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HomeMy WebLinkAboutContract No. 2015-2619AMERICAN ENGINEERING TESTING, INC. October 31, 2014 Mr. Kevin R. Hansen, P.E. Public Works Director /City Engineer City of Columbia Heights Public Works Department 637 38th Avenue NE Columbia Heights, MN 55421 -3806 RE: Proposal for Geotechnical and Environmental Services Four Sites Columbia Heights, Minnesota Dear Mr. Hansen: 2015 -2619 CONSULTANTS • ENVIRONMENTAL • GEOTECHNICAL • MATERIALS • FORENSICS We are pleased to submit a proposal for this project. In this proposal, we present a description of our understanding of the project, an outline of the scope of services we are to provide, and a fee schedule and estimate of charges for these services. It is our understanding that a combination of geotechnical and environmental information is needed at four sites in Columbia Heights. These include a pond area near Silver Lake, 47th Avenue & Heights Drive sanitary work, 4704 Central Avenue property, and road settlement near 46th Avenue west of Parkview Lane. Following is a description of our proposed scope of services for each of the four sites. SILVER LAKE BOAT LANDING PONDS Fieldwork • Clear underground public utilities through the Gopher State One Call System. Note that we have not included a price for a private utility locator. If a private locator is required we would pass along their charges in addition to our fees. • Drill a total of three standard penetration tests (SPT) borings on the site. We plan to drill two of the borings to 15 feet below grade and one boring to a depth of 20 feet below grade. The total lineal drilling footage would be 50 feet. • Collect four sediment samples from the nearby pond, collected from near locations provided to us by your proposed boring diagram. • Measure the boring locations the ground surface elevation at the borings, referenced to a convenient benchmark on or near the site. • We assume that the borings will be accessible with one of our truck - mounted drill rigs. 550 Cleveland Avenue North I St. Paul, MN 55114 A, Phone 651-659-90011 Toll Free 800- 972 -6364 1 Fax 651- 659 -1379 1 www.amengtest.com JAA/EEO This document shall not be reproduced, except in full, without written approval from American Engineering Testing. Inc. Columbia Heights Four Sites October 31, 2014 Page 2 of 5 Laboratory • Sediment samples are to be submitted for laboratory analysis including DRO w/ silica gel clean up, GRO, PAHs, Arsenic and Copper. Report • The dredge spoil report will include the boring logs, laboratory test results and a review of possible uses of the sediments for future development. 47TH AVENUE & HEIGHTS DRIVE You have requested one boring to assist in your planning for future sanitary sewer work in this area. You have not requested geotechnical recommendations or environmental sampling for this site. Based on your request for proposal, we are planning to provide the following work scope. Fieldwork • Drill one standard penetration test boring on the site to a depth of 20 feet. • Clear underground public utilities through the Gopher State One Call System. • Measure the boring location and the ground surface elevation, referenced to a convenient benchmark near the boring. Laboratory • Our laboratory testing will consist of visual classification of the soil samples according to the USCS Classification System along with moisture content testing of any cohesive samples. If additional laboratory testing is required, we will contact you before proceeding. Report • The report will include the boring log and comments on the soil and ground water conditions encountered. CENTRAL AVENUE — N or 1u GoN7-RAGT You hav uested four borings on a vacant lot to assist in your planning for future utility work and for assessing roperty for future use. You requested field screening environmental testing at each of the borings. e borings need to be drilled between November 5, 2014 and November 14, 2014. Based on ur request for proposal, we are planning to provide the following work scope. Fieldwork • Drill four standard penetration test borings, each to a de of 15 feet below grade. • Drill the borings under environmental protocol. We will ste ean the drill rig, augers, and samplers before mobilizing to the site and wash the sampler ' Alconox solution between uses. We will have personnel on -site to screen soil samples from e borings. Columbia Heights Four Sites October 31, 2014 Page 3 of 5 Clear underground public utilities through the Gopher State One Call System. sure the boring locations and the ground surface elevation at the borings, referenced to a convenient benchmark on or near the site. Laboratory Our laboratory testing consist of visual classification of the soil samples according to the USCS Classification S m along with moisture content testing of any cohesive samples. If additional laborato testing is required, we will contact you before proceeding. If field screening warrants submitting soils les for laboratory analysis, per the city's request we will submit soil samples to an acc ited laboratory for VOCs, PAHs, 8 RDRA metals, and DRO with silica gel cleanup met mss. The estimated additional cost per soil sample submitted is estimated to be $254.00. Report The report will include logs of the test borings, the laboratory test results, eview of the engineering properties of the on -site soils, and comments on the suitability o e on -site soils for utility support and for future development. 46TH AVENUE WEST OF PARKVIEW LANE You have requested one boring to assist in determining the cause of settlement of the roadway in this area. You have not requested environmental sampling for this site. In our opinion, two borin,s (at a minimum) should be drilled at this site, with one located in the hump in the road and one in a low area. We are planning to provide the following work scope. Fieldwork • Drill two standard penetration test borings on the site to a depth of 20 feet. • Clear underground public utilities through the Gopher State One Call System. • Measure the boring location and the ground surface elevation, referenced to a convenient benchmark near the boring. Laboratory • Our laboratory testing will consist of visual classification of the soil samples according to the USCS Classification System along with moisture content testing of any cohesive samples. If additional laboratory testing is required, we will contact you before proceeding. Report • The report will include the boring logs and recommendations for grading procedures to reduce future settlement. Columbia Heights Four Sites October 31, 2014 Page 4of5 FEES The scope of work defined in this proposal will be performed on a time and materials basis according to our current schedule of fees. In the event the scope of our work needs to be revised due to unanticipated conditions, we will review such adjustments and the associated fees with you, and receive your approval before proceeding. Following are our not -to- exceed estimated fees for each of the four sites. • Silver Lake Boat Landing Ponds: Mobilization/demobilization, utility locate, drilling and sampling three borings, collecting four sediment $ 6,250 samples, laboratory testing, and preparation of the report. • 47th Avenue & Heights Drive: Mobilization/demobilization, utility locate, drilling and sampling one boring to 20 feet, routine laboratory testing, and $ 1,400 preparation of the report. • 4704—Central Avenue: Mobilization/demobilization, utility locate, drilling and samp in borings to 15 feet, vironmental field screening, MV+ in routine laboratory testing, aration o��e port. Not e that if samples Con - rcLc,+ are submitted to the laboratory o mental testing, additional charges would apply. • 46th Avenue West of Parkview Lane: Mobilization/demobilization, utility $ 3,000 locate, drilling and sampling two borings to 20 feet, routine laboratory testing, and preparation of the report. In the event the scope of our work needs to be revised due to unanticipated conditions, we will review such adjustments and the associated fees with you, and receive your approval before proceeding. TERMS /CONDITIONS All AET Services are provided subject to the Terms and Conditions set forth in the enclosed Service Agreement —Terms and Conditions, which, upon acceptance of this proposal, are binding upon you as the Client requesting Services, and your successors, assignees, joint venturers and third -party beneficiaries. Please be advised that additional insured status is granted upon acceptance of the proposal. Columbia Heights Four Sites October 31, 2014 Page 5 of 4 ACCEPTANCE AET requests written acceptance of this proposal in the Proposal Acceptance box below, but the following actions shall constitute your acceptance of this proposal together with the Terms and Conditions and Amendments: 1) issuing an authorizing purchase order for any of the Services described above, 2) authorizing AET's presence on site or 3) written or electronic notification for AET to proceed with any of the Services described in this proposal. Please indicate your acceptance of this proposal by signing below and returning a copy to us. When you accept this proposal, you represent that you are authorized to accept on behalf of the Client. AET appreciates the opportunity to provide this service for you and looks forward to working with you on this project. If you have any questions or need addition information, please contact US. Sincerely, American Engineering Testing, Inc. Jay P. Brekke PE Senior Engineer Phone 651- 789 -4645 jbrekke @amengtest.com PROPOSAL ACCEPTANCE BY: Signature: Printed Name: watt FPh s t Company Name: City of Columbia Heights Date: T � Attachments: 2014 Geotechnical Fee Schedule Service Agreement Z4 Allan A. Kestler Environmental Engineer II Phone 651- 999 -1391 akestlerAamen est.com I. Personnel Hourly Rates 6. Slope Stability (ReSSA) A. Word Processing Specialist 63.00/hr. B. Engr. or Env. Technician I 69.00/hr. C. Engr. or Env. Technician II 81.00/hr. D. Drill Technician/Geo Lab Technician 91.00/hr. E. Senior Engineering Technician 97.00/hr. F. Engineering Assistant 107.00/hr. G. Engineer I/Geologist I 115.00/hr. H. Engineer II/Geologist II/Sr. Engr, Assistant 131.00/hr. I. Senior Engineer /Geologist 147.00/hr. J. Principal Engineer /Geologist 176.00/hr. H. Vehicle Milene 6. Slope Stability (ReSSA) A. Personal Automobile/Truck 0.75 /mile B. Auxiliary Truck Vehicle 1.00 /mile C. Truck with Coring, FWD, or GPR Equipment 1.10 /mile D. Truck with Warning Sign/Crash Trailer 1.20 /mile E. 1 -ton Truck with Drill Rig 1.20 /mile F. 1' /z to 2'h -ton Truck with Drill Rig 1.35 /mile G. CPT Truck Rig (20 -ton push capacity) 1.60 /mile H. Tractor/Lowboy Trailer 1.80 /mile III. Eauipment Rental A. Drill Rig Rental b) HQ 1. Rotary Drill on 1 -ton Truck 68.00/hr. 2. Rotary Drill on 1% to 2'/z -ton Truck 78.00/hr. hourly 3. Rotary Drill on All- Terrain Vehicle 108.00 /hr. 55.00 /test 4. Portable, Non -rotary Rig 78.00/hr. B. Auxiliary/Specialty Vehicle Rental 1. Plasticity Index 105.00 /test 1. Auxiliary Truck Vehicle 17.00/hr. 90.00 /test 2. Truck with Warning Sign/Crash Trailer 27.50/hr. 97.00 /test 3. Truck with Coring Equipment 43.00/hr. C. Cone (CPT) Rig/Equipment Rental Thermal Resistivity w/Proctor (ASTM:D5334) 1. CPT Rig (Truck or ATV) 140.00/hr, 2. Electronic Cone w /Computer 40.00/hr. G. 3. Soil Sampler 3.50/hr. H. 4. Water Sampler 20.00/hr. D. Miscellaneous Equipment Rental 1. With P -e curves only 1. Field Vane Shear 315.00 /day 2. With P -e curves, time curves 2. Field Electrical Resistivity 230.00 /day Unconfined Compression (incl. we /density) 3. Field Seismic Refraction (ReMi) 400.00 /day Hand Penetrometer 4. Inclinometer Reading Equipment 325.00 /day Organic Content of Soil 5. Pneumatic Transducer Reading 165.00 /day Topsoil Borrow Test (Mn/DOT 3877) 6. Bore Hole Permeability M. R -value (Hveem Stabilometer) a. Open End Casing Method 133.00 /day California Bearing Ratio b. HQ Wireline Packer 325.00 /day 1. Granular 7. Borehole Pressuremeter 67.00/hr. 2. Cohesive 8. Iowa Borehole Shear Tester 330.00 /day Proctor Tests (Methods A or B) 9. Double Ring Infiltrometer 255.00 /day 1. Standard 10. 'Photoionization Detector (PID) 115.00 /day 2. Modified 11. GPS Mapping System 15.00/hr. redox potential (resistivity not included). 12. Pile Driving Analyzer (PDA) 730.00 /day 13, Calibrated SPT Rod 195.00 /day 14. Portable Concrete Coring Equipment 43.00/hr. 15. Pavement Testing (includes truck) a. Falling Weight Deflectometer 135.00/hr. b. Ground Penetrating Radar (GPR) 75.00/hr. E. Geotechnical Software Rental 1. Geo Studio Finite Element 55.00/hr. 2. CAPWAP 30.00/hr. 3. AutoCAD or Microstation 25.00/hr. 4. Wave Equation (WEAP) 15.00/hr. 5. LPILE or GROUP 15.00/hr. 2014 GEOTECHNICAL FEE SCHEDULE V. Exnenses A. Direct Project Expenses: includes out -of- Cost + 15% town per diem; plowing & towing; special materials & supplies; special travel, transportation & freight; Subcontracted services, and miscellaneous costs B. Equipment Replacement (when abandonment Cost is more feasible than recovery) C. Equipment Recovery (when required by Cost + 15% regulatory agencies or project specifications) The rates presented are portal -to -portal with vehicle mileage, expenses and equipment rentals being additional. Overtime for personnel charged at above cost plus 25% for over 8 hours per day or Saturday; and at above cost plus 50% for Sundays or Holidays. Hazardous work charged at an additional 25 %. Night time shift work will include a premium charge of $30.00 per person per shift. 01DPM021.14 (01/14) AMERICAN ENGINEERING TESTING, INC. 6. Slope Stability (ReSSA) 15.00/hr. 7, Stabilized Earth Slopes & Walls 15.00/hr. 8. Settlement (FoSSA) 15.00/hr. 9. SHAFT 15.00/hr. F. Bit Wear- Rock Coring 1. Diamond Bit - Sedimentary Rock a) B, NQ 10.00 /foot b) HQ 12.00 /foot 2. Diamond Bit - Metamorphic & Igneous a) B, NQ 17.00 /foot b) HQ 20.00 /foot IV. Laboratory Tests of Soil A. Water Content hourly B. Dry Density (includes water content) 55.00 /test C. Atterberg Limits (ASTM:D4318) 1. Plasticity Index 105.00 /test 2. Liquid Limit or Plastic Limit Separately 90.00 /test D. Sieve Analysis (includes 4200) 97.00 /test E. Hydrometer Analysis (sieve included) 190.00 /test F. Thermal Resistivity w/Proctor (ASTM:D5334) 1. As Received and Oven Dried (2 pts) 970.00 /test 2. Dry Out Curve (4 pts) 1200.00 /test G. Electrical Resistivity (ASTM:G57 -Soil Box) 94.00 /test H. Corrosion/Concrete Attack Series* 220.00 /series I. Consolidation (up to 32 tsf) 1. With P -e curves only 460.00 /test 2. With P -e curves, time curves 575.00 /test I. Unconfined Compression (incl. we /density) 90.00 /test J. Hand Penetrometer 10.00 /test K. Organic Content of Soil 60.00 /test L. Topsoil Borrow Test (Mn/DOT 3877) 280.00 /test M. R -value (Hveem Stabilometer) 380.00 /test N. California Bearing Ratio 1. Granular 595.00 /test 2. Cohesive 670.00 /test 0. Proctor Tests (Methods A or B) 1. Standard 125.00 /test 2. Modified 135.00 /test *includes pH, choride ion, soluble sulfates, sulfides, redox potential (resistivity not included). V. Exnenses A. Direct Project Expenses: includes out -of- Cost + 15% town per diem; plowing & towing; special materials & supplies; special travel, transportation & freight; Subcontracted services, and miscellaneous costs B. Equipment Replacement (when abandonment Cost is more feasible than recovery) C. Equipment Recovery (when required by Cost + 15% regulatory agencies or project specifications) The rates presented are portal -to -portal with vehicle mileage, expenses and equipment rentals being additional. Overtime for personnel charged at above cost plus 25% for over 8 hours per day or Saturday; and at above cost plus 50% for Sundays or Holidays. Hazardous work charged at an additional 25 %. Night time shift work will include a premium charge of $30.00 per person per shift. 01DPM021.14 (01/14) AMERICAN ENGINEERING TESTING, INC. ENVIRONMENTAL / GEOTECHNICAL SERVICE AGREEMENT - TERMS AND CONDITIONS Page 1 of 3 SECTION 1- RESPONSIBILITIES 1.1- This Service Agreement — Terms and Conditions ( "terms and conditions ") is applicable to all Services provided by American Engineering Testing, Inc. (AET). As used herein "Services" refers to the scope of services described in the proposal submitted by AET to Client. The proposal, these terms and conditions and any appendices attached hereto shall comprise the Agreement between AET and Client for Services described in the proposal and are binding upon the Client, its successors, assignees, joint ventures and third -party beneficiaries. AET requests written acceptance of the Agreement, but the following actions shall also constitute Client's acceptance of the Agreement: 1) Issuing an authorizing purchase order for any of the Services, 2) authorizing AET's presence on site, or 3) written or electronic notification for AET to proceed with any of the Services. 1.2 — Prior to AET performing Services, Client will provide AET with all information that may affect the cost, progress, safety and performance of the Services. This includes, but is not limited to, information on proposed and existing construction, all pertinent sections of contracts between Client and property owner, site safety plans or other documents which may control or affect AET's Services. If new information becomes available during AET's Services, Client will provide such information to AET in a timely manner. Failure of Client to timely notify AET of changes to the project including, but not limited to, location, elevation, loading, or configuration of the structure or improvement will constitute a release of any liability or indemnity obligations of AET for loss or damages related to such changes, Client will provide a representative for timely answers to project - related questions by AET. 1.3 - AET is responsible only for performance of the Services. AET will not be held responsible for work or omissions by Client or any other party working on the project. The Services do not include construction management, general contracting or surveying services. AET will not be responsible for directing or supervising the work of other parties, unless specifically authorized and agreed to in writing. 1.4 — Client acknowledges the limitations inherent in sampling to characterize buried subsurface conditions. Variations in soil conditions occur between and beyond sampled /tested locations. The passage of time, natural occurrences and direct or indirect human activities at the site or distant from it may alter the actual conditions. Client assumes all risks associated with such variations in soil and subsurface conditions. 1.5 - AET is not responsible for interpretations or modifications of AET's recommendations by other persons. 1.6 - Should changed conditions be alleged, Client agrees to notify AET before evidence of alleged change is no longer accessible for evaluation. 1.7 — Pricing in the proposal assumes use of these terms and conditions. AET reserves the right to amend pricing if Client requests modifications to the Agreement or use of Client's alternate contract format. Any contract amendments made after Client has authorized the Services shall be applicable only to Services performed after the effective date of such amendment. The proposal and these terms and conditions, including terms of payment, shall apply to all Services performed prior to the effective date of such amendment. 1.8 - The AET proposal accompanying these terms and conditions is valid for sixty (60) days after the proposal issuance date to the Client. Any attempt to authorize Services after the expiration date is subject to AET's right to revise the proposal as necessary. SECTION 2 - SITE ACCESS AND RESTORATION 2.1- Client will furnish AET safe and legal site access. 2.2 Client acknowledges that in the normal course of its Services, AET may unavoidably alter existing site conditions or affect the environment in the area being studied. AET will take reasonable precautions to minimize alterations to the site or existing materials. Restoration of the site is the responsibility of the Client. SECTION 3 - UNDERGROUND UTILITY AND STRUCTURE CLEARANCE 3.1- Borings, excavations and other penetrations must be located at safe distances from underground utilities or other man -made objects. Client shall advise AET of all utilities that service or are located on the site, and any underground improvements located on the site. Prior to drilling, AET will contact state notification centers, where available, or individual utility owners where a state notification center is not available. AET shall be entitled to rely on the location information provided by locating vendors. 3_2 — If Public utility owners do not provide the locating service on private property or the property owner has private underground improvements which cannot be cleared through the state notification center or public utility owners, Client shall be responsible for location of such utilities prior to drilling, or for payment of a private utility clearance subcontractor. 3.3 - AET will not be responsible for any damages to underground utilities /improvements not located or incorrectly identified by the foregoing location methods. SECTION 4 - CONTAMINATION 4.1 - Client acknowledges and accepts all contamination risks which may be associated with the Services. Risks include, but are not limited to, cross contamination created by linking contaminated zones to uncontaminated zones during the drilling process; containment and proper disposal of known or suspected hazardous materials, drill cuttings and drill fluids; and decontamination of equipment and disposal and replacement of contaminated consumables. Discovery of actual or suspected hazardous materials shall entitle AET to take immediate measures it deems necessary in its sole discretion, including regulatory notification, to protect human health and safety, and /or the environment. Further, discovery of such materials constitutes a changed condition for which Client agrees to pay associated additional cost. 4.2 - Client shall indemnify and hold AET harmless from all liability, damages, claims or costs resulting from contaminants on the site. SECTION 5 - SAFETY 5.1 - Client shall inform AET of any known or suspected hazardous materials or unsafe conditions at the site. if, during the course of AET's Services, such materials or conditions are discovered, AET reserves the right to take measures to protect AET personnel and equipment or to immediately terminate Services. Client shall be responsible for payment of such additional protection costs. 5.2 - AET shall only be responsible for safety of AET employees at the site; the safety of all others shall be Client's or other persons' responsibility. SECTION 6— SAMPLES 6.1- Client shall inform AET of any known or suspected hazardous materials prior to submittal to AET. All samples obtained by or submitted to AET remain the property of the Client during and after the Services. Any known or suspected hazardous material samples will be returned to the Client at AET's discretion. ACS417EG (10/14) AMERICAN ENGINEERING TESTING, INC. ENVIRONMENTAL / GEOTECHNICAL SERVICE AGREEMENT - TERMS AND CONDITIONS Page 2 of 3 692 - Non - hazardous samples will be held for thirty (30) days and then discarded unless, within thirty (30) days of the report date, the Client requests In writing that AET store or ship the samples. Storage and shipping costs shall be borne solely by Client. SECTION 7 - PROJECT RECORDS The original project records prepared by AET will remain the property of AET. AET shall retain these original records for a minimum of three years following submission of the report, during which period the project records can be made available to Client at AET's office at reasonable times. SECTION 8 - STANDARD OF CARE AET performs its Services consistent with the level of care and skill normally performed by other firms in the profession at the time of this service and in this geographic area, under similar budgetary constraints. SECTION 9 - INSURANCE AET maintains insurance with coverage and limits shown below. AET will furnish certificates of insurance to Client upon request. 9_1 —AET maintains the following insurance coverage and limits of liability: Workers' Compensation Employer's Liability Commercial General Liability Automobile Liability Professional Liability Insurance Statutory Limits $100,000 each accident $500,000 disease policy limit $100,000 disease each employee $1,000,000 each occurrence $1,000,000 aggregate $1,000,000 each accident $1,000,000 per claim $1,000,000 aggregate 992 - Commercial General Liability insurance will Include coverage for Products /Completed Operations extending one (1) year after final acceptance of the Project by Owner, Property Damage including Completed Operations, Personal Injury, and Contractual Liability insurance applicable to AET's indemnity obligations under this Agreement. 993 -Automobile Liability insurance shall include coverage for all owned, hired and non -owned automobiles. 994 - Professional Liability Insurance is written on a claims -made basis and coverage will be maintained for one (1) year after final acceptance of the Project by Owner. Renewal policies during this period shall maintain the same retroactive date. 9_5 - To the extent permitted by applicable state law, and only upon Client's signing of the proposal and return of the same to AET, Client and Owner shall be named an "additional insured" on AET's Commercial General Liability Policy (Form CG D4 14 04 08, which includes blanket coverage for Products /Completed Operations and on a Primary and Non - Contributory basis) and Automobile Liability Policy. Client and Owner shall be extended "waiver of subrogation" status for applicable coverages. Any other endorsement, coverage or policy requirement shall result in additional charges. 9_6 - AET will maintain in effect all insurance coverage required by this Agreement at its sole expense, provided such insurance is reasonably available, with insurance carriers licensed to do business in the state in which the project is located and having a current A.M. Best rating of no less than A minus (A -). Such insurance shall provide for thirty (30) days prior written notice to Client for notice of cancellation or material limitations for the policy or ten (10) days' notice for non - payment of premium. 997 - AET reserves the right to charge Client for AET's costs for additional coverage requirements unknown on the date of the proposal, e.g., coverage limits or policy modification including waiver of subrogation, additional insured endorsements and other project specific requirements. SECTION 10 - DELAYS If delays to AET's Services are caused by Client or Owner, work of others, strikes, natural causes, weather, or other items beyond AET's control, a reasonable time extension for performance of work shall be granted, and AET shall receive an equitable fee adjustment. SECTION 11- PAYMENT, INTEREST, AND BREACH 11.1- Invoices are due net thirty (30) days. Client will inform AET of invoice questions or disagreements within fifteen (15) days of invoice date; unless so informed, invoices are deemed correct. 11.2 — Client agrees to pay interest on unpaid invoice balances at a rate of one and a half percent (1.5 %) per month, or the maximum allowed by law, whichever is less, beginning thirty (30) days after invoice date. 11.3 — Invoices remaining unpaid for sixty (60) days shall constitute a material breach of this Agreement, permitting AET, in its sole discretion and without limiting any other legal or equitable remedies for such breach, to terminate performance of this Agreement and be relieved of any associated duties to the Client or other persons. Further, AET may withhold from Client data and reports in AET's possession. If Client fails to cure such breach, all reports associated with the unpaid invoices shall immediately upon demand be returned to AET and Client may neither use nor rely upon such reports or the Services. 11.4 - Client will pay all AET expenses and attorney fees relating to collection of past due Invoices. SECTION 12 - MEDIATION 12.1- Except for enforcement of AET's rights to payment for Services rendered or to assert and /or enforce its lien rights, including without limitation assertion and enforcement of mechanic's lien rights and foreclosure of the same, Client and AET agree that any claim, dispute or other matter in ACS417EG (10/14) AMERICAN ENGINEERING TESTING, INC. ENVIRONMENTAL / GEOTECHNICAL SERVICE AGREEMENT - TERMS AND CONDITIONS Page 3 of 3 question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party; provided however that if either party fails to respond to a request for mediation within sixty (60) days, the party requesting mediation may without further notice, proceed to arbitration or the institution of legal or equitable proceedings. 12.2 - Mediation shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association. Request for mediation shall be in writing and the parties shall share the mediator's fee and any filing fees equally. The mediator shall be acceptable to both parties and shall have experience in commercial construction matters. SECTION 13 - LITIGATION REIMBURSEMENT Except for matters relating to non - payment of fees, which is governed by Section 9.4 hereof, payment of attorney's fees and costs associated with lawsuits or arbitration of disputes between AET and Client, which are dismissed or are judged substantially in either party's favor, shall be paid by the non - prevailing party. Applicable costs include, but are not limited to, attorney and expert witness fees, court costs, and AET costs. SECTION 14 - MUTUAL INDEMNIFICATION 14.1 - Subject to the limitations contained in Sections 13 and 14, AET agrees to indemnify Client from and against damages and costs to the extent caused by AET's intentional acts or negligent performance of the Services. 14.2 - Client agrees to indemnify AET from and against damages and costs to the extent caused by the intentional acts or negligence of the Client, Owner, Client's contractors and subcontractors or other third parties. 14.3 - If Client has an indemnity agreement with other persons or entities relating to the project for which AET's Services are performed, the Client shall include AET as a beneficiary. 14.4 - AET's indemnification to the Client, including any indemnity required or implied by law, is limited solely to losses or damages caused by its failure to meet the standard of care and only to the extent of its negligence or intentional acts. SECTION 15- WAIVER OF CONSEQUENTIAL DAMAGES NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES INCURRED EVEN IF THE POSSIBILITY OF SUCH DAMAGES WAS FORESEEABLE. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO LOSS OF USE AND LOSS OF INCOME OR PROFIT, SECTION 16 - LIMITATION OF LIABILITY Client agrees to limit AET's liability to Client resulting from AET's negligent acts, errors or omissions, such that the total liability of AET shall not exceed $50,000. SECTION 17 — UNIONIZATION AET reserves the right to negotiate an appropriate fee increase or to terminate its contract on three (3) days written notice to Client without incurring penalties or costs from Client, Owner and their successors, assignees, joint- venturers, contractors and subcontractors, or any other parties involved with the project for claims, liabilities, damages or consequential damages, directly or indirectly related to AET being required to provide unionized personnel on the project. Reservation of this right on the part of AET represents neither approval nor disapproval of unions in general or the use of collective bargaining agreements. SECTION 18 - POSTING OF NOTICES ON EMPLOYEE RIGHTS Effective June 21, 2010, prime contracts with a value of $100,000 or more and signed by federal contractors on projects with any agency of the United States government must comply with 29 CFR Part 471, which requires physical posting of a notice to employees of their rights under Federal labor laws. The required notice may be found at 29 Code of Federal Regulations Part 471, Appendix A to Subpart A. The regulation also has a "flow- down" requirement for subcontractors under the prime agreement for subcontracts with a value of $10,000 or more. AET requires strict compliance of its subcontractors working on federal contracts subject to this regulation, The regulation has specific requirements for location of posting and language(s) for the poster. SECTION 19 - TERMINATION After 7 days written notice, either party may elect to terminate this Agreement for justifiable reasons. In this event, the Client shall pay AET for all work performed, including demobilization and reporting costs to complete the file. SECTION 20 - SEVERABILITY Any provisions of this Agreement later held to violate a law or regulation shall be deemed void, and all remaining provisions shall continue in force. However, Client and AET will in good faith attempt to replace an invalid or unenforceable provision with one that is valid and enforceable, and which comes as close as possible to expressing the intent of the original provision. SECTION 21- GOVERNING LAW This Agreement shall be construed in accordance with the Laws of the State of Minnesota without regard to Its conflicts of law provisions. SECTION 22 - ENTIRE AGREEMENT This Agreement, including these terms and conditions and attached proposal and appendices, is the entire agreement between AET and Client. Regardless of method of acceptance of this Agreement by the Client, this Agreement supersedes any previous written or oral agreements, including purchase /work orders or other Client agreements submitted to AET after the start of our Services. Any modifications to this Agreement must be mutually acceptable to both parties and accepted in writing. No considerations will be given to revisions to AET's terms and conditions or alternate contract format submitted by the Client as a condition for payment of AET's accrued Services. ACS417EG (10/14) AMERICAN ENGINEERING TESTING, INC.