timely manner.
iii) Time is of the essence with respect to this Agreement.
iv) The services to be performed under this Agreement consist of Basic Services, as
described and designated in Section 3 hereof. Compensation to the Provider for
Basic Services under this Agreement shall be as set forth herein.
2. Responsibilities of the Provider
a. Services to be provided. The Provider shall provide the County with all services
required in Section 3 to satisfactorily complete the Project within the time limitations set
forth herein and in accordance with the highest professional standards.
b. Standard of Care.
i) The Provider shall exercise reasonable care and diligence in performing services
under this Agreement in accordance with the generally accepted standards of this
Revised January 2013
type of Provider practice in North Carolina and in accordance with applicable
federal, state and local laws and regulations applicable to the performance of
these services. Provider is solely responsible for the professional quality,
accuracy and timely completion and/or submission of all work related to the Basic
Services.
ii) Provider shall be responsible for all errors or omissions, in the performance of the
Agreement. Provider shall correct any and all errors, omissions, discrepancies,
ambiguities,mistakes or conflicts at no additional cost to the County.
iii) The Provider shall not, except as otherwise provided for in this Agreement,
subcontract the performance of any work under this Agreement without prior
written permission of the County. No permission for subcontracting shall create,
between the County and the subcontractor, any contract or any other relationship.
iv) Provider is an independent contractor of County. Any and all employees of the
Provider engaged by the Provider in the performance of any work or services
required of the Provider under this Agreement, shall be considered employees or
agents of the Provider only and not of the County, and any and all claims that may
or might arise under any workers compensation or other law or contract on behalf
of said employees while so engaged shall be the sole obligation and responsibility
of the Provider.
v) Provider agrees that Provider, its employees, agents and its subcontractors, if any,
shall be required to comply with all federal, state and local antidiscrimination
laws, regulations and policies that relate to the performance of Provider's services
under this Agreement.
vi) If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Provider represents that it and/or its
employees, agents and subcontractors engaged in such activities possess such
licenses, certifications, or credentials and that such licenses certifications, or
credentials are current, active, and not in a state of suspension or revocation.
3. Basic Services
a. Basic Services.
i) The Provider shall perform as Basic Services the work and services described
herein and as specified the Provider's proposal to Hobbs, Upchurch and
Associates, dated November 19, 2012, which is fully incorporated and integrated
herein by reference. The work will be limited to the item listed as "Horizontal
Bore Locations Only" in Section 3.0 of the above proposal. In the event a term or
condition in any document or attachment conflicts with a term or condition of this
Agreement the term or condition in this Agreement shall control. Should such
conflict arise the priority of documents shall be as follows: This Agreement,
Provider's Proposal together with attachments.
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ii) The Basic Services will be performed by the Provider in accordance with the
following schedule: (Insert task list and milestone dates)
Task Milestone Date
1. Borings and other fieldwork Within two weeks of Notice to Proceed
2. Final Geotechnical Report Within four weeks of Notice to Proceed
iii) A Notice to Proceed will be issued to ptbVI& ponce the final route for the sewer
line has been established. The milestones above will be relative to the date of the
Notice to Proceed. Should County reasonably determine that Provider has not
met the Milestone Dates established in Section 3(a)(ii), County shall notify
Provider of the failure to meet the Milestone Date. The County, at its discretion
may provide the Provider seven (7) days to cure the breach. County may
withhold the accompanying payment without penalty until such time as Provider
cures the breach. In the alternative, upon Provider's failure to meet any Milestone
Date the County may modify the Milestone Date schedule. Should Provider or its
representatives fail to cure the breach within seven (7) days, or fail to reasonably
agree to such modified schedule, County may immediately terminate this
Agreement in writing, without penalty or incurring further obligation to Provider.
This section shall not be interpreted to limit the definition of breach to the failure
to meet Milestone Dates.
4. Duration of Services
a. Term. The term of this Agreement shall be from December 20, 2012 to four weeks
beyond date of Notice to Proceed, as noted in Section 3.
b. Scheduling of Services
i) The Provider shall schedule and perform his activities in a timely manner so as to
meet the Milestone Dates listed in Section 3.
ii) Should the County determine that the Provider is behind schedule, it may require
the Provider to expedite and accelerate his efforts, including providing additional
resources and working overtime, as necessary, to perform his services in
accordance with the approved project schedule at no additional cost to the
County.
iii) The Commencement Date for the Provider's Basic Services shall be determined at
a later date and issued in the Notice to Proceed.
5. Compensation
a. Compensation for Basic Services. Compensation for Basic Services shall include all
compensation due the Provider from the County for all services under this Agreement.
The maximum amount payable for Basic Services is Five Thousand Six Hundred Dollars
($5,600.00). In the event the amount stated on an invoice is disputed by the County, the
County may withhold payment of all or a portion of the amount stated on an invoice
until the parties resolve the dispute. Payment for Basic Services shall become due and
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payable in direct proportion to satisfactory services performed and work accomplished.
Payments will be made as percentages of the whole as Project milestones as set out in
Section 3(a)(ii) are achieved. (For example, if there are 10 Project Tasks with Milestone
Dates then Provider may invoice for the first 10% of the whole upon County's
acknowledgement of the satisfactory completion of Task one. Upon the County's
acknowledgement that the second Task has been satisfactorily completed Provider may
invoice for the next 10%of the whole.)
b. Additional Services. County shall not be responsible for costs related to any services in
addition to the Basic Services performed by Provider unless County requests such
additional services in writing and such additional services are evidenced by a written
amendment to this Agreement.
6. Responsibilities of the County
a. Cooperation and Coordination. The County has designated the (Staff Engineer) to act as
the County's representative with respect to the Project and shall have the authority to
render decisions within guidelines established by the County Manager and/or the County
Board of Commissioners and shall be available during working hours as often as may be
reasonably required to render decisions and to furnish information.
7. Insurance
a. General Requirements. The Provider shall purchase and maintain and shall cause each of
his subcontractors to purchase and maintain, during the period of performance of this
Agreement:
i) Worker's Compensation Insurance for protection from claims under workers' or
workmen's compensation acts;
ii) Comprehensive General Liability Insurance covering claims arising out of or
relating to bodily injury, including bodily injury, sickness, disease or death of any
of the Provider's employees or any other person and to real and personal property
including loss of use resulting thereof;
iii) Comprehensive Automobile Liability Insurance, including hired and non-owned
vehicles, if any, covering personal injury or death, and property damage; and
iv) Professional Liability Insurance, covering personal injury, bodily injury and
property damage and claims arising out of or related to the performance under this
Agreement by the Provider or his agents, Providers and employees.
b. Insurance Rating. The minimum insurance rating for any company insuring the Provider
shall be Best's A. If the Provider does not meet the insurance requirements the County's
Risk Manager must be consulted prior to finalizing this Agreement.
C. Limits of Coverage. Minimum limits of insurance coverage shall be as follows:
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INSURANCE DESCRIPTION MINIMUM REQUIRED COVERAGE
• Worker's Compensation Limits for Coverage A- Statutory State of N.C.
Coverage B - Employers Liability
$500,000 each accident and policy limit and disease each
employee
• Commercial General Liability $1,000,000 Each Occurrence; $2,000,000 Aggregate.
• Automobile Liability Combined Single Limit $500,000
• Professional Liability $1,000,000 per claim and aggregate
d. Additional Insured. All insurance policies (with the exception of Worker's
Compensation and Professional Liability) required under this Agreement shall name the
County as an additional insured party. Evidence of such insurance shall be furnished to
the County, together with evidence that each policy provides the County with not less
than thirty (30) days prior written notice of any cancellation, non-renewal or reduction
of coverage.
8. Indemnity
a. Indemnity. The Provider agrees to defend, indemnify and hold harmless the County from
all loss, liability, claims or expense, including reasonable attorney's fees, arising out of
or related to the Project and arising from bodily injury including death or property
damage to any person or persons to the extent the same are caused in whole or in part by
the negligence or misconduct of the Provider except to the extent same are caused by the
negligence or willful misconduct of the County. It is the intent of this provision to
require the Provider to indemnify the County to the fullest extent permitted under North
Carolina law.
9. Amendments to the Agreement
a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional
compensation or a change in duration of this Agreement shall be made by a written
Amendment to this Agreement executed by the County and the Provider. The Provider
shall proceed to perform the Services required by the Amendment only after receiving a
fully executed Amendment from the County.
10. Termination
a. Termination for Convenience of the County. This Agreement may be terminated without
cause by the County and for its convenience upon seven (7) days prior written notice to
the Provider.
b. Other Termination. The Provider may terminate this Agreement based upon the County's
material breach of this Agreement; provided, the County has not taken all reasonable
actions to remedy the breach. The Provider shall give the County seven (7) days' prior
written notice of its intent to terminate this Agreement for cause.
c. Compensation After Termination.
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i) In the event of termination, the Provider shall be paid that portion of the fees and
expenses that it has earned to the date of termination, less any costs or expenses
incurred or anticipated to be incurred by the County due to errors or omissions of
the Provider.
ii) Should this Agreement be terminated, the Provider shall deliver to the County
within seven (7) days, at no additional cost, all deliverables including any
electronic data or files relating to the Project.
d. Waiver. The payment of any sums by the County under this Agreement or the failure of
the County to require compliance by the Provider with any provisions of this Agreement
or the waiver by the County of any breach of this Agreement shall not constitute a
waiver of any claim for damages by the County for any breach of this Agreement or a
waiver of any other required compliance with this Agreement.
11. Additional Provisions
a. Limitation and Assignment. The County and the Provider each bind themselves, their
successors, assigns and legal representatives to the terms of this Agreement. Neither the
County nor the Provider shall assign or transfer its interest in this Agreement without the
written consent of the other.
b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights
of respective parties hereunder shall be governed by the laws of the State of North
Carolina.
c. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages
with respect to any provision of, or the performance or non-performance of, this
Agreement shall be brought in the General Court of Justice of North Carolina sitting in
Orange County,North Carolina. It is agreed by the parties that no other court shall have
jurisdiction or venue with respect to such suits or actions. The Parties may agree to
nonbinding mediation of any dispute prior to the bringing of such suit or action.
d. Entire Agreement. This Agreement, together with the RFP and its attachments and the
Proposal and its attachments, represents the entire and integrated agreement between the
County and the Provider and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement may be amended only by written
instrument signed by both parties. Modifications may be evidenced by facsimile
signatures.
e. Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable, the remainder of this Agreement shall be valid and binding upon the
Parties.
£ Ownership of Work Product. Should Provider's performance of this Agreement generate
documents, items or things that are specific to this Project such documents, items or
things shall become the property of the County and may be used on any other project
without additional compensation to the Provider. The use of the documents, items or
Revised January 2013 6
things by the County or by any person or entity for any purpose other than the Project as
set forth in this Agreement shall be at the full risk of the County.
g. Non-Appropriation. Provider acknowledges that County is a governmental entity, and
the validity of this Agreement is based upon the availability of public funding under the
authority of its statutory mandate.
In the event that public funds are unavailable and not appropriated for the performance of
County's obligations under this Agreement, then this Agreement shall automatically
expire without penalty to County immediately upon written notice to Provider of the
unavailability and non-appropriation of public funds. It is expressly agreed that County
shall not activate this non-appropriation provision for its convenience or to circumvent
the requirements of this Agreement, but only as an emergency fiscal measure during a
substantial fiscal crisis.
In the event of a change in the County's statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
County's authority to continue its obligations under this Agreement, then this Agreement
shall automatically terminate without penalty to County upon written notice to Provider
of such limitation or change in County's legal authority.
h. Notices. Any notice required by this Agreement shall be in writing and delivered by
certified or registered mail, return receipt requested to the following:
Orange County Provider's Name &Address
Attention: Kevin Lindley Terracon Consultants, Inc.
P.O. Box 8181 5240 Green's Dairy Road
Hillsborough,NC 27278 Raleigh,NC 27616
IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have
hereunder set their hands and seal, all as of the day and year first above written.
ORANGE COUNTY: PROVIDER: Terracon Consultants, Inc.
By: By: --�
Frank ' on, Co ty anager L• D E 0 T N, _ s c, A sS'o <<4 i,,c
Printed Name and Title
This inst ent has been approved as to technical content.
raig Be ict, Planning Department Director
This instrument has been pre-audited in the manner required by the Local Government Budget
and Fiscal Control Act.
Revised January 2013 7
U Al, dw,3
Office of the Finance Director
This instrument has been approved as to form and legal sufficiency.
i
Office of e County Attorney
Revised January 2013 8
lrerracon
November 19, 2012
Hobbs, Upchurch, &Associates, P.A.
300 SW Broad Street
Southern Pines, North Carolina 28387
Attn: Mr. Mark Lacy
Re: Proposal for Geotechnical Engineering Services
Buckhorn-Mebane EDD Phase 2
Water and Sewer Improvements
Mebane, Orange County, North Carolina
Terracon Proposal No. P70120505
Dear Mr. Lacy:
Terracon Consultants, Inc. (Terracon) appreciates the opportunity to submit this proposal to
provide geotechnical engineering services for the proposed water and sewer line improvements
in Mebane, North Carolina. The purpose of our services will be to evaluate the geotechnical
conditions at the pipe crossing locations and to develop geotechnical parameters, which will
assist in the design and construction of the crossings. This proposal outlines our understanding
of the project and scope of services and provides a lump sum fee for our services.
1.0 PROJECT INFORMATION
The project information tabulated below is based on site plans provided by Hobbs, Upchurch &
Associates and aerial views of the site. No site visit was performed prior to preparing this
proposal.
Orange County will be installing water and sewer lines to serve an Economic Development
District located along the 1-40/85 corridor east of the City of Mebane. The project includes
multiple directional bore and horizontal bore and jack installations. The county would like to
determine if rock, groundwater, or other geotechnical issues are present at any of these
locations before proceeding with construction.
Should any of the above information or assumptions be inconsistent with the planned construction,
please let us know so that we may make any necessary modifications to this proposal.
Terracon Consultants, Inc. 5240 Green's Dairy Road Raleigh, NC 27616
P [919]873 2211 F [919]873 9555 terracon.com
meow
Proposal for Geotechnical Engineering Services Irerracon
Proposed Water/Sewer Improvements a Mebane, North Carolina
November 19,2012 a Terracon Proposal No. P70120505
2.0 SCOPE OF SERVICES
The primary objective of our geotechnical services will be the identifying the presence of
bedrock and groundwater at the proposed directional bore and/or bore and jack locations. At
your direction, we propose to perform Standard Penetration Test(SPT) Borings to a depth of 10
feet (bore and jack locations) to 20 feet (directional bore locations) below the proposed pipe
invert elevation at the indicated crossing locations. We understand that the bore and jack
locations may not be included in the scope of work and that separate pricing is requested for the
performing the horizontal bore locations only. The proposed boring locations and corresponding
depths are indicated below:
BORE AND JACK BORING DEPTH (ft)
LOCATIONS
W2.2A 20
W2.2B 20
W2.3A 20
W2.3B 20
W2.56* 30
W2.5C* 30
S 1.2A 20
S 1.2B 20
S1.2C 20
S1.2D 20
S1.4A 20
S1.4B 20
S3.3A 25
S3.3B 25
S3.4A 20
S3.4B 20
S3.5A 20
S3.5B 20
S3.7A 20
S3.7B 20
HORIZONTAL BORE BORING DEPTH (ft)
LOCATIONS
W2.5A 30
W2.5B* 30
W2.5C* 30
W2.6A 35
W2.7A 25
W2.76 25
*indicates overlap locations for the bore/jack and horizontal drilling locations
Responsive a Resourceful a Reliable 2
Proposal for Geotechnical Engineering Services Irerracon
Proposed Water/Sewer Improvements a Mebane, North Carolina
November 19,2012 a Terracon Proposal No. P70120505
A written log will be kept of the- SPT testing and the soil strata observed in each boring.
Representative portions of the soil samples will be retained in sealed, plastic bags and
transported to our laboratory for further testing, if appropriate, and for storage.
Based on review of aerials, it appears that many of the boring locations will be accessible to our
ATV drilling equipment without the need for clearing or difficult maneuvering. However, some
locations will be require chainsaw clearing if clearing cannot be provided ahead of time by the
project team. If clearing cannot be provided ahead of time we suggest a budget of$2,000
be provided to cover the costs of hand clearing to the boring locations. Due to the
distance between locations, transfer of the drill rig by motor carrie will be required to access the
various boring locations.
Laboratory Testing — The samples will be tested in our geotechnical laboratory to determine
physical engineering characteristics. Testing will be performed under the direction of a
geotechnical engineer and may include visual classification, moisture content, Atterberg limits,
and grain size analysis, as appropriate.
Engineering Analysis and Report — The results of our field and laboratory programs will be
evaluated by a professional geotechnical engineer licensed in the State of North Carolina.
Based on the results of our evaluation, an engineering report will be prepared that details the
results of the testing performed, provides logs of the borings, and a diagram of the site/boring
layout. The report will include the following:
N Computer generated boring logs with soil stratification based on visual soil classification.
N Summarized laboratory data.
N Groundwater levels observed.
a Boring location plan.
■ Subsurface exploration procedures.
■ Encountered soil or bedrock conditions.
a Subgrade preparation/earthwork recommendations for trenching/boring operations.
Conditions/Items to be provided by Client: Items to be provided by the client include the right of
entry to conduct the exploration. We also request information concerning awareness and/or
location of any private subsurface utilities existing in the area. We will contact NC One-Call for
location of utilities in public easements along roadways.
Schedule—We anticipate that the fieldwork will take 7 to 8 days to complete. We estimate the
final geotechnical report can be completed within about two weeks after the field services are
completed. In situations where information is needed prior to submittal of our report, we can
provide verbal information or recommendations for specific project requirements after we have
completed our field and laboratory programs.
Responsive a Resourceful a Reliable 3
Proposal for Geotechnical Engineering Services Irerracon
Proposed Water/Sewer Improvements■ Mebane, North Carolina
November 19,2012 a Terracon Proposal No. P70120505
3.0 COMPENSATION
For the scope of geotechnical services outlined in this proposal that includes site visit,
coordination, borings, laboratory testing, and an engineering report, we propose the following
fees:
Service Lump Sum Fee
Horizontal Bore Locations Only-Includes Field $5,600.00
Testing and Report
Horizontal Bore Locations and Bore/Jack $13,500.00
Locations Combined-Includes Field Testing and
Report
Clearing Costs-Estimated Budget $2,000.00
Additional services will be charged in accordance with our current fee schedule. If we are
authorized to proceed and the client subsequently postpones or cancels the work, we will
invoice the client for the costs of project set up and mobilization incurred prior to notice of
cancellation.
Should it be necessary to expand our services beyond those outlined in this proposal, we will
notify you, then send a supplemental proposal stating the additional services and fee. We will
not proceed without your authorization, as evidenced by your signature on the Agreement form.
4.0 AUTHORIZATION
This proposal may be accepted by executing the attached agreement for services and returning
one copy along with this proposal to Terracon. We appreciate the opportunity to provide this
proposal and look forward to the opportunity of working with you.
Sincerely,
Terracon Consultants, Inc.
, .
Raymond L. "Levi" Denton, II, P.E. Barne' C. Hale, P.E.
Geotechnical Services Manager Senior Geotechnical Engineer
Attachments: Agreement for Services.
Responsive a Resourceful■Reliable 4
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Reference Number.P70120505
AGREEMENT FOR SERVICES
This AGREEMENT is between Hobbs.Upchruch.&Associates,P.A.("Client")end Terracon Consultants,Inc.("Consultant')for Services to be provided by
Consultant for Client on the Buckhom-Mebane EDD Phase 2 project("Project"), as described in the Project Information section of Consultant's Proposal
dated 11-19-1 ("Proposal") unless the Project is otherwise described In Exhibit A to this Agreement(which section or Exhibit is incorporated into this
Agreement).
11. Scope of Services.The scope of Consultant's services is described in the Scope of Services section of the Proposal("Services"),unless Services
are otherwise described in Exhibit B to this Agreement(which section or exhibit is incorporated into this Agreement).Portions of the Services may be
subcontracted. Consultant's Services do not include the investigation or detection of, nor do recommendations In Consultant's reports address
the presence or prevention of biological pollutants(e.g.,mold,fungi,bacteria,viruses,or their byproducts)or occupant safety issues, such as
vulnerability to natural disasters, terrorism, or violence. If Services include purchase of software, Client will execute a separate software license
agreement.Consultant's findings,opinions,and recommendations are based solely upon data and information obtained by and furnished to Consultant
at the time of the Services.
2. Acceptance/ Termination. Client agrees that execution of this Agreement is a material element of the consideration Consultant requires to
execute the Services, and if Services are initiated by Consultant prior to execution of this Agreement as an accommodation for Client at Client's
request, both parties shalt consider that commencement of Services constitutes formal acceptance of all terms and conditions of this Agreement.
Additional terms and conditions may be added or changed only by written amendment to this Agreement signed by both parties. in the event Client
uses a purchase order or other form to administer this Agreement,the use of such form shall be for convenience purposes only and any additional or
conflicting terms it contains are stricken.This Agreement shall not be assigned by either party without prior written consent of the other party. Either
party may terminate this Agreement or the Services upon written notice to the other. in such case,Consultant shall be paid costs incurred and fees
earned to the date of termination plus reasonable costs of closing the project.
3. Change Orders.Client may request changes to the scope of Services by altering or adding to the Services to be performed.If Client so requests,
Consultant will return to Client a statement(or supplemental proposal) of the change setting forth an adjustment to the Services and fees for the
requested changes. Following Client's review,Client shall provide written acceptance.If Client does not follow these procedures, but instead directs,
authorizes,or permits Consultant to perform changed or additional work,the Services are changed accordingly and Consultant will be paid for this work
according to the fees stated or its current fee schedule. if project conditions change materially from those observed at the site or described to
Consultant at the time of proposal,Consultant is entitled to a change order equitably adjusting its Services and fee.
4. Compensation and Terms of Payment.Client shall pay compensation for the Services performed at the fees stated In the Compensation
section of the Proposal unless fees are otherwise stated in Exhibit C to this Agreement(which section or Exhibit is incorporated into this Agreement).if
not stated in either,fees will be according to Consultant's current fee schedule.Fee schedules are valid for the calendar year in which they are issued.
Fees do not Include sales tax. Client will pay applicable sales tax as required by law.Consultant may Invoice Client at least monthly and payment is
due upon receipt of invoice.Client shall notify Consultant in writing,at the address below,within 15 days of the date of the invoice if Client objects to
any portion of the charges on the invoice, and shall promptly pay the undisputed portion. Client shall pay a finance fee of 1.5% per month, but not
exceeding the maximum rate allowed by Jaw,for all unpaid amounts 30 days or older.Client agrees to pay all collection-related costs that Consultant
Incurs, including attorney fees. Consultant may suspend Services for lack of timely payment. It is the responsibility of Client to determine whether
federal, state, or local prevailing wage requirements apply and to notify Consultant if prevailing wages apply. If it is later determined that prevailing
wages apply, and Consultant was not previously notified by Client, Client agrees to pay the prevailing wage from that point forward, as well as a
retroactive payment adjustment to bring previously paid amounts in line with prevailing wages. Client also agrees to defend, indemnify, and hold
harmless Consultant from any alleged violations made by any governmental agency regulating prevailing wage activity for failing to pay prevailing
wages,including the payment of any fines or penalties.
S. Third Party Reliance.This Agreement and the Services provided are for Consultant and Client's sole benefit and exclusive use with no third party
beneficiaries Intended. Reliance upon the Services and any work product is limited to Client,and Is not intended for third parties.For a limited time
period not to exceed three months from the date of the report,Consultant will Issue additional reports to others agreed upon with Client,however Client
understands that such reliance will not be granted until those parties sign and return Consultant's reliance agreement and Consultant receives the
agreed-upon reliance fee.
6. LIMITATION OF LIABILITY. CLIENT AND CONSULTANT HAVE EVALUATED THE RISKS AND REWARDS ASSOCIATED WITH THIS
PROJECT, INCLUDING CONSULTANT'S FEE RELATIVE TO THE RISKS ASSUMED, AND AGREE TO ALLOCATE CERTAIN OF THE
ASSOCIATED RISKS. TO THE FULLEST EXTENT PERMITTED BY LAW,THE TOTAL AGGREGATE LIABILITY OF CONSULTANT(AND ITS
RELATED CORPORATIONS AND EMPLOYEES) TO CLIENT AND THIRD PARTIES GRANTED RELIANCE IS LIMITED TO
THE GREATER OF$50,000 OR CONSULTANT'S FEE, FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES
(INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF CONSULTANT'S SERVICES OR THIS AGREEMENT. UPON WRITTEN
REQUEST FROM CLIENT,CONSULTANT MAY NEGOTIATE A HIGHER LIMITATION FOR ADDITIONAL CONSIDERATION. THiS LIMITATION
SHALL APPLY REGARDLESS OF AVAILABLE PROFESSIONAL LIABILITY INSURANCE COVERAGE, CAUSE(S) OR THE THEORY OF
LIABILITY, INCLUDING NEGLIGENCE, INDEMNITY, OR OTHER RECOVERY. THIS LIMITATION SHALL NOT APPLY TO THE EXTENT THE
DAMAGE IS PAID UNDER CONSULTANT'S COMMERCIAL GENERAL LIABILITY POLICY.
7. Indemnity/Statute of Limitations.Consultant and Client shall indemnify and hold harmless the other and their respective employees from and
against legal liability for claims,losses,damages,and expenses to the extent such claims,losses,damages,or expenses are legally determined to be
caused by their negligent acts,errors,or omissions.in the event such claims,losses,damages,or expenses are legally determined to be caused by the
joint or concurrent negligence of Consultant and Client,they shall be borne by each party in proportion to its own negligence under comparative fault
principles. Neither party shall have a duty to defend the other party,and no duty to defend is hereby created by this indemnity provision and such duty
is explicitly waived under this Agreement. Causes of action arising out of Consultant's services or this Agreement regardless of cause(s)or the theory
of liability,including negligence,indemnity or other recovery shall be deemed to have accrued and the applicable statute of limitations shall commence
to run not later than the date of Consultant's substantial completion of services on the project.
S. Warranty. Consultant will perform the Services In a manner consistent with that level of care and skill ordinarily exercised by members of the
profession currently practicing under similar conditions in the same locale. EXCEPT FOR THE STANDARD OF CARE STATED ABOVE,
CONSULTANT MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES AND
CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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- Irerracan
9. Insurance.Consultant represents that it now carries,and will continue to rarry'.(i)workers'compensation Insurance in accordance with the laws of
the states having jurisdiction over Consultants employees Who are engaged in the Services,. and employees liability insurance. ($1,000,000): (li)
commercial general liability Insurance($1,000,000 occ/X2,000,000 agg);(iii).automobile liability insurance($1,000,000 131 and P:D,combined single
limit), and 6)professional liability Insurance($1,000X(1-claim lagg).Certificates of Insurance will be provided upon request.Client and Consultant
shall waive subrogation against the other party on all general liability and property coverage.
10. CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE DABI-15-TO THE OTHER FOR LOSS OF PROFITS OR REVENUIE; LOSS OF
USE OR OPPORTUNITY;LOSS OF GOODWILL;COST OF SUBSTITUTE FACILITIES,GOODS,OR SERVICES,# COST OF CAPITAL;OR FOR
ANY SPECIAL,CONSEQUENTIAL,INDIRECT,PUNITIVE,OR EXEMPLARY DAMAGES.
11. Dispute Resolution.Client shall not be entitled to assert a Claim against Consultant based on any theory of professional negligence unless and
until Client has obtained the written opinion from a registered,Independent,and reputable engineer,architect,or geologist that Consultant has violated
the standard of care applicable to Consultarifs performance of the Services. Client shall provide this opinion to Consultant and the parties shall
endeavor to resolve the dispute within.30 days,after which Client may pursue its remedies at law.This Agreement shall be governed by and construed
according to Kansas law.
12. Subsurface Explorations,Subsurface conditions throughout the site may vary from those depicted on los of discrete bdrings,test pits,or other
exploratory services.Client understands Consultant's.layout of boring and test locations Is approximate and that Consultant may deviate a reasonable
distance from those locations. Consultant will take reasonable precautions to reduce damage to the site when performing Services; however, Client
accepts that.Invasive services such as drilling or sampling may damage or alter the site,.Site restoration Is not provided unless specifically included In
the Services.
13. Testing and Observa'tions.Client understands that testing and observation are discrete sampling procedures-,and.that such procedures indicate
conditions only at the depths,locations,and times the he procedures were'performed.Consultant will provide test results and opinions based on tests and
field observations only for the work tested..Client understands that testing and observation are not continuous or exhaustive,and are conducted to
reduce-not eliminate-project risk.Client agrees to the level or amount of testing performed and the associated risk. Client Is.responsible(even If
delegated to contractor)for requesting services,and notifying and scheduling Consultant so Consultant can,pqrfprm these Services.Consultant is not
responsible for damages caused by services.not performed due to a failure to request or schedule Consultants services. Consultant shall not be
responsible for the quality and completeness of Client's contractor's work or their adherence to the project documents,and Consultants performance of
testing and observation services shall not relieve Clients contractor in any Way from Its responsibility for defects discovered In its work, or create I
Warranty or guarantee.Consultant will not supervise or direct the work performed by Client's contractor or its subcontractors and is not responsible for
their means and methods.
14. Sample Disposition,Affected Materials,and Indemnify.Samples are consumed in testing or disposed of upon completion of tests(unless
stated otherwise in the Services).Client shall furnish or cause to be furnished to Consultant all documents and information known or available-to Client
that relate to the Identify,location, quantity,nature,-or characteristic of any hazardous waste,toxic,radioactive,or tontaelhated materials{"Affected
Matedals'l at or near the site, and shall immediately transmit new, updated' or revised Information as it becomes available. Client agrees that
Consultant is not responsible for the disposition of Affected Material,unless specifically provided in the Services, and that Client is responsible for
directing,such disposition. In the event that test samples obtained during the oerforrriance of Services (I)contain substances hazardous to health,
safety, or the environment, or(11) equIpMqnt used during the Services cannot reasonably be decontaminated, Client shall sign documentation (if
necessary)required to ensure the equipment and/or samples are transported aril disposed of properly,and agrees to pay Consultant the fair market
value of this equipment and reasonable disposal costs.In no event shall Consultant be required to sign a hazardous waste manifest or take title to any
Affected Materials.Client shall have the obligation to make all spill or release notifications to appropriate.governmental agencies,The Client agrees that
Consultant neither created nor contributed to the creation or existence of any Affeci6d Materials conditions at the site.Accordingly,Client-waives any claim
against Consultant.and agrees to indqMnIfy and save Consultant„Its agents,.employees,and related companies hannioss from any claim,liability or defense
i jury or loss sustained by any party from such exposures allegedly arising out of Consultants.non-negligent
cost,Including attorney and expert fees,for fif
performance of services hereunder,or for any claims against Consultant as a generator,disposer,or arranger of Affected Materials under federal,state,or
local jaw or ordinance.
15. Ownership of Documents.Work product,such as reports, logs, data, notes,or calculations, prepared by.Consultant shall remain Consultant's
property. Proprietary concepts,systems,and Ideas developed during performance of the Services shelf remain the sole property of Consultant.Files
shall be maintained in general accordance with Consultants document retention policies and practices.
16. Utillitlos. Client shall provide the location and/or arrange for the Marking of private utilities and subterranean structures. Consultant shall take
reasonable precautions to avoid damage or Injury to subterranean structures or utilities, Consultant shall not be responsible for damage to
subterranean structures or utilities that are not called to COnsUltarifs attention, are not.ddrrdctly marked, including by a utility locate-service, or are
Incorrectly shown on the plans furnished to Consultant.
17. Site Access and Safety.Client shall secure all necessary site related approvals,permits, licenses, and consents necessary to commence and
complete the Services and will execute any necessery'sile access agreement.'Consultant Will be responsible for supervision*and site safety Measures
for its own employees,but shelt not be responsible for the supervision or health and safety precautions.for any other parties,Including Client,Client's
contractors,_spbcontrgOgrs,or other parties present at.the site,
Consult n gonsultants,Inc. Client. Hobbs,Upchurch,&Associates,P.A.
By., Date: By, Date.
114.L.—(Lekli)-Denton 11,PH
Name/Title: NpmoMtlet
Sr.Associate
Address: 5240 Groan's PaIry Read Addre$.% 300 SW broad:street
Raleigh,North Carolina 27016 Southern Pines,North Carolina
Phone, 910.873.2211 Fax: 919.873.9555 Phone., .910-692,5616 Fax
Reference Number:P70120505
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