HomeMy WebLinkAbout2017-2821BRAUN
RNITERTEC
T ae Scierim You Build On.
September 7, 2017
Kathy Young, PE
City of Columbia Heights
637 38th Avenue NE
Columbia Heights, MN 55421
Braun Intertec Corporation
11001 Hampshire Avenue s
Minneapolis, MN 55438
Re: Proposal for Construction Materials Testing Services
40th Avenue Storm Sewer and Street Improvements
S.A.P. 113 -020 -006, 002 - 602 -012
Columbia Heights, Minnesota
Dear Ms. Young:
Proposal QTBO64752
2017 -2821
Phone: 952.995.2000
Fax: 952.995.2020
Web: braunintertec.com
Braun Intertec Corporation is pleased to submit this proposal to provide construction materials testing
services for the 40th Avenue Storm Sewer and Street Improvements Project in Columbia Heights,
Minnesota.
We have completed the geotechnical evaluation for this project, so we have a unique understanding of
the site and construction challenges. We can aid the construction team by applying this experience and
transferring our knowledge developed during the design phase which will provide professional continuity
to the construction. Our work on the project to date gives us familiarity with the project team and design
development which allows us to understand some of the considerations used when developing the
project's design.
Since our inception in 1957, we have grown into one of the largest employee owned engineering firms in
the nation. With around 1,000 employee owners, retaining our firm gives you access to a diverse range of
services and professionals you can consult with if the unforeseen occurs. The size of our company also
allows us to respond quickly when schedule constraints occur.
Our office is located within fifteen miles of the site, minimizing travel times and trip expenses. This
proximity also provides the opportunity to quickly mobilize to the site when unforeseen needs arise.
Our Understanding of Project
We understand this project will include the construction of pavement subgrade preparation, aggregate
base placement, new concrete curb and gutter, sidewalk, and driveways along with a new bituminous
pavement. Improvements to the sanitary, storm, and water main utilities will also be part of this project.
Braun Intertec performed the geotechnical and environmental evaluations for the project. Our familiarity
with the soil conditions on the project will be a good asset for the City of Columbia Heights.
This project is a City of Columbia Heights project with state -aid funding. Projects that are constructed
with state -aid funding are required to perform Quality Control and Quality Assurance (QC/QA) testing in
accordance with the Minnesota Department of Transportation's (MnDOT's) 2016 Standard Specifications
A,VF0E
City of Columbia Heights
Proposal QTB064752
September 7, 2017
Page 2
for construction along with MnDOT's Schedule of Materials Control. This project is using MnDOT's 2017
State Aid for Local Transportation (SALT) Schedule of Materials Control. Personnel with MnDOT
certifications must complete the testing. Braun Intertec will perform the QA field testing on the project
as listed in our scope of services and as shown on our attached cost estimate table. The contractor will be
responsible for performing all of the required QC testing and submitting all the documentation upon
completion of the project. An audit of the project could be conducted upon completion. The audit may
include reviewing tests and paperwork provided by your QC /QA representative.
Available Project Information
This proposal was prepared using the following documents and information.
■ Project plans and specifications prepared by the City of Columbia Heights, dated August 1,
2017 and July 10, 2017 respectively.
■ A geotechnical report prepared by Braun Intertec, dated June 14, 2017.
• Discussions with Kathy Young about scope of services.
Braun Intertec Project Personnel
For this project, we will provide technicians that are MnDOT certified in each specialized field. We have
many MnDOT certified employees. For the proposed scope of services, our staff will have the following
certifications:
■ Aggregate Production
■ Grading & Base I
• Concrete Field I
• Bituminous Street
• MnDOT or ACI Strength Testing
Accredited Laboratory
In the 2017 SALT Schedule of Material Control, which is part of this project's testing requirements,
MnDOT requires laboratories performing acceptance tests for payment to be accredited by the AASHTO
Resource (formerly AASHTO Materials Reference Laboratory [AMRL]) for all test procedures performed.
Braun Intertec is one of the few independent testing companies that is accredited in the metro area.
With Braun Intertec's Metro Material Laboratory typically operating 24 hours a day, laboratory test
results are delivered in a timely manner.
Scope of Services
Testing services will be performed on an on -call, as- needed basis as requested and scheduled by you or
your on -site project personnel. Based on our understanding of the project, we propose the following
services.
BRAUN
INTERTEC
City of Columbia Heights
Proposal QTB064752
September 7, 2017
Page 4
Soil Related Services
■ Perform nuclear gauge density tests on sub -grade and utility backfill materials.
■ Perform Dynamic Cone Penetrometer (DCP) tests on select granular borrow and aggregate
base materials.
■ Perform companion moisture content tests at time of compaction with contractor's quality
control personnel on backfill materials.
■ Perform gradation tests on granular bedding, select granular borrow and aggregate base
materials.
■ Perform laboratory standard Proctor tests on backfill and fill materials.
■ Assist inspection staff on evaluating foundation soils for subgrade correction areas. Observe
and evaluate the soils exposed in the bottoms of excavations to determine if the soils are
similar to those encountered with the geotechnical evaluation and suitable for support of
pavements. Our engineer can provide consultation for conditions that appear to differ from
the geotechnical evaluation.
■ Prepare the preliminary and final grading and base report along with assembling the random
sampling locations report for the aggregate base according to MnDOT Specifications.
Concrete Field Testing Related Services
■ Sample and test the plastic concrete for slump, air content, temperature prior to placement.
■ Prepare 4 -inch by 8 -inch cylinders for compressive strength testing.
■ Laboratory compressive strength testing of cylinders.
■ Develop the Weekly Concrete Reports for the Project Engineer's review and their submittal
to MnDors; Concrete Office.
Bituminous Related Services
■ Collect one verification sample per mix per day of production. Perform quality assurance
tests on these samples which include Rice specific gravity, asphalt content, extracted
aggregate gradation, gyratory density, coarse aggregate angularity, and fine aggregate
angularity.
■ Randomly determine and mark pavement core locations.
■ Observe the contractor coring and core testing in accordance with MnDOT's specifications,
which include watching quality control personnel weigh the cores at their laboratory.
■ Collect companion cores and test for thickness and density of pavement cores.
BRAUN
NTERTEC
City of Columbia Heights
Proposal QTB064752
September 7, 2017
Page 5
Reporting and Project Management
Test results will be issued weekly for the project as the various tasks are performed. If, at any time, there
are failing tests which do not appear to be in accordance with the plans and specifications or MnDOT's
Schedule of Materials Control, we will notify the engineer's representative and any others that we are
directed to notify.
Before the final project closeout, we will issue a final report. The report will include the following:
• Braun Intertec technician roster for technicians that conducted testing on the project.
• Completed MnDOT Materials Certification Exceptions Summary for items tested by
Braun Intertec.
• Completed Preliminary and Final Grading and Base Report.
• Moisture, Density, DCP, Proctor and Gradation tests.
• Concrete mix designs.
• Weekly concrete reports.
• Concrete compressive strength results.
• Bituminous mix designs.
• Bituminous verification test results.
• Bituminous contractor's summary sheets.
• Random core log location worksheets.
• Completed density incentive /disincentive worksheets.
• Copies of concrete and bituminous plant certifications.
Basis of Scope of Work
The costs associated with the proposed scope of services were estimated using the following
assumptions. If the construction schedule is modified or the contractor completes the various phases of
the project at different frequencies or durations than shown in this proposal, we may need to adjust the
overail cost accordingly. The scope of work and number of trips required to perform these services are as
shown in the attached table. Notable assumptions in developing our estimate include:
B_
I NTERTEC
City of Columbia Heights
Proposal QTB064752
September 7, 2017
Page 6
■ Compaction testing will be performed using the nuclear density method on subgrade
preparation material; a minimum of two tests will be conducted each trip with one trip
assumed.
■ Compaction testing will be performed using the nuclear density method on utility backfill and
fill material; a minimum of two tests will be conducted each trip with two trips assumed.
■ We assume compaction testing on granular materials will be performed using the Dynamic
Cone Penetration (DCP) method; a minimum of two tests will be conducted each trip with
one trip assumed.
■ We assume compaction testing on aggregate base will be performed using the Dynamic Cone
Penetration (DCP) method; a minimum of two tests will be conducted each trip with one trip
assumed.
• We assume seven sets of concrete tests will be required to complete the project.
• Bituminous paving will be completed in three days forthis project.
• We assume MnDOT Metro Inspections will perform concrete batch plant monitoring and
testing for this project.
• We assume MnDOT Metro Inspections will perform bituminous plant monitoring and testing
for this project.
• We assume the project engineer of record will review and approve the contractor's quality
control submittals and test results.
■ You, or others you may designate, will provide us with current and approved plans and
specifications for the project. Modification to these plans must also be sent to us so we can
review their incorporation into the work.
• We will require a minimum of 24 hours' notice for scheduling inspections for a specific time.
Shorter than 24 hours' notice may impact our ability to perform the requested services, and
the associated impacts will be the responsibility of others.
If the work is completed at different rates than described above, this proposal should be revised.
Cost and Invoicing
We will furnish the services described herein for an estimated fee of $11,549.50. Our estimated costs are
based on industry averages for construction production. Depending on the contractors performance,
our costs may be significantly reduced or slightly higher than estimated. A tabulation showing our
estimated hourly and /or unit rates associated with our proposed scope of services is also attached.
BRAUIN
INTERTEC
City of Columbia Heights
Proposal QTB064752
September 7, 2017
Page 7
Additional Services and Overtime
It is difficult to estimate all of the services, and the quantity of each service, that will be required for any
project. Our services are also directly controlled by the schedule and performance of others. For these
reasons, our actual hourly or unit quantities and associated fees may vary from those reported herein.
If the number of hours or units ultimately required exceed those assumed for purposes of this proposal,
they will be invoiced at the hourly or unit rates shown in the attached tabulation. If services are
ultimately required that have not been identified or described herein, they will be invoiced in accordance
with our current Schedule of Charges. Prior to exceeding our estimated fees, we will update you
regarding the progress of our work.
This cost estimate was developed with the understanding that the scope of services defined herein will
be required and requested during our normal work hours of 7:00 a.m. to 4:00 p.m., Monday through
Friday. Services that we are asked to provide to meet the project requirements or the contractor's
construction schedule outside our normal work hours will be invoiced using an overtime rate factor. The
factor for services provided outside our normal work hours or on Saturday will be 1.25 times the normal
hourly rate for the service provided. The factor for services provided on Sunday or legal holidays will be
1.5 times the normal hourly rate for the service provided. We have not included premiums for overtime;
however, we recommend that allowances and contingencies be made for overtime charges. You will be
billed only for services provided or, a time and material basis.
General Remarks
We will be happy to meet with you to discuss our proposed scope of services further and clarify the
various scope components.
We appreciate the opportunity to present this proposal to you. After reviewing this proposal, please sign
and return one copy to our office as notification of acceptance and authorization to proceed. If
anything in this proposal is not consistent with your requirements, please let us know immediately.
Braun Intertec will not release any written reports until we have received a signed agreement. Also,
ordering services from Braun Intertec constitutes acceptance of the terms of this proposal including the
attached General Conditions.
The proposed fee is based on the scope of services described and the assumption that our services will
be authorized within 30 days and that others will not delay us beyond our proposed schedule
BRAUN
NTE RTEC
City of Columbia Heights
Proposal QTB064752
September 7, 2017
Page 8
We include the Braun Intertec General Conditions, which provide additional terms and are a part of our
agreement.
To have questions answered or schedule a time to meet and discuss our approach to this project further,
please contact Chad Clemens at 612.270.6844 (cclemensftbraunintertec.com) or Andrew Valerius at
952.995.2242 (avalerius@braunintertec.com).
Sincerely,
BRAUN INTERTEC C RPORATION
Chad T. Clemens, EIT
Staff Engineer
Andrew M. Valerius
Principal — Senior Pro ect Manager
Attachments:
Cost Estimate Table
General Conditions - CMT (7/18/16)
The proposal is accepted. We will reimburse you in accordance with this agreement, and you are
authorized to proceed:
City of Columbia Heights
Authorizer's Firm
Authorizer's Slgnafure
Walter Fehst
Authorizer's Name (please print or type)
City Manager
Authorizer's Title
Date
BRAUN
INTERTEC
BRAUN
Project Proposal
1 NTE RTEC
QTB064752
Unit Price
40th Avenue (CSAH 2) - Columbia Heights
The Science You Bad Ga.
MnDOT Testing
Client:
Work Site Address: Service Description:
City of Columbia Heights
40th Avenue Construction Materials Testing
From Central Avenue to Reservoir Boulevard City Project No. 1706
Kathy Young
637 38th Ave NE
Columbia Heights, MN S.A.P. 113 - 020 -006
Columbia Heights, MN 55421
S.A.P. 002 - 602 -012
763- 706 -360C
Soil Testing
09/07/2017 12:57 PM r °y° . - `
Description
Quantity Units
Unit Price
extension
Phase 1
MnDOT Testing
$3,192..50
Activity 1.1
Soil Testing
206
Excavation Observations
2.50 Hour
95.00
$237.50
Work Activity Detail
Qty Units
Hrs/Unk
Extension
Subgrade
1.00 Trips
2.50
2.50
Z07
Compaction Testing - Nuclear
7.50 Hour
76.00
$570.00
Work Activity Detail
Qty Units
Hrs/Unit
Extension
Utilities, Storm, Sanitary, Water Main.
2.00 Trips
2.50
5.00
Subgrade Preparation
1.00 Trips
2.50
2.50
217
Compaction Testing - DCP's
5.00 Hour
76.00
$380.00
Work Activity Detail
Qty Units
Hrs/Unit
Extension
Select Granular Borrow
1.00 Trips
Z50
2.50
Aggregate Base
1, 00 Trips
2.50
2.50
1530
Asphalt Content (ASTM D 217216307). per sample
1.00 Each
150.00
$150.00
209
Sample pick -up
3.00 Hour
76.00
$228.00
1378
Standard Proctor Test(ASTM D 698)
3.00 Each
175.00
$525.00
Sieve analysis & 200 wash (ASTM C 136 & C 117) per
sample
6.00 Each
129.00
$774.00
1162
1308
Nuclear moisture - density meter charge, per hour
8.00 Each
21.00
$168.00
18,61
CMT Trip Charge
8.00 Each
20.00
$160.00
$2,346.00
Activity 1.2
Concrete Testing
261
Concrete Testing
17.50 Hour
76.00
$1,330.00
Work Activity Detail
Qty Units
Hrs/Unit
Extension
Colored Walk
1.00 Trips
2.50
2.50
Sidewalks
2.00 Trips
2.50
5.06
Curb & Gutter
2.00 Trips
2.50
5.00
Driveway Aprons
1.00 Trips
2.50
2.50
Alley
1.00 Trips
2.50
2.50
Compressive strength of concrete cylinders (ASTM C 39), per
21.00 Each
28.00
$588.00
1364
specimen
Work Activity Detail
Qty units
HrslUnit
Extension
Colored Walk
1.00 Set
3.00
3.00
Sidewalks
2.00 Set
3.00
6.00
Curb & Gutter
2.00 Set
100
6.00
Alley
1.06 Set
3.00
3.00
Driveway Aprons
1.00 Set
3.06
3.00
278
Concrete Cylinder Pick up
100 Hour
76.00
$228.00
Work Activity Detail
Qty Units
Hrs/Unit
Extension
Cylinder Pickup
3.00 Trips
1.00
3.00
1861
CMT Trip Charge
10.00 Each
20.00
$200.00
$3,913.00
Activity 1.3
Pavement Testing
Asphalt Content (ASTM D 2172J6307), per sample
3.00 Each
150.00
$450.00
1530
Extracted aggregate gradation (ASTM D 5444), per sample
3.00, Each
100.00
$300.00
1532
-11
09/07/2017 12:57 PM r °y° . - `
B RAU N Project Proposal
I NTE RTE C QTBO64752
The Science You BuiidOD- 40th Avenue (CSAH 2) - Columbia Heights
221 Bituminous Coring 8.00 Hour 95.00 $760.00
Work Activity Detail Qty Units Hrs/Unit Extension
Mark & Observe Contractor Coring & Testing 2.00 Trips 4.00 8.00
1542 Thickness and density of pavement core (ASTM D 2726) 10.00 Each 50.00 $500.00
209 Sample pick -up 7.50 Hour 76.00 $570.00
Work Activity Dotall Qty Units Hrs✓Unit Extension
Verification Split Sample With Contractor 3.00 Trips 2.50 7.50
1528
Rke specific gravity (ASTM D 2041), per sample
3.00 Each
80,00
$240.00
1705
Fine Aggregate Angularity (ASTM C1252), per sample
3.00 Each
76.00
$228.00
1568
Gyratory gravity (AASHTO T312), per sample
100 Each
175.00
$525.00
1688
Percent crushed (ASTM D5821), per sample
3.00 Each
80.00
$240.00
1861
CMT Trip Charge
5.00 Each
20.00
$100.00
Activity 1.4
Project Management
$2,098.00
226
Project Manager
8.00 Hour
140.00
$1,120.00
1230
MnDOT Final Report
1.00 Each
500.00
$500.00
228
Senior Project Manager
2.00 Hour
155.00
$310.00
238
Project Assistant
2.00 Hour
84.00
$168.00
Phase 1 Total: $11,549.50
Proposal Total: $11,549.50
09/07/2017 12:57 PM Page 2 of 2
General Conditions
Construction Material Testing and Special Inspections
Section 1: Agreement
1.1 Our agreement with you consists of these
General Conditions and the accompanying written
proposal or authorization ( "Agreement"). This
Agreement is the entire agreement between you
and us. It supersedes prior agreements. It may be
modified only in a writing signed by us, making
specific reference to the provision modified.
12 The words "you," "we," "us,' and "our"
include officers, employees, and subcontractors.
13 In the event you use a purchase order or
other documentation to authorize our scope of
work ( "Services "), any conflicting or additional
terms are not part of this Agreement. Directing us
to start work prior to execution of this Agreement
constitutes your acceptance. If, however, mutually
acceptable terms cannot be established, we have
the right to terminate this Agreement without
liability to you or others, and you will compensate
us for costs and expenses incurred up to the time
of termination.
Section 2: Our Responsibilities
2.1 We will provide Services specifically
described in this Agreement. You agree that we
are not responsible for services that are not
expressly included in this Agreement. Unless
otherwise agreed in writing, our findings, opinions,
and recommendations will be provided to you in
writing. You agree not to rely on oral findings,
opinions, or recommendations without our
written approval.
2.2 In performing our professional services, we
will use that degree of care and skill ordinarily
exercised under similar circumstances by
reputable members of our profession practicing in
the same locality. If you direct us to deviate from
our recommended procedures, you agree to hold
us harmless from claims, damages, and expenses
arising out of your direction. If during the one year
period following completion of Services it is
determined that the above standards have not
been met and you have promptly notified us in
writing of such failure, we will perform, at our
cost, such corrective services as may be necessary,
within the original scope in this Agreement, to
remedy such deficiency. Remedies set forth in this
section constitute your sole and exclusive recourse
with respect to the performance or quality of
Services.
2.3 We will reference our field observations and
sampling to available reference points, but we will
not survey, set, or check the accuracy of those
points unless we accept that duty In writing.
Locations of field observations or sampling
described in our report or shown on our sketches
are based on information provided by others or
estimates made by our personnel. You agree that
such dimensions, depths, or elevations are
approximations unless specifically stated
otherwise in the report. You accept the inherent
risk that samples or observations may not be
representative of things not sampled or seen and
further that site conditions may vary over distance
or change overtime.
2A Our duties do not include supervising or
directing your representatives or contractors or
commenting on, overseeing, or providing the
means and methods of their services unless
expressly set forth in this Agreement. We will not
be responsible for the failure of your contractors,
and the providing of Services will not relieve
others of their responsibilities to you or to others.
2.5 We will provide a health and safety program
for our employees, but we will not be responsible
for contractor, owner, project, or site health or
safety.
2.6 You will provide, at no cost to us,
appropriate site safety measures as to work areas
to be observed or inspected by us. Our employees
are authorized by you to refuse to work under
conditions that may be unsafe.
2.7 Unless a fixed fee is indicated, our price is an
estimate of our project costs and expenses based
on information available to us and our experience
and knowledge. Such estimates are an exercise of
our professional judgment and are not guaranteed
or warranted. Actual costs may vary. You should
allow a contingency in addition to estimated costs.
Section 3: Your Responsibilities
3.1 You will provide us with prior environmental,
geotechnical and other reports, specifications,
plans, and Information to which you have access
about the site. You agree to provide us with all
plans, changes in plans, and new information as to
site conditions until we have completed Services.
3.2 You will provide access to the site. In the
performance of Services some site damage is
normal even when due care is exercised. We will
use reasonable care to minimize damage to the
site. We have not included the cost of restoration
of damage in the estimated charges.
33 If we notify you that radiographic or gamma
ray equipment or other nuclear testing or
measuring device will be used, you will be
responsible for the cooperation of your employees
and your contractors in observing all radiation
safety standards.
3A You wUl notify us of any knowledge or
suspicion of the presence of hazardous or
dangerous materials present on any work site. If
we observe or suspect the presence of
contaminants not anticipated in this Agreement,
we may terminate Services without liability to you
or to others, and you will compensate us for costs
and expenses incurred up to the time of
termination.
3.5 The time our field personnel spend on the
job site depends upon the scheduling of the work
we are observing or testing. You agree that any
changes in scheduling may result in additional
BRAUN
INTERTEC
costs and agree to pay for those services ai the
rates listed in our cost estimate.
3.6 You agree to include us as an indemnified
party in your contracts, if any, for work by others
on the project, protecting us to the same degree
as you are protected. You agree to list us as an
Additional Insured under your liability insurance
policies and to require subrogation be waived
against us and that we will be added as an
Additional Insured on all policies of insurance,
including any policies required of your contractors
or subcontractors, covering any construction or
development activities to be performed on the
project site.
Section 4: Reports and Records
4.1 Unless you request otherwise, we will
provide our report(s) In an electronic format.
4.2 Our reports, notes, calculations, and other
documents and our computer software and data
are instruments of our service to you, and they
remain our property. We hereby grant you a
license to use the reports and related information
we provide only for the related project and for the
purposes disclosed to us. You may not transfer our
reports to others or use them for a purpose for
which they were not prepared without our written
approval. You agree to indemnify, defend, and
hold us harmless from claims, damages, losses,
and expenses, including attorney fees, arising out
of such a transfer or use.
4.3 If you do not pay for Services in full as
agreed, we may retain work not yet delivered to
you and you agree to return to us all of our work
that is in your possession or under your control.
4.4 Electronic data, reports, photographs,
samples, and other materials provided by you or
others may be discarded or returned to you, at our
discretion, unless within 15 days of the report date
you give us written direction to store or transfer
the materials at your expense.
Section 5: Compensation
5.1 You will pay for Services as stated in this
Agreement. If such payment references our
Schedule of Charges, the Invoicing will be based
upon the most current schedule. An estimated
cost is not a firm figure. You agree to pay all sales
taxes and other taxes based on your payment of
our compensation. Our performance Is subject to
credit approval and payment of any specified
retainer.
5.2 You will notify us of billing disputes within 15
days. You will pay undisputed portions of invoices
upon receipt. You agree to pay Interest on unpaid
balances beginning 3o days after invoice dates at
the rate of 1.5% per month, or at the maximum
rate allowed by law.
53 if you direct us to invoice a third party, we
may do so, but you agree to be responsible for our
compensation unless the third party is
GC-CMT Page 1 of 2
creditworthy (in our sole opinion) and provides
written acceptance of all terms of this Agreement.
SA Your obligation to pay for Services under this
Agreement is not contingent on your ability to
obtain financing, governmental or regulatory
agency approval, permits, final adjudication of any
lawsuit, your successful completion of any project,
receipt of payment from a third party, or any
other event. No retainage will be withheld.
5.5 If you do not pay us in accordance with this
Agreement, you agree to reimburse our costs and
expenses for collection of the moneys invoiced,
including but not limited to attorney fees, staff
time, and other costs and expenses.
5.6 You agree to compensate us in accordance
with our Schedule of Charges if we are asked or
required to respond to legal process arising out of
a proceeding related to the project and as to
which we are not a party.
5.7 If we are delayed by factors beyond our
control, or if project conditions or the scope or
amount of work changes, or if changed labor
conditions result in increased costs, decreased
efficiency, or delays, or If the standards or
methods change, we will give you timely notice,
the schedule will be extended for each day of
delay, and we will be compensated for costs and
expenses incurred in accordance with our
Schedule of Charges.
5.8 If you fail to pay us in accordance with this
Agreement, we may consider the default a total
breach of this Agreement and, at our option,
terminate our duties without liability to you or to
others, and you will compensate us for costs and
expenses incurred up to the time of termination,
5.9 In consideration of our providing insurance
to cover claims made by you, you hereby waive
any right to offset fees otherwise due us.
Section 6: Disputes, Damage, and Risk Allocation
6.1 Each of us will exercise good faith efforts to
resolve disputes without litigation. Such efforts
will Include, but not be limited to, a meeting(s)
attended by each party's representative(s)
empowered to resolve the dispute. Before either
of us commences an action against the other,
disputes (except collections) will be submitted to
mediation.
6.2 Notwithstanding anything to the contrary in
this Agreement neither party hereto shall be
responsible or hell liable to the other for
punitive, Indirect; incidental, or consequential
damages, or Gabr7ity far loss of use, loss of
business opportunity, loss of profit or revenue,
loss of product or output, or business
interruption.
6.3 You and we agree that any action In relation
to an alleged breach of our standard of care or this
Agreement shall be commenced within one year
of the date of the breach or of the date of
substantial completion of Services, whichever is
earlier, without regard to the date the breach is
discovered. Any action not brought within that
one year time period shall be barred, without
regard to any other limitations period set forth by
law or statute. We will not be liable unless you
have notified us within 30 days of the date of such
breach and unless you have given us an
opportunity to Investigate and to recommend
ways of mitigating damages. You agree not to
make a claim against us unless you have provided
us at least 30 days prior to the institution of any
legal proceeding against us with a written
certificate executed by an appropriately licensed
professional specifying and certifying each and
every act oromission thatyou contend constitutes
a violation of the standard of care governing our
professional services. Should you fail to meet the
conditions above, you agree to fully release us
from any liability for such allegation.
6.4 For you to obtain the benefit of a fee which
Includes a reasonable allowance for risks, you
agree that our aggregate Imbinty for all claims
will not exceed the fee paid for Services or
$50,000, whkhever is greater. If you are
unwilling to accept this allocation of risky we will
Increase our aggregate liability to $500,000
proWded that, within 10 days of the dote of this
Agreement, you provide payment in an amount
that will increase our fees by 1096, but not less
than $500, to compensate us for the greater risk
undertaken. This increased fee is not the purchase
ofinsurance.
6,5 You agree to indemnify us from all liability
to others in excess of the risk allocation stated
herein and to insure this obligation. in addition,
all Indemnities and limitations of liability set
forth In this Agreement apply however the same
may arise, whether in contract, tort, statute,
equity or other theory of law, including, but no t
limited to, the breach of any legal duty or the
fault, negligence, or strict liability of either party.
6.6 This Agreement shall be governed,
construed, and enforced in accordance with the
laws of the state In which our servicing office is
located, without regard to its conflict of laws rules.
The laws of the state of our servicing office will
govern all disputes, and all claims shall be heard in
the state or federal courts for that state. Each of
us waives trial by jury.
6.7 No officer or employee acting within the
scope of employment shall have individual liability
for his or her acts or omissions, and you agree not
to make a claim against individual officers or
employees.
Section 7: General Indemnification
7.1 We will indemnfy and hold you harmless
from and against demands, damages, and
expenses of others to the comparative extent they
are caused by our negligent acts or omissions or
those negligent acts or omissions of persons for
Whom we are legally responsible. You will
Indemnify and hold us harmless from and against
demands, damages, and expenses of others to the
comparative extent they ore caused by your
negligent acts or omissions or those negligent acts
or omissions of persons for whom you are legally
responsible.
7.2 To the extent it maybe necessary to
indemnify either of us under Section 71, you and
we expressly waive, in favor of the other only, any
immunity or exemption from liability that exists
under any worker compensation law.
Section 8: Miscellaneous Provisions
8.1 We will provide a certificate of insurance to
You upon request. Any claim as an Additional
Insured shall be limited to losses caused by our
negligence.
8.2 You and we, for ourselves and our insurers,
waive all claims and rights of subrogation for
losses arising out of causes of loss covered by our
respective insurance policies.
8.3 Neither of us will assignor transfer any
interest, any claim, any cause of action, or any
right against the other. Neither of us will assign or
otherwise transferor encumber any proceeds or
expected proceeds or compensation from the
project or project claims to any third person,
whether directly or as collateral or otherwise.
8.4 This Agreement may be terminated early
only in writing. You will compensate us for costs
and expenses incurred up to the time of
termination.
8.5 If any provision of this Agreement is held
Invalid or unenforceable, then such provision will
be modified to reflect the parties' Intention. All
remaining provisions of this Agreement shall
remain In full force and effect.
8.6 No waiver of any right or privilege of either
party will occur upon such party's failure to insist
on performance ofanyterm, condition, or
Instruction, or failure to exercise any right or
privilege or Its waiver of any breach.
GC -CMT Revised 7/18/2016 Page 2 of 2