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2166 RESOLUTION NO. a 1 c� . A RESOLUTION APPROVING THE SELECTION OF AN ENGINEERING FIRM AND APPROVING AN AGREEMENT FOR ENGINEERING SERVICES REQUIRED TO PERFORM A GEOTECHNICAL EXPLORATION FOR THE I-40 MEGA SITE,AND FOR OTHER PURPOSES. WHEREAS, Arkansas Code Annotated Section 19-11-801, et seq.,provides the procedure for the selection and negotiation of contracts for professional services, including professional engineering services; and WHEREAS, competitive bidding for the procurement of professional engineering services is prohibited; and WHEREAS,the City of West Memphis is in need of professional engineering services required to provide the geotechnical exploration for the I-40 Mega Site; and WHEREAS,the City of West Memphis has reviewed and evaluated the current statements of qualifications and performance data on file, and negotiated a contract with the firm considered the best qualified and capable of performing the desired work,that being Geotechnology, Inc.; and WHEREAS,-a copy of the proposed contract between the City of West Memphis and Geotechnology, Inc., for these professional engineering services is attached hereto; NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS,ARKANSAS,that the selection of Geotechnology, Inc.,to provide professional engineering services to the City of West Memphis for-engineering services required to provide the geotechnical exploration for the I-40 Mega Site is hereby approved and the Mayor and the City Clerk are hereby authorized to execute the necessary contracts on behalf of the City of West Memphis for the professional services to be provided by Geotechnology, Inc. C ADOPTED this 5-+k day off pr i 1 , 2018. William H. Jo1FMson1'_­MaT0r IECEIVED City-Clerk's Office ATTEST: Phillip P , ity Clerk Ama GEOTECHNOLOGYP'i FROM THE GROUND UP Via email: psorrell@citywm.corn ©2017 Geotechnology, Inc. October 25, 2017 Mr. Phillip Sorrell, P.E. City of West Memphis 205 South Redding West Memphis, Arkansas 72301 Re: Proposal for Preliminary Geotechnical Exploration Project 17 West Memphis, Arkansas Geotechnology Proposal No. P031019.01 Dear Mr. Sorrell: In response to your request, Geotechnology, Inc. (Geotechnology) is pleased to submit this proposal to perform a preliminary geotechnical exploration for Project 17 in West Memphis, Arkansas.. We have prepared this proposal based on our review of your October 24, 2017 request for proposal (RFP), our subsequent discussions, a review of our archival geotechnical data and our experience as geotechnical engineers in the project area. 1.0 SITE AND PROJECT INFORMATION The site is approximately 1,800 acres in size and is used for agricultural purposes. We understand future plans for the site include development of the site for industrial facilities. It is our understanding a preliminary geotechnical exploration is required for due-diligence for the future development. 2.0 KEY GEOTECHNICAL ISSUES AND CONSIDERATIONS We anticipate the planned development will have the following key issues the preliminary geotechnical exploration will address: • Presence of highly plastic clays _ • Stability of the graded and natural slope • Grading and reuse of on-site soils • Quality and strength of near-surface soils for support of low-rise structures i Groundwater depth Seismic site classification per 2012 International Building Code (IBC) 3312 Winbrook Drive i Memphis, TN 38116 (901)353-1981 1 Fax: (901) 353-8126 1 geotechnology.com Subsurface Exploration Project 17 1 West Memphis,Arkansas October 25, 2017 1 Geotechnology Proposal No. P031019.01 3.0 SCOPE OF SERVICES The purposes of our services are to explore the subsurface conditions and provide geotechnical recommendations for the design and construction of the project. Geotechnology suggests the following scope of services for the preliminary geotechnical exploration: • Drill 13 borings to depths of 30 to 50 feet. In each boring, soil samples will be obtained by split-spoon sampling methods at regular intervals. Occasionally, Shelby tube samples of soils will be recovered to obtain a relatively undisturbed soil sample for laboratory testing. A maximum of 410 linear feet of drilling and split-spoon sampling is budgeted. • Perform laboratory tests on select soil samples to evaluate index and strength properties. Laboratory testing will include various combinations of the following tests: moisture content, Atterberg limits, gradation (particle-size) analyses and unconsolidated- undrained triaxial compression. • Prepare a report summarizing the results of the borings and laboratory tests. • Distribute the report in pdf and-paper,(two copies)format to the City of West Memphis. Our scope will also include the following auxiliary services to support the primary geotechnical services described previously: • Staking and approximately locating the borings in the field by measurements in consultation with the Client. Ground surface elevations will be approximated from a topog raph ic,plan provided by the Client, if available. • Contacting Arkansas One-Call in order for member utility companies to locate public utilities within the proximity of the borings prior to drilling. Private utilities, if present, must be located by others prior to drilling. The locating of private utilities is excluded from our scope of services. • Backfilling the borings with auger cuttings and plastic hole plugs upon completion of the drilling activities. This scope of services does not include any environmental assessment, investigation, or study for the presence or absence of wetlands or hazardous or toxic materials in the soil, bedrock, surface water, groundwater, or air, on or below or around the site. We can provide an estimate for environmental services in separate proposal if required. Geotechnology owns and operates drilling equipment, which reduces the client's risk by eliminating subcontract work. Our drilling staff are trained and focused on obtaining quality samples in a safe manner. Please consider this, and our use of an on-site geologist or engineer mentioned above, when comparing our proposal to firms that rely on subcontracted drilling services. ©2017 Geotechnology, Inc. 2 ldmp;i= Subsurface Exploration Project 17 1 West Memphis, Arkansas October 25, 2017 (Geotechnology Proposal.No. P031019.01 4P A copy of "Important Information about This Geotechnical Engineering Proposal" that is published by the Geoprofessional Business Association (GBA) is enclosed for your review. 3.1 Site Access and Restoration Any restrictions or requirements imposed by governmental agencies or others with regard to site clearing, access limitation, utility clearance, or restoration are considered beyond our scope of services. Drill rig access to boring locations in unpaved areas may leave ruts in the soil or grass or damage existing crops. Our scope does not include restoration of ruts, other disturbance or compensation of others for damages to existing crops caused by the.drill rig. 3.2 Anticipated Subsurface Conditions The budgeted linear footage of drilling and sampling is based on an anticipated subsurface profile of clay undedain'by sand. In the event that unusual or erratic subsurface conditions are encountered,Nwe will contact you to discuss our recommended changes prior to expanding the scope of services. 4.0 SCHEDULE AND FEE Coordination of boring locations and utility notification as required by law will take a minimum of three days to complete. Geotechnology will contact Arkansas One Call for locating public utilities. No fee for private utility location is included in our budget. Drilling for the proposed scope of work will take approximately 4 days. Our report will be submitted within 10 business days following completion of the fieldwork. Our services are offered in accordance with the accompanying Terms for Geotechnology's Geotechnical Services (Terms). The cost of our services will be a lump sum fee of Ten Thousand Two Hundred Dollars ($10,200.00). This sum includes drilling, sampling, laboratory testing, boring log preparation and report preparation. Our services are offered in accordance with the accompanying Terms for Geotechnology's Geotechnical Services (Terms). This proposal and fee estimate have been prepared using Geotechnology's standard fee schedule. Geotechnology reserves the right to revise this proposal and fee estimate, at any time, if any flow down and/or contract provisions are required by the Client or the Owner to conform with any local, state, or federal wage act requirements, including, but not limited to, the Davis-Bacon Act, as Amended, the McNamara-O'Hara Service Contract Act, etc., the required use of union labor, or for any required safety, security, vehicle, drug and alcohol testing, or for any third party payment fees, or for other requirements not specified in the Client's request for r proposal or not defined in Geotechnology's scope of services. 5.0 ACCEPTANCE If this proposal, including the contractual terms, is acceptable, please sign in the space provided on the following Terms and return one executed copy of the Terms and this proposal to our ©2017 Geotechnology, Inc. 3 Subsurface Exploration Project 17 (West Memphis, Arkansas October 25, 2017 1 Geotechnology Proposal No. P031019.01 office as your authorization for us to proceed. For the optional service(s), please initial the corresponding lines in the Optional Services Section to designate whether those services are authorized or not. We appreciate the opportunity to submit this proposal for the referenced project and look forward to hearing from you soon. If you have any questions or comments concerning this proposal, or if we may be of any other service to you, please do not hesitate to contact us. Very truly yours GjHson, rOGY, INC. JoP.G. Pat Donovan, P.E. Project Manager Branch Manager JKH/JPD:jkh Enclosures: GSA's Important Information about This Geotechnical Engineering Proposal Terms ©2017 Geotechnology, Inc. 4 GEOTECHHOLOGYN Feet(THE GROUND UP TERMS FOR GLOGY'S GEOTECHNICAL SERVICES I- THE AGREEMENT a. This AGREEMENT is made by and between: Geotechnolotgry, Inc.. hereinafter refea-red to a., GEOTECHNOLOGY, and City of I Iffest Memphis,hereinafter referred to as CLIENT. b. The AGREEMENT between the parties consists of these TERMS. the attached PROPOSAL identified a:: proposal No. P031019.01,dated October 25, 2017, and any exhibits or attachments noted in 'the PROPOSAL. Together, these elements will constitute the entire AGREEMENT supcz-seding any and all prior negotiations, correspondence, or agreement,; either written or oral. Any changes to this AGREEMENT must be mutually agreed to in writing. cThis proposal is valid for 90 days from October 25,2017. d' The technical pricing information contained in this PROPOSAL submitted by GEOTECHNOLOGY is to be considered confidential and proprietary and shall not be released or otherwise made available to any third party without the express written consent of GEOTECHNOLOGY. C2 It is intended by the parties to this AGREEMENT that GEOTECHNOLOGY'S services in connection with the project shall not subject GEOTECHNOLOGYS individual employees,officers or directors to any personal legal exposure for the risks associated with this project. Therefore,and notwithstanding anything to the contrary contained herein,CLIENT agrees that as the CLIENTS sole and exclusive rernedy, any claim,demand or suit shall be directed and/or asserted only against GEOTECHNOLOGY,a Missouri corporation,and not against any of GEOTECHNOLOGYS employees,officers or directors, 2- STANDARD OF CARE a. CLIENT,recognizes that subsurface conditions may vary from those observed at locations where borings,surveys,or explorations are made, and that site conditions may change with time. Data,interpretations,and recommendations by GEOTECHNOLOGY will be based solely on information available to GEOTECIiNOLOGY. GEOTECHNOLOGY is responsible for those data,interpretations,and recommendations,but will not be responsible for other parties'interpretations or use of the information developed. b. GEOTECHNOLOGY offers different levels of services to suit the desires and needs of different clients. Although the possibility of error can never be eliminated,more detailed and extensive services yield more information and reduce the probability of error,but at increased cost. CLIENT has reviewed the scope of services and has determined that it does not need or want a greater level of service than that being provided_ c. The standard of cam for all professional engineering and related services performed under this AGREEMENT will be the care and skill, ordinarily used by members of the subject profession practicing under similar circumstances at die same time and in the same locality. GECrl'ECIINOLOGY makes no warranties, express or implied, under this AGREEMENT or otherwise, in connection urith any services, performed or furnished by GEOTECHNOLOGY. 3- SITE ACCESS AND SITE CONDITIONS a�. CLIENT will grant or obtain free access to the site for all equipment and personnel necessary for GEOTECHNOLOGY to perform the services set forth in this AGREEMENT. CLIENT will notify any and all possessors of the project site that CLIENT has granted GEOTECHNIOLOGY free access to the site. GEOTECUNTOLO03Y will take reasonable precautions to reduce damage to the site,but it is understood by CLIENT that,in the normal course of the services,some damage may occur and the correction of such damage is not part of this AGREEMENT unless so specified in the PROPOSAL. Unless indicated otherwise in the PROPOSAL,CLIENT is responsible for accurately delineating the locations of all subterranean structures and utilities. GEOTECHNOLOGY will take reasonable precaution-,to avoid known subterranean structures,and CLIENT waives any clairn against GEOTECHNOLOGY arising from damage done to subterranean structures and utilities riot identified or accurately located. 4- SAMPLES AND CUTTINGS a, GEOTECTINOLOGY will dispose of soil and rock samples ninety(90)days after submittal of the report covering those samples. Further storage or transfer of samples can be made at CLIENT'S expense upon CLIENT'S prior written request. b. Cuttings,rinse water,well development and other wastes will be left on site and are CLIENT's responsibility to dispose unldss specifically addressed in the PROPOSAL, c. CLIENT shall take custody of all monitoring wells, probe holes and borings installed by GEOTF-CF114OLOGY and shall take any and all necessary steps for the proper maintenance,repair or closure for such wells,probes,or borings at CLIENT'S expense. 5- OBSERVATION a. CLIENT recognizes that unanticipated or changed conditions may be encountered during construction and,principally for this reason,CLIENT shall retain GEOTECHNOLOGY to observe construction. CLIENT understands that construction observation is conducted to reduce-not eliminate-the risk of problems arising during,construction and that provision of the service does not create a warranty or guarantee of any type. In all cases._contractors shall retain responsibility for the quality and completeness of their work and for adhering to the plans, specifications, and recommendations on which their work is based., Should GEOTECHNOLOGY for any reason not provide construction observation during the implementation of GEOTECHNIOLOGY's plans, specifications, and recommendations, or should CLIENT restrict GEOTECTINTOLOGY's assignment of observation personnel,CLIENT shall,to the fullest extent permitted by law,waive any claim against GEOTECI-INOLOGY,and indemnify,defend,and hold GEOTECHNOLOGY harmless from any claim or liability for injury or loss arising from field problems allegedly caused by findings,conclusions,recommendations,plans,or specifications developed by GEOTECHNOLOGY. b. GEOTECIINIOLOGY shall'not be required to sign any document,no matter by whom requested,that would result in GEOTECFINOLOCFY having to certify,guarantee,or warrant the existence of conditions whose existence GEOTIECHNIOLOGY cannot ascertain. CLIENT agrees not to make resolution of any dispute with GEOTECHNOLOGY or payment of any amount due to GEOTECI-INOLOGY in any way contingent upon GEOTECHNOLOGY signing any such document. 0 2417 GEOTECHNOLOGY,INC. 1 of P031019.01 c. The use of the word"certify"or-certification"by a registered professional engineer in the practice of professional engineering constitutes an expression of professional opinion regarding those facts or findings which are the subject of the certification.and does not constitute a warranty or guarantee,either express or implied. The definition and legal effect of any and all certifications shall be limited as stated herein. 6- .IOBSITE a Unless indicated otherwise in the PROPOSAL„GEOTECHNOLOGY will not be responsible for and will not have control or charge of specific means,methods,techniques,sequences or procedures of construction or other field activities selected by any agent or agreement of CLIENT, or safety precautions and programs incident thereto. GEOTECHNOLOGY shall be responsible only for its activities and that of its employees on any site. Neither the professional activities nor the presence of GEOTECHNOLOGY or its employees or its subcontractors on a site shall imply that GEOTECIiNOLOGY controls the operations of others,nor shall this be construed to be acceptance by GEOTECHNOLOGY of any responsibility for jobsite safety. b. CLIENT undeastands that GEOTECHNOLOGY'S services under this AGREEMENT are limited to geotechnical engineering and that GEOTECHNOLOGY shall have no responsibility to locate,identify,evaluate,treat or otherwise consider or deal with hazardous materials. CLIENT shalt be solely responsible for notifying all appropriate federal, state, municipal or other governmental agencies, including the potentially affected public,of die existence of any hazardous materials located on or in the project;site,or located during the performance of this AGREENIENT. The existence or discovery of unanticipated hazardous materials shall constitute a Changed Condition, and GEOTECHNOLOGY shall have the right to suspend its services in whole or in part if a mutually acceptable modification is not negotiated between GEOTECJJNOLOGY and CLIENT. 7- CHANGED CONDITIONS a. If, during the course of performance of this AGREEMENT, conditions or circumstances are discovered which were not contemplated by GEOTECHNOLOGY.at the commencement of this AGREEMENT, GEOTECHNOLOGY shall notify CLIENT in writing of the newly discovered conditions or circumstances,and CLIENT and GEOTECHNOLOGY shall renegotiate,in good faith,the terms and conditions of this AGREEMENT. 8- BILLUi\G AND PAYMENT a. CLIENT will pay GEOTECI-INOLOGY in accxudanoe with the procedures indicatd in the PROPOSAL and•its attachments. Invoices'MIl be submitted to CLIENT by GEOTECHNOLOGY,and will be due and payable upon presentation. If CLIENT objects to all or any portion of any invoice,CLIENT will so notify GEOTECIINOLOGY in writing within fourteen(14)calendar days of the invoice date,identify the cause of disagreement, and pay when due that portion of the invoice not in dispute. The parties will immediately make every effort to settle the disputed portion of the invoice. The absence of written notification described above,shall constitute an unqualified acceptance of the invoice amount due and payable,and waiver by CLIENT of all claims with respect thereto. h. CLIENT recognizes that late payment of invoices results in extra expenses for GEOTECHNOLOGY. GEOTECHNOLOGY retains the right to assess CLIENT interest at the rate of one peroetht(1%)per month,but not to exceed the maximum rate allowed by law,on invoices which are not paid within thirty(30)days from the date of the invoice. In the event undisputed portions of GEOTECHNOLOGY'S invoices are not paid when due,GEOTECHNOLOGY reserves the right,after seven(7)days.prior written notice,to suspend the performance of its services under this AGREEMENT until all past due amounts have been paid in full. C. If test results that indicate failure of a material to meet the intended specification require retesting of the material after additional work by parties responsible for that material,the cost of retesting will be invoiced to the CLIENT. d. GEO TECHNOLOGY may elect to adjust its rates under this AGREEMENT to account for changes in overhead rates and salary adjustments no sooner than one year from the date of this AGREEMENT,and no more often than once per year at the end of each subsequent year. 9- TERMINATION a. This AGREEMENT may be terminated by either party seven(7)days after written notice in the event of any breach of any provision of this AGREEMENT or in the event of substantial failure of performance by the other party,or if CLIENT suspends the work for more than three (3)months. In the event of termination, GFOTEC14NOLOGY will be paid for services performed prior to the date of termination plus reasonable termination expenses,including,but not limited to the cost of completing analyses,records,and reports necessary to document job status at the time of termination. 10-ALLOCATION OF RISK 10.1 LIMITATION OF LIABILITY a. GEOTECHNOLOGY and CLIENT have evaluated the risks and rewards associated with this project, including GEOTECHNOLOGY'S fee relative to the risks assumed,and agree to allocate certain of tie risks,so,to the fullest extent permitted by law,the total aggregate liability of GEOTECHNOLOGY to CLIENT and third parties granted reliance is limited to the greater of $50000 or GEOTECHNOLOGY'S fee, for anand all injuries damages,claims,losses,expenses, or claim y injuries, g p expenses(including attorney's fees)arising out of GEOTECHNOLOGY'S'services or this agreement regardless of cause or causes. Such causes include, but are not limited to, GEOTECHNOLOGY'S negligence, errors, omissions, strict liability, statutory liability, negligent misrepresentation,breach of contract,breach of warranty,or other acts giving rise to liability based on contract,tort or statute. If CLIENT prefers to have higher limits of liability coverage,GEOTECHNOLOGY agrees upon receipt of CLIENTS written request at the time of accepting our PROPOSAL,to increase the limits of liability up to a maximum of$1,000,000.00 at an additional cost of 5 percent of our total fee or$1,000.00;whichever is greater. b. Neither party shall have any liability to the other party for loss of product,loss of profit,loss of use,or any other indirect,incidental, special or consequential damages incurred by the other party. 0 2017 GEOTECHNOLOGY,INC. 2 of 4 P031019.01 10.2 INDEMNIFICATION a. Subject to the provisions of the Limitation of Liability described in 10.1 a.above,CLIENT and GEOTECHNOLOGY each agree to indemnify the other party and the other party's officers,directors,partners,employees,and representatives, from and against losses, damages, and judgments arising from claims by third parties, including reasonable attorneys' fees and expenses recoverable under applicable law,but only to the extent they are found to be caused by a negligent act,error,or omission of the indemnifying party or any of the indemnifying party's officers, directors, members, partners, agents; employees,.,or subconsultants in the performance of services under this AGREEMENT. if claims, losses,damages,and judgments are found to be caused by the joint or concurrent negligence of CLIENT and GEOTECHNOLOGY, they shall be home by each party in proportion to its negligence. b. CLIENT shall indemnify and hold harmless GEOTECHNOLOGY,its agents, subcontractors, directors, officeas, and employees, from and against any and all claims,suits,liability,damages,injunctive or equitable relief,expenses,including reasonable attorney's fees or other loss arising from damage to subterranean structures or utilities which were not adequately shown on plans furnished by CLIENT to GEOTECHNOLOGY in advance of our work or the discovery of unanticipated hazardous materials or suspected hazardous materials,including,but not limited to,any costs created by delay of the project and any costs associated with possible reduction of the property's value. 11-CONTINUI'iNG AGREEMENT a. The indemnity obligations and limitations of liabilities established throughout this AGREEMENT, regardless of paragraph number, shall survive the assignment,transfer,expiration or termination of this AGREEMENT. 12-PREVAILING WAGE AND UNION MEMBERSHIP a. Unless CLIENT specifically informs GEOTECHNOLOGY in writing or it is specifically identified in our proposal that prevailing wage regulations or union membership are required for the Project and the Scope of Services identifies it as covered, CLIENT will reimburse, defend, indemnify and hold harmless GEOTECHNOLOGY from and against any liability resulting from a subsequent determination that prevailing wageregulations or union membership cover the Project,including all additional costs,fines and attorneys'fees. 13-THIRD PARTY RELIANCE UPON REPORTS a.. All Documents are prepared solely for use by CLIENT(and Owner,if applicable) and shall not be provided to any other person or entity without GEOTECHNOLOGY'S written consent. CLIENT shall defend, indemnify and hold harmless GEOTECHNOLOGY, its officers, shareholders and employees,from and against any action or proceeding brought by any person or entity claiming to rely upon information,or opinions contained in reports or other documents provided to such person or entity, published, disclosed or referred to without GEOTECHNOLOGY'S written consent. 3 14-NON-SOLICITATION OF EMPLOYEES & CLIENT recognizes that GEOTECHNOLOGY, as a part of the services covered by this AGREEMENT, may provide one or more of its employees to work with members of CLIENTS project staff or specifically on a CLIENT'S project. For purposes of this AGREEMENT,an, employee of GEOTECHNOLOGY may be a,permanent or temporary employee assigned to provide services to CLIENT. CLIENT hereby agrees that CLIENT will not hire,either directly or indirectly,or provide inducement to hire an employee of GEOTECHNOLOGY either as an, employee of CLIENT or as an employee of a subcontractor or supplier to CLIENT,such suppliers to include providers of contract labor,during the term of this AGREEMENT and for a period of six months after the termination of this AGREEMENT. Any hiring or inducement to hire any GEOTECHNOLOGY employee during the term of this AGREEMENT and for a period of six months after termination of this AGREEMENT will be subject to a fee equal to 25%of the total fee for services generated by that employee during a nominal 12-month period 15-DISPUTES RESOLUTION a. All claims,disputes,and other matters in controversy between GEOTECHNOLOGY and CLIENT arising out of or in any way related to this AGREEMENT will be submitted to mediation as a condition precedent to litigation. Notwithstanding any other provision of the Agreement, unless prohibited by law,GEOTECHNOLOGY shall have,in addition to any other right or option set forth herein,the right to proceed in creating a lien upon the building or other improvements and upon the real estate on which the building or improvements are situated for the work and labor done and the labor and materials furnished on and to said real estate and to enforce its mechanic's lien pursuant to all rights and remedies available to it under law. b. If a dispute at law arises from matters related to the services provided under this AGREEMENT and that dispute requires litigation,then: (1) the claim will be brought and tried in St.Louis County,Missouri and CLIENT waives the right to move the action to any other county or judicial jurisdiction,and (2) the prevailing party in any arbitration or litigation between GEOTECHNOLOGY and CLIENT shall he entitled to recovery of all reasonable costs incurred,including staff time,court costs,attorneys'fees,expert witness costs,and other claim related expenses. For purposes of this paragraph,a party prevails if(i)the judgment is equal to or in excess of the Plaintiffs last written demand for settlement,the Plaintiff I shall also be entitled to recover its costs,expenses and reasonable attorney's fees from Defendant;(ii)the judgment is equal to or less than the ti Defendant's last written offer of settlement,the Defendant shall be entitled to recover its costs,expenses and reasonable attorney's p fees from the PlaintifF(iii)the judgment is in between the Plaintiffs last written demand for settlement and the Defendant's last offer of settlement,then neither party shall recover any of its costs,expenses or attorney's fees from the other. 16-GOVERNING LAW AND SURVIVAL a. The law of the State of Missouri will govern the validity of these TERMS,their interpretation and performance. b. If any of the provisions contained in this AGREEMENT are held illegal, invalid' or unenforceable, the enforceability of the remaining provisions will not be impaired. Limitations of liability and indemnities will survive termination of this AGREEMENT for any cause. 0 2017 GEOTECHNOLOGY,INC. 3 of 4 P031019.01 17-SUCCESSORS AND ASSIGNS a. This AGREEMENT shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Neither party may assign its interests herein(unless assignee assumes in writing assignors obligations hereunder)without the prior written consent of the other party,which consent will not be unreasonably withheld. No assignment shall operate to relieve the assignor of its obligations under the AGREEMENT. 18-OTHER PREVISIONS a.: It is agreed that this AGREEMENT is entered into by the parties for the sole benefit of the parties to the AGREEMENT,and that nothing in the AGREEMENT,shall be construed to create a right or benefit for any third party. b!' Neither party shall hold the other responsible for damages or delay in performance caused by weather and other acts of Gad,strikes,lockouts, 1 accidents,or other events beyond the control of the other or the other's employees and agents. c; The titles used in this AGREEMENT are for general reference only and are not part of the AGREEMENT. 19-1E~UTLRE SERVICES a. All future services including, but not limited to, review of plans and specifications, construction monitoring, and post-construction work, rendered by GEOTECHNOILOGY at CLIENTS request for the project described in the PROPOSAL shall be conducted under the terms of this AGREEMENT. til-SIGNATURES a. The parties have read the foregoing, including any attachments thereto, understand completely the terns, and willingly enter into this AGREEMENT that will become effective on the date signed below by CLIENT. Cliebt Geoteeltnology,Inc. (Signature) . sem-- -- {Signature) By: (Print Name) By: Pat Donovan P.E. (Print Name) Position: Position: Branch Manager Date: Date: T October 25.2017 I , r 0 2017 GEOTECHNOLOGY,INC., 4 of 4 P031019.01 L i �ill I I-I ill 11, f E R Eql"HOOP1100 • • e e - ♦ •. - • • e e e • • ♦n e Participate in Development of the Expect the Unexpected Subsurface Exploration Plan. The nature of geotechnical engineering is such that planning Geotechnical engineering begins with the creation of an needs to anticipate the unexpected.During the design phase effective subsurface exploration plan.This proposal starts of a project,more or deeper borings may be required, the process by presenting an initial plan.While that plan additional tests may become necessary,or someone may consider the unique physical attributes of the site associated with your organization may request a service that and the improvements you have in mind,it probably was not included in the final scope.During the construction does not consider your unique goals,objectives,and risk phase,additional services maybe needed to respond quickly management preferences.Subsurface exploration plans that to unanticipated conditions.In the past,geotechnical are finalized without considering such factors presuppose engineers commonly did whatever was required to oblige that clients'needs are unimportant,or that all clients have their clients'representatives and safeguard their clients' the same needs.Avoid the problems that can stem from interests,tatting it on faith that their clients wanted them to such assumptions by finalizing the plan and other scope do so.But some,evidently,did not,and refused to pay for elements directly with the geotechnical engineer you feel is legitimate extras on the ground that the engineer proceeded best qualified for the project,along with the other project without proper authorization,or failed to submit notice in a professionals whose plans are affected by the geotechnical timely manner,or failed to provide proper documentation. engineer's findings and recommendations.If you have been What are your preferences?Who is permitted to authorize told that this step is unnecessary;that client preferences do additional geotechnical services on your project?What type of not influence the scope of geotechnical engineering service documentation do you require?To whom should it be sent? or that someone else can articulate your needs as well as When?How?By addressing these and similar issues sooner you,you have been told wrong.No one else can discuss your rather than later,you and your geotechnical engineer will be geotechnical options better than an experienced geotechnical prepared for the unexpected,to help prevent molehills from engineer,and no one else can provide the input you can, growing into mountains. Thus,while you certainly are at liberty to accept a proposed scope"as is,"recognize that it could be a unilateral scope Have Realistic Expectations; developed without.direct client/engineer discussion;that Apply Appropriate Preventives authorizing a unilateral scope will force the geotechnical The recommendations included in a geotechnical engineer to accept all assumptions it contains;that engineering report are not final,because they are based assumptions create risk.Manage your risk.Get involved. on opinions that can be verified only during construction. For that reason,most geotechnical engineering proposals offer the construction observation services that permit the geotechnical engineer of record to confirm that subsurface conditions are what they were expected to be,or to modify recommendations when actual conditions were not anticipated.An offer to provide construction observation is an offer to better manage your risk.Clients who do not _ Obtain Professional Assistance take advantage of such an offer;clients who retain a second To Deal with hold firm to observe construction,can create a high-risk"Catch- Diverse strategies can be applied during building design, 22"situation for themselves.The geotechnical engineer construction,operation,and maintenance to prevent of record cannot assume responsibility or liability for a significant amounts of mold from-growing on indoor I report's recommendations when another firm performs the surfaces.To be effective,all such strategies should be devised services needed to evaluate the recommendations'adequacy. for the express purpose of mold prevention,integrated into The second firm is also likely to disavow liability for the a comprehensive plan,and executed with diligent oversight recommendations;because of the substantial and possibly by a professional mold prevention consultant.Because uninsurable risk of assuming responsibility for services it just a small amount of water or moisture can lead to the 'did not perform.Recognize,too,that no firm other than the development of severe mold infestations,a number of mold geotechnical engineer of record can possibly have as intimate prevention strategies focus on keeping building surfaces dry, an understanding of your project's geotechnical issues.As While groundwater,water infiltration,and similar issues such,reliance on a second firm to perform construction may be addressed as part of the geotechnical engineering observation can elevate risk still more,because its personnel study described in this proposal,the geotechnical engineer may not have the wherewithal to recognize subtle,but who would lead this project is not a mold prevention sometimes critically important unanticipated conditions, consultant;none of the services being offered have been or to respond to them in a manner consistent with your designed or proposed for the purpose of mold prevention. goals,objectives,and risk management preferences. Have the Geotechnical Engineer Work with Realize That Geoenvironrnental Issues Have Other Design Professionals and Constructors :Not Been Covered Other design team members'misinterpretation of a The equipment,techniques,and personnel used to perform geotechnical engineering report has resulted in costly a geoenvironmental study differ significantly from those problems.Manage that risk by having your geotechnical used to perform a geotechnical study.Geoenvironmental engineer confer with appropriate members of the design services are not being offered in this proposal. The team before finalizing the scope of geotechnical service report that results will not relate any geoemironmental (as suggested above),and,again,after submitting the j findings,conclusions,or recommendations.Unanticipated report.Also retain your geotechnical engineer to review f environmental problems have led to numerous, pertinent elements of the design team members'plans ' project failures.If you have not yet obtained your own and specifications. geoenviromnental information,ask your geotechnical consultant for risk management guidance.Do not rely on Reduce the risk of unanticipated conditions claims that can an environmental report prepared for someone else. occur when constructors misinterpret or misunderstand the purposes of a geotechnical engineering report.Use appropriate language in your contract documents.Retain your geotechnical engineer to participate in prebid and preconstruction conferences,and to perform construction observation, Read Responsibility Provisions Closely Rely on Your Geotechnical Engineer Clients,design professionals,and constructors who do for Additional Assistance not recognize that geotechnical engineering is far less Membership in the Geoprofessional Business Association exact than other engineering disciplines can develop (GBA)exposes geotechnical engineers to a wide array of risk unrealistic expectations.Unrealistic expectations can —management techniques that.can be of genuine benefit to lead to disappointments,claims,and disputes.To help everyone involved with a construction project.Confer with a reduce the risk of such outcomes,geotechnical engineers GBA-member geotechnical engineer for more information, commonly include a variety of explanatory provisions'in Confirm a firm's membership in GBA by contacting GBA their proposals.Sometimes labeled"limitations,"many of directly or at its website. these provisions indicate where geotechnical engineers' p responsibilities bean and end,to help others recognize their o Am responsibilities and risks,thus to encourage more effective scopes of service.Read this proposal's provisions closely.Ask questions.Your geotechnical engineer should respond.fully and frankly, i i, GEOPROFESSIONAL BUSINESS SHWAV— ASSOCIATION 8811 Colesville Road/Suite G106,Silver Spring,MD 20910 Telephone:301/565-2733 Facsimile:301/589-2017 e-mail:info@geoprofessional.org www.geoprofessional.org Copyright 2015 by the Geoprofessional Business Association(GBA).Duplication,reproduction,copying,or storage of this document,in whole or in part, by any means whatsoever,is strictly prohibited,except with GBA's specific written permission.Excerpting,quoting,or otherwise extracting wording from this document is permitted only with the express written permission of GBA,and only for purposes of scholarly research or book review.Only GBA-Member Firms may use this document as a complement to or as an element of a geotechnical engineering proposal or similar document.Any other firm,individual,or entity that so uses this document without being a GBA-Member Firm could be committing negligent or intentional(fraudulent)misrepresentation.