SU0005900 SSCRPT - Laserfiche WebLink

Home Browse Search

R: t .ill d H � Standard Form of Agreement ti;Engage for Engineering Services Neil O.Anderson&Associates,Inc.(NOAA),Consultant THE AGREEMENT: This Agreement is made by and between NOAA,and Tony Ghio,Fairchild Ghio Limited Partnership,1229 Rosemarie Lane,Suite A,Stockton,CA 95207,hereinafter referred to as CLIENT.The Agreement between the parties consists ofthese TERMS,the attached PROPOSAL identified as Surface&Subsurface Contamination Report,APN 119-27040 and 41,2820 E.Florida/2245 Myran,Stockton,CA 95205,dated December 15,2005,and any exhibits or attachments noted in the PROPOSAL.Togetherthese elements will constitute the entire AGREEMENT t superseding any and all prior negotiations,correspondence,or agreements either written or oral. Any changes to this AGREEMENT must be mutually agreed to in writing. STANDARD OF CARE:The 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 NOAA,will be based solely on information available to NOAA NOAA is responsible for those data,interpretations,and recommendations,but will not be responsible for other parties'interpretations or use ofthe information developed. Services performed by NOAA,under this AGREEMENT are expected by the CLIENT to be conducted in a manner consistent with the level of care and skill ordinarily exercised by members ofthe geotechnical engineering profession practicing contemporaneously under similar conditions in the locality of the project. No other warranty,expressed or implied,is made. SITE ACCESS AND SITE CONDITIONS: CLIENT will grant or obtain free access to the site for all equipment and personnel necessary for NOAA,to perform the work set forth in this AGREEMENT. The CLIENT will notify any and all possessors ofthe project site that CLIENT has granted NOAA,free access to the site. NOAA,will take reasonable precautions to minimize damage to the site,but it is understood by CLIENT that,in the normal course of work,some damage may occur and the correction of such damage is not part of this AGREEMENT unless so specified in the PROPOSAL.The CLIENT is responsible for the accuracy of locations for all subterranean structures and utilities. NOAA,will take reasonable precautions to avoid known subterranean structures,and the CLIENT waives any claim against NOAA,and agrees to defend,indemnify,and hold,harmless from any claim or liability for injury or loss,including costs of defense,arising from damage done to subterranean structures and utilities not identified or accurately located. In addition,CLIENT agrees to compensate NOAA,for any time spent or expenses incurred by NOAA,in defense of any such claim with compensation to be based upon NOAA's prevailing fee schedule and expense reimbursement policy. SAMPLE DISPOSAL: NOAH,will dispose of all remaining soil and rock samples 60 days after submission of report covering those samples. Further storage or transfer of samples can be made at CLIENTs expense upon CLIENTS prior written request. k CONSTRUCTION MONITORING: If NOAA,is retained by the CLIENT to provide a site representative for the purpose of monitoring specific portions of the construction work as set forth in the I PROPOSAL,then this phrase applies.Forthe specified assignment,NOAA,will report observations and professional opinions to the CLIENT.No action of NOAA,or NOAA's site representative ranbe construed as altering any AGREEMENT between the CLIENT and others.NOAA,will report any observed work to the CLIENT which,in NOAA'sprofessional opinion,does not conform with plans and specifications. NOAA,has no right to rejector stop work of any agent ofthe CLIENT, Such rights are reserved solely for the CLIENT. Furthermore,NOAA's presence on site does not in any way guarantee the completion or quality of the performance of the work of any parry retained by the CLWNT to provide construction related services. NOAA,will not be responsible for and will not have control or charge of specific means,methods,techniques,sequences or procedures of construction selected by any agent or AGREEMENT of the CLIENT,or, safety precautions and programs incident thereto. BILLING AND PAYMENT:CLIENT will pay NOAA,,the lump sum amount indicated in the PROPOSAL or,if no lump sum amount is indicated,in accordance with the schedule of personnel and equipment charges,as shown in the PROPOSAL and its attachments. Invoices will be submitted to CLIENT by NOAH,and will be due and payable upon presentation. If CLIENT objects to all or any portion of any invoice,CLIENT will so notify NOAA,in writing with fourteen(14)calendar days ofthe 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. In the absence of written notification described above,the balance as stated on the invoice will be paid. Invoices are delinquent if payment has not been received within thirty(30)days from date of invoice. Client will pay an additional charge of 1%a(1.5)percent Per month(or the maximum percentage allowed by law,whichever is lower)on any delinquent amount,excepting any portion ofthe invoiced amount in dispute and resolved in favor o£CLtENT. Payment thereafter will first be applied to accrued interest and then to the principal unpaid amount.All time spent and expenses incurred(including any attorney's fees)in connection with collection of any delinquent amount will be paid by the CLIENT to NOAH,per NOAA's current fee schedules. In the event CLIENT fails to pay NOAA,within sixty(60)days after invoices are rendered, , CLIENT agrees that NOAH will have the right to consider the failure to pay NOAA's invoice as a breach of the AGREEMENT. TERMINATION: 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 the CLIENT suspends the work for more than three(3)months. In the event of termination,NOAA,will be paid for services performed prior to the date of termination plus reasonable termination expenses,including the cost of completing analyses,records and report necessary to document job status at the time of termination. RISKALLOCATION:There are a variety of risks which potentially affect NOAH,by virtue of entering into an AGREEMENT to perform professional engineering services on the CLIENTS behalf. One of these risks stems from NOAA's potential for hurrah error. In order for the CLIENT to obtain the benefit of a fee which includes a lesser allowance for dealing with NOAA's risks,the CLIENT agrees to limit NOAA's liability to the CLIENT and all other parties for claims arising out of NOAA's performance ofthe services described in the AGREEMENT. The total aggregate liability of NOAA,will not exceed$1,000,000.00 for professional acts,errors or omissions,and the CLIENT agrees to indemnify NOAA,for all liabilities in excess of the monetary limits established above. Limitations on liability and indemnities in this AGREEMENT are business understandings between the parties and shall applyto all the different theories ofrecovery.Including j breach of contractor warranty,tort including negligence,strict or statutory liability,or any other cause of action,except for willful misconduct or gross negligence. Parties means the CLIENT and NOAH,and their officers,employees,agents,affiliates and subcontractors. The parties also agree that the CLIENT will not seek damages in excess of the limitations indirectly through suits with other parties who may join NOAA,as a third-party defendant. UCLIENT prefers to have higher limits ofprofessional liability,NOAA,agrees to increase the aggregate limit,upto a maximum of$2,000,000,00 upon CLIENTS written request at the time of accepting our proposal,provided CLIENT agrees to pay an additional consideration of five percent of NOAA's total charges,or $200.00,whichever is greater.The additional charge for the higher liability limit is because ofthe greater risk assumed by NOAA,and is not a charge for additional professional liability insurance. Both CLIENT and NOAA,agree that they will not be liable to each other,under any circumstances,for special,consequential,or punitive damages arising out of or related to this AGREEMENT. DISCOVERY OF UNANTICIPATED IIAZARDOUS MATERIALS:CLIENT wan-ants that a reasonable effort to inform NOAA,of known or suspected hazardous materials on or near the project site has been made. Hazardous materials may exist at a site where there is no reason to believe they could or should be present. NOAA,and CLIENT agree that the discovery of unanticipated hazardous material constitutes a changed condition mandating a renegotiation of the scope of work or termination of services. NOAA,and CLIENT also agree that the discovery of unanticipated hazardous materials may make it necessary for NOAH,to take immediate measures to protect health and safety. CLIENT agrees to compensate NOAA.for any equipment decontamination or other costs incident to the discovery ofunanticipated hazardous waste. NOAA,agrees to notify CLIENT when unanticipated hazardous materials or suspected hazardous materials are encountered. CLIENT agrees to make any disclosures required by law to the appropriate governing agencies. CLIENT also agrees to hold NOAA,harmless for any and all consequences of disclosures made by NOAA,which are required by governing law. In the event the project site is not owned by CLIENT,CLIENT recognizes that it is the CLIENTS responsibility to inform the property owner of the discovery of unanticipated hazardous materials or suspected hazardous materials. Notwithstanding any other provision ofthe AGREEMENT,CLIENT waives any claim against NOAA, and to the maximum extent permitted bylaw,agrees to defend indemnify,and save.NOAA,harmless from any claim,liability,and/or defense costs for injury or loss arising from NOAA's discovery of unanticipated hazardous materials or suspected hazardous materials including any costs created by delay of Elie project and any cost associated with possible reduction ofthe property's value. CLIENT will be responsible for ultimate disposal of any samples secured by NOAA,which are found to be contaminated. DISPUTES RESOLUTION; All claims,disputes,and other matters in controversy between NOAH,and CLIENT arising out of or in any way related to this AGREEMENT will be submitted to "alternative dispute resolution"(ADR)such as mediation and/or arbitration,before and as a condition precedent to other remedies provided by law. If and to the extent CLIENT and NOAA,have agreed on methods for resolving such disputes,then such methods will be set forth in the"Alternative Dispute Resolution Agreement"which,if attached,is incorporated and made a part of this AGREEMENT. 1f a dispute at law arises related to the services provided under this AGREEMENT and that dispute requires litigation instead of ADR as provided above,then(1)the claim will be brought and tried in judicial jurisdiction of the court of the county where NOAA's principal place of business is located and CLIENT waives the right to remove the action to any other county or judicial jurisdiction,and(2)the prevailing party will be entitled to recovery of all reasonable costs incurred,including staff time,court costs,attorney's fees,and other claim related expenses. TEMU)-PARTY EXCLUSION: This AGREEMENT shall not create any rights or benefits to parries other than CLIENT and NOAA,except such other rights as may be specifically called for herein. GOVERNING LAW AND SURVIVAL: The law of the State of California will govern the validity of these TERMS,their interpretation and performance. If any ofthe provisions contained in this AGREEMENT are held illegal,invalid,or unenforceable,the enforceability ofthe remaining provisions will not be impaired. Limitations of liability and indemnities will survive termination of this AGREEMENT for any cause. The Parties have read the foregoing,understand completely the terms,and willingly enter into this AGREEMENT which will become effective on the date signed by the CLIENT below. Y le ,3 __!0 !wc. mej .--'-- Neil O.Anderson_ and Associates,Inc, CLIENT CONSULTANT Position f3y Position Date Date