HomeMy WebLinkAboutLouis Berger U.S. - Professional Services Agmnt-8/7/2017Please return this copy to.
City Clerk tk 'Finance Dept. ,
715 Mulberry St.
Waterloo. IA 50703
Professional Services Agreement (Environmental Studies) Page 1 of 10
Between City of Waterloo and Louis Berger U.S., Inc.
Project No.
This Agreement is made effective as of August 7, 2017, between City of Waterloo, [Client] having offices at Waterloo, Iowa, and
Louis Berger U.S., Inc., [Berger] a New York corporation, having its principal offices at 412 Mount Kemble Avenue, Morristown, New
Jersey, U.S.A., and having an office located at Kansas City, Missouri, Client and Berger are also referred to individually as a "Party"
and collectively as the "Parties".
Client has engaged Berger to provide services of professional engineers and other scientists in support of a National Register of
Historic Places Nomination for the Walnut Historic District [Project]
The Project is located at Waterloo [Site] lowa [State].
General Scope of the Assignment is as follows: An architectural re -survey of the Walnut Street neighborhood and a National
Register of Historic Places (NRNP) historic district nomination for the Walnut Street area.
In consideration of the mutual promises herein, Client and Berger agree that the terms and conditions of this Agreement are the
following:
1. SERVICES
1.1. Services. Berger shall provide the professional services [Services] generally described above and in detail in Exhibit 1,
incorporated and made part of this Agreement. Berger's obligations under this Agreement are solely for the benefit of
Client and no other party is intended to benefit or have rights hereunder.
1.2. Standard of Care. Berger shall perform the professional services under this Agreement at the level customary for
competent and prudent professionals performing such services at the time and place where the services are provided
[Standard of Care]. These services will be provided by licensed engineers and other professionals and individuals skilled in
other technical disciplines, as appropriate.
1.3. Instruments of Service. Berger is responsible for the professional quality, technical accuracy, timely completion, and the
coordination of all instruments ofits service including designs, drawings, specifications, reports [Service Instruments] and
other services provided under this Agreement.
1.4. Subcontractors. Any subcontractors and outside associates or consultants to be engaged by Berger under this Agreement
are limited to those Client specifically approves during the performance of this Agreement.
1.5. Services — Additional Services. If authorized in writing by Client, Berger shall furnish or obtain from others Additional
Services and shall be paid for by Client as indicated in Section 4 of this Agreement.
1.6. Hazardous Materials. Client acknowledges that Berger has played no part in the creation of any hazardous waste, pollution
sources, nuisance, or chemical or industrial disposal problem, if any, which may exist on or under the Site; and further,
acknowledges that Berger does not assume responsibilities of a generator, operator, transporter or an arranger in the
treatment, storage, disposal or transportation of waste as those terms are understood within the meaning of the Resource
Conservation and Recovery Act, or the Comprehensive Environmental, Response, Compensation and Liability Act or in
similar related State law,
2. CLIENT'S RESPONSIBILITIES
2.1. Client's Representative. Designate in writing a person to act as Client's representative under this Agreement. The Client
representative shall receive and examine documents submitted by Berger, interpret and define Client's policies and
decisions with respect to Berger's services for the Project, and render decisions and authorizations in writing promptly to
prevent unreasonable delay in the progress of Berger's services.
2.2. Project Criteria. Provide all criteria and full information as to Client's requirements for the Project.
2.3. Project Information. Assist Berger by placing at Berger's disposal all available information pertinent to the Project including
previous reports and any other data relative to the Project. These data may include (1) data prepared by others, including
borings, subsurface explorations, hydrographic surveys, and laboratory tests and inspections of samples, materials and
equipment, (2) appropriate professional interpretations of such data, (3) environmental assessments and impact
statements, (4) property, boundary, easement, right-of-way, topographic and utility surveys, (5) property descriptions,
zoning, deed and other land use restrictions, and (6) other necessary special data or consultations. Berger may rely on the
accuracy and completeness of the supplied data. Client shall identify to Berger discrepancies in the information that are
known or become known to Client, such as varying site conditions and/or plans.
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Professional Services Agreement (Environmental Studies) Page 2 of 10
Between City of Waterloo and Louis Berger U.S., Inc. Project No.
2.4. Access. Arrange for access to and make all provisions for Berger to enter upon public and private property as required for
Berger to perform services under this Agreement.
2.5. Notice. Give prompt written notice to Berger whenever Client observes or otherwise becomes aware of any development
that affects the scope or timing of Berger's services.
2.6. Permits. Furnish approvals and permits from governmental authorities or other entities having jurisdiction over the
Project and approvals from others as may be necessary for the timely completion of the Project.
2.7. Expert Advice. Provide legal, accounting, insurance or other necessary advisory services for the Project but outside of
Berger's competencies.
3. PERIOD OF SERVICES
3.1. Time of Performance. The parties anticipate the orderly and continuous progress of the Project within the period
described in Exhibit 1.
3.2. Delays. If this Agreement specifies periods of time for performance of services or specific dates by which services are to be
completed and if such periods or dates are exceeded through no fault of Berger, the compensation shall be subject to
adjustment that is equitable in the circumstances. Adjustment of the time for performance shall not automatically results
in adjustment of Berger's compensation.
3.3. Start of Performance. Berger will start the Services upon authorization by Client. Unless otherwise stated in this
Agreement, signing of this Agreement by both Client and Berger will constitute such authorization. If Client elects to
authorize Berger to proceed before signing this Agreement, Berger shall be paid as if the services had been performed after
both parties signed this Agreement.
3.4. Completion of Performance. For the purposes of final payment under Section 4, completion of Berger's services will occur
upon delivery of the final report or the completion date described above, as appropriate.
3.5. Force Majeure. If a force, event, or circumstance beyond Berger's control interrupts or delays Berger's performance, the
time of performance of the Services shall be equitably adjusted. Neither Client nor Berger shall be considered in default in
the performance of its obligations under this Agreement to the extent that the performance of any such obligation, except
the payment of money, is prevented or delayed by any cause, existing or future, which is beyond the reasonable control of
the affected party, or by strike, lockout or other labor difficulty, the settlement of which is not within the sole discretion of
the party involved.
4. PAYMENTS TO BERGER
4.1. For Services. Client shall pay Berger the amount stated in invoices issued in accordance with Exhibit 2 [Pricing Schedule] for
actual work performed and reimbursable expenses incurred during the period covered by the invoice. Invoices are due and
payable within 30 days after receipt by Client. Client's payments shall be in the form and shall be sent to the Berger
address as described in the invoices.
4.2. For Additional Services. Client shall pay Berger for additional services actually performed pursuant to Client's
authorization.
4.3. Litigation Services. If Client requires Berger's services either as a witness in, or support of, litigation or other dispute
resolution procedures between Client and a third party, Berger will provide such services in accordance with a pricing
schedule for litigation services.
4.4. Delay or Termination,
4.4.1. If Client delays the performance of, or payment for, services under this Agreement for more than 3 months for a
reason(s) other than Berger's fault, Berger may suspend performance until it receives payment in full for services ren-
dered and expenses incurred to the date of suspension.
4.4.2. If Client terminates this Agreement prior to completion of the Services, Berger shall be paid in full for services rendered
and expenses incurred to the date of termination, including reasonable demobilization and termination expenses.
4.5. Disputed Amounts. If Client disputes an item(s) or amount(s) contained in an invoice, Client agrees to pay the balance of
the undisputed invoiced amounts to Berger in accordance with Exhibit 2.
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Professional Services Agreement (Environmental Studies) Page 3 of 10
Between City of Waterloo and Louis Berger U.S., Inc. Project No.
4.6. Collection. Any reasonable attorneys' fees or other reasonable costs incurred by Berger in collection of amounts delinquent
by more than sixty (60) days shall be paid by Client.
4.7. Disputed Services. No payments will be made for Services not properly completed; or work not accepted by Client, until
such time as the Parties resolve the matter of the disputed Services. If Client disputes an item(s) or amount(s) contained in
a statement, Client agrees to pay the balance of the undisputed invoiced amounts in accordance with Berger's invoices. Any
contract price adjustments must be approved in writing by Client and Berger.
5. MISCELLANEOUS PROVISIONS
5.1. Changes. By written notice at any time, Client may change the Services, provided such changes are within the general
scope of the services contemplated by this Agreement. In such event, an equitable adjustment both in the compensation
for and time of performance of the Agreement shall be made in writing prior to Berger's performing the changed services.
5.2. Termination. This Agreement may be terminated by either Client or Berger for any reason whatsoever upon seven (7) days'
written notice. Berger shall be paid for all services rendered up to the point of termination.
5.3. confidentiality. Berger will hold secret and confidential all information designated by Client as confidential [Confidential
Information]. Berger will not reveal Confidential Information to a third party unless:
5.3.1. Client consents in writing;
5.3.2. the information is or becomes part of the public domain;
5.3.3. Berger lawfully possessed the information before receipt from Client;
5.3.4. applicable law, regulation, court order or an agency of competent jurisdiction requires its disclosure; or
5.3.5. failure to disclose the information would pose an imminent and substantial threat to human health or the envi-
ronment.
5.4. Service Instruments and Reuse. The Service Instruments furnished under this Agreement are the tangible results of
Berger's professional services for the Project. Berger shall retain ownership and property interests in the Service
Instruments. Client may make and retain copies for information and reference in connection with the Project by Client and
others; however, such service Instruments are not intended or represented to be suitable for reuse by Client or others for
modifications to the Project or on any other project. Any reuse without written verification or adaptation by Berger for the
specific purpose intended will be at Client's sole risk and without liability or legal exposure to Berger; and Client shall
indemnify and hold harmless Berger, its officers, directors, agents and employees from all claims, damages, losses and
expenses including attorney's fees arising out of or resulting therefrom. Any such verification or adaptation by Berger will
entitle Berger to further compensation at rates to be agreed upon by Client and Berger.
5.5. Computer Applications and Software. All computer applications and software shall be compatible with Client's
applications and standards and/or those required by Client. All computers used by Berger shall be equipped with anti-virus
software, All electronically stored data on Berger's network server shall have back-up no less often than daily.
5.6. Insurance. Berger will maintain insurance against the following risks during the term of the Agreement:
5.6.1. workers compensation in statutory amounts and employer's liability for Berger's employees' Project -related injuries or
disease;
5.6.2. general liability and automobile liability each in the amount of $1,000,000 for personal injury or property damage to
third parties which arises from Berger's performance under this Agreement; and
5.6.3. professional liability in the amount of $1,000,000 for legal obligations arising out of Berger's failure to meet the
Standard of Care.
5.7. Controlling Law. This Agreement shall be interpreted by the laws of the State without giving effect to the choice of law
rules therein.
5.8. Disputes. If a dispute or complaint [Dispute] arises concerning this Agreement, Client and Berger will negotiate a resolution
of the Dispute. Should negotiation be unsuccessful, up to three sessions of mediation of the Dispute by a mutually
acceptable third party shall be attempted; with the costs equally shared by both parties. Following the third meeting or
earlier if appropriate, the mediator shall report to the parties whether he/she believes the Dispute is resolvable through
mediation. At that point, the parties may end the mediation and adjudicate the Dispute. If adjudicated, the laws of the
State shall control both the action and the substantive issues unless required by law to be filed in a federal district court.
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Professional Services Agreement (Environmental Studies) Page 4 of 10
Between City of Waterloo and Louis Berger U.S., Inc.
Project No.
5.9. Liability. Berger's total liability to Client for any and all injuries, claims, losses, expenses, damages, or claim expenses arising
out of this agreement from any cause or causes shall be $100,000 or the total amount of Berger's fee for its Services,
whichever is greater. Such causes include but are not limited to Berger's negligent acts, errors or omissions, strict liability,
breach of contract or breach of warranty (expressed or implied). Neither Client nor Berger shall be liable to the other party
for any special, indirect or consequential damages, whether caused or alleged to be caused by their negligence, strict
liability, breach of contract or warranty under this Agreement.
5.10. Indemnification.
5.10.1. By Berger. To the fullest extent permitted by law, Berger shall indemnify and hold Client harmless from and against any
and all liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees and court costs) which
Client hereafter may suffer as the result of any claim, demand, action or property damage to the extent caused by the
negligent acts, errors, omissions, or willful misconduct of Berger. Berger shall not be liable to the extent that any
liability, loss, damage, costs, and expense arises or results from an act or omission, or negligence by Client.
5.10.2. By Client. Client acknowledges and agrees that Berger has not created or contributed to the creation or existence of
any hazardous or toxic waste, material, or substance, or any other type of environmental hazard or pollution (as those
terms are commonly understood or defined by applicable laws or regulations and collectively termed "Pollution" with
regard to this paragraph) in connection with the Project. In addition, the compensation to be paid Berger under this
Agreement is not commensurate with the risk of injury or loss which may be caused by Pollution. To the fullest extent
permitted by law, Client shall indemnify, defend and hold Berger harmless from and against any and all liabilities,
losses, damages, costs and expenses (including reasonable attorneys' fees and court costs) which Berger hereafter may
suffer as the result of resulting from the presence of at the Site or the release of Pollution onto or off the Site.
5.11. Site Safety. Berger's site responsibilities are limited solely to the activities of Berger and Berger's employees or consultants
on site. These responsibilities shall not be inferred by any party to mean that Berger has overall responsibility for site
safety.
5.12. Site Safety -Construction. If the Project site for which Berger is performing its scope of services is a construction site or
Client has, in any manner, retained contractors for construction -related work on its site, Client and Berger agree that safety
in, on, or about the site shall be the sole and exclusive responsibility of Client's contractor alone. The contractor's methods
of work performance, superintendence of the contractor's employees, and sequencing of construction shall also be the sole
and exclusive responsibilities of the contractor alone. Client warrants that: 1) The contractor's sole and exclusive site safety
responsibilities shall be clearly stated in Client's agreement with the contractor; 2) Client's agreement with its contractor
shall require the contractor to indemnify, defend, and hold Client and Berger harmless from any claim or liability for injury
or loss arising from Client's or Berger's alleged failure to exercise site safety responsibility; and 3) Client's agreement with
the contractor shall require the contractor to make Client and Berger additional insureds under the contractor's general
liability insurance policy, which insurance protection shall be primary protection for Client and Berger.
5.13. Notices. Written notices may be delivered in person or by certified mail, by facsimile, or by courier. Such notices shall be
effective upon the date of receipt by the party. Notices shall be delivered or sent to the designated representative of the
other party at the address(s) given below the signature block of this Agreement. An address may only be changed by
written notice.
5.14. Independent Contractor. Berger represents that it is an independent contractor and is not an employee of Client.
5.15. Integration. This Agreement represents the entire and integrated agreement between Client and Berger and supersedes all
prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written
instrument signed by both Client and Berger.
5.16. Waiver and Severability. A waiver or breach of any term, condition, or covenant by a party shall not constitute a waiver or
breach of any other term, condition or covenant. If any court of competent jurisdiction declares a provision of this
Agreement invalid, illegal, or otherwise unenforceable, the remaining provisions of the Agreement shall remain in full force
and effect
5.17. Captions. The captions in the Agreement are for the convenience of the parties and convey no rights or obligations upon
either of them.
6. EXHIBITS
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Professional Services Agreement (Environmental Studies) Page 5 of 10
Between City of Waterloo and Louis Berger U.S., Inc.
Project No.
6.1. Exhibits. The following Exhibits are attached to and made a part of this Agreement:
6.1.1. Exhibit 1. Scope of Services.
6.1.2. Exhibit 2. Fees and Payment Method
6.1.3. Exhibit 3. Additional Project -Specific Conditions
This Agreement is a valid and authorized undertaking of Client and Berger, The representatives of Client and Berger who have
signed below have been authorized to do so.
IN WITNESS WHEREOF, the parties hereto have executed this agreement effective as of date shown on the first page of this
Agreement
Cit of Waterloo
_ �(Louis Berger U.S., inc.
By:
Invame (Print): Quentin Hart
Title (Print): Mayor, City of Waterloo
ll_
J u., V/7 Il j
Notice 715 Mulberry Street
I Address: Waterloo, IA 50703
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Hope Luhman, RPA
Senior Vice President, Louis Berger U.S., Inc.
!
1412 Mount Kemble Avenue I
;Morristown, NJ 07962
!Attn: Legal Department
J
Professional Services Agreement (Environmental Studies) Page 6 of 10
Project No.
Between City of Waterloo and Louis Berger U.S., Inc.
EXHIBIT 1
SCOPE SERVICES
E.I - 1. Scope of Services;
1.1. The scope of services under this Agreement includes the following tasks:
Research Design: Louis Berger will develop a research design for the project outlining the appropriate research and survey
methodology to complete the NRHP nomination following Iowa State Historic Preservation Office (SHPO) and National Park Service
(NPS) guidelines.
Background Research: Upon approval of the research design, Louis Berger will conduct site-specific and contextual research to
provide historical data necessary to interpret each property within its broader context and evaluate it with regard to NRHP Criteria.
Historical resources that should contain information about the history of each building include deed records, abstracts, historical
photographs, local histories, Sanborn fire insurance maps, city directories, and newspapers. Repositories that will provide valuable
information include the Hans M. Chryst Archival Library at the Grout Museum of History and Science, Waterloo Public Library, Black
Hawk County Courthouse, and State Historical Society Library in Des Moines.
Resources consulted will include the 1992 survey of the Walnut Street Historic District by PHR Associates, for basic information on the
history of the neighborhood as well as individual resources, and Waterloo Factory City of Iowa; Survey of Architecture and History,
completed by Barbara Beving Long in 1986, for contextual information regarding the overall developmental history of the city and
the Walnut Street area, as well as information on typology for commercial buildings, residences, apartments, and double houses.
Louis Berger will draw upon other previous surveys/nominations, including the East High School NRHP nomination and the Part 1 tax
credit application for the KW WL building, as necessary to develop the historical narrative and description sections of the nomination.
The historic context for the NRHP nomination will be organized chronologically following major development periods in the history of
the neighborhood.
Architectural Survey: Louis Berger architectural historian Natalie Thomas and Research Analyst Emily Lenhausen will conduct the re-
survey of the Walnut survey area under the direction and oversight of Senior Architectural Historian Camilla Deiber. The survey will
include all 66 properties in the survey area: 44 residences, 19 commercial buildings, and three multi family complexes. We
understand that two churches (Walnut Street Baptist and Grace Methodist Episcopal Church) are already listed in the NRHP. The area
also includes public buildings such as the East High School, for which Ms. Deiber drafted an NRHP nomination in 2001 associated with
the Public Schools for Iowa MPD. Survey of these properties will consist of field examination, notation, and photography for any
property that is potentially eligible for listing in the NRHP individually or as a contributing resource in o historic district. Surveyors will
take representative photographs of these buildings and note any significant changes in integrity for the NRHP nomination.
Contextual views will be taken for the entire area. Louis Berger intends to use digital photographs that will conform to Iowa SHPO
Standards for Digital Photography. All photographs and associated material, such as CD-ROMs, will meet Iowa SI -IPO requirements
for NRHP nominations. Although no deliverable is required for this task, Louis Berger intends to deliver a summary of the survey
findings to the City that delineates all of the contributing and non-contributing resources within the boundary of the proposed
historic district.
NRNP Nomination: The NRHP nomination will be submitted digitally according to lowa SHPO Digital National Register Submission
standards and conform to guidelines in National Register Bulletin 16A: How to Complete the National Register Registration Form and
will be completed on NPS Form 10-900 (Rev. Oct 1990) OMB 1024-0018. As outlined in the RFP, Louis Berger will submit a draft
nomination to the SHPO and Waterloo Historic Preservation Commission (WHPC) concurrently for review. Louis Berger will address all
comments and submit the revised draft to SHPO by the August 1, 2018, deadline for presentation of the nomination at the October
12, 2018, State Nomination Review Committee (SNRC). Louis Berger will incorporate any revisions requested at the SNRC meeting
into the final NRHP nomination.
Public Meetings: Louis Berger will participate in two public meetings for the project in Waterloo, as suggested in the RFP, to explain
the nominating process and present the findings of the historical research/survey and the benefits of listing in the NRHP. PowerPoint
presentations will be developed in consultation with your office and the WHPC for each of these meetings.
E.I - 2. Definition and Schedule of Deliverables;
2.1.
TASK COMPLETION DATE
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Between City of Waterloo and Louis Berger U.S., Inc. Project No.
Research Design
Public Neighborhood Meeting
Research and Field Survey
Public Meeting
Draft Form Submitted to IA SHPO
and WHPC
Draft Fomi Comments from SHPO
and WHPC
Revised Draft Submitted to SHPO
Final Draft Submitted to SHPO for
SNRC
Final Public Meeting
Present Nomination to SNRC
2016; walnut survey contract
September 15, 2017
October/November 2017
October/November 2017
March/April 2018
April 2, 2018
May 2, 2018
July 16, 2018
August 1, 2018
September 2018
October 12, 2018
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Project No.
Between City of Waterloo and Louis Berger U.S., Inc.
EXHIBIT 2
Payment Method and Schedule
E.2-1. Payment Method
1.1. The Payment Method and Schedule consists of this page plus the following documents, attached and made part of this
Agreement:
1.1.1. The financial proposal previously submitted
1.1,2. Payment Schedule
E.2 - 2. Fees for Services
2.1. Lump Sum. For Services under Exhibit 1, Client shall pay Berger a lump sum of $ 20, 750.00
2.2. Payments on account of services rendered and for reimbursable expenses incurred shall be made according to the Payment
Schedule. No deductions shall be made from Berger's compensation on account of penalty, liquidated damages or other
sums withheld from payments to construction contractors, or on account of the cost of changes in the work other than
those for which Berger has been adjudged to be liable in accordance with the dispute resolution procedures in this
Agreement.
2.3. The fees shown above does not include all taxes, levies, fees, etc., Should any tax, levy, fee, etc., be claimed from Berger by
the local controlling revenue authority or any other government, it will be directly settled by Client on behalf of Berger.
2.4. In lump sum contracts, the quantities indicated, frequencies and/or locations of work (if any) presented in this contract are
approximate and are to be used for setting the contract price. Berger makes no guarantee as to the accuracy of these
quantities. The quantities may be minimal, increase, decrease, or be omitted for any reason (i.e., changing Client goals,
conditions, budgetary restrictions, etc.), with appropriate adjustment to the contract price, but without adjustment to unit
prices.
2,5. If Client fails to make any payment due Berger for services and expenses within thirty (30) days after receipt of Berger's
statement therefore, the amounts due shall bear interest, at 1.5% per month, from said thirtieth day.
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EXHIBIT 3
ADDITIONAL PROJECT -SPECIFIC CONDITIONS
E.3-1 Advisory Assignments.
1.1 Where a Scope of Services include assignments for advice, analysis or opinions by Berger to Client on certain engineering -
related scenarios, Berger does not accept any responsibility for damages, if any, that may result from decisions made or
actions taken by any third parties, based on our advice, analysis or opinions. Without Berger's specific permission to rely on
such advice, analysis or opinions, any use that a third party makes of Berger's advice, analysis or opinions will be the sole risk
of the third party.
E.3-2 Construction Costs And Change Orders
2.1 Construction Cost, The cost of constructing the Project ("Construction Cost"j means the total cost to Client of those portions
of the Project designed and specified by Berger. Construction Cost will not include Berger's compensation and expenses, the
cost of land, rights of way, or compensation for properties unless specified in Exhibit 1. Construction Cost will also not include
Client's legal, accounting, or insurance counseling services, or interest and financing charges incurred in connection with the
Project, or the cost of services to be provided by others unless otherwise specified in Exhibit 1.
2.2 Opinions of Cost. Berger has no control over the cost of labor, materials, equipment or services furnished by others, or over
the Contractor's methods of determining prices, or over competitive bidding or market conditions. Berger's opinion of
probable Construction Cost is made on the basis of Berger's experience and qualifications and represents Berger's judgment as
an experienced and qualified professional engineering firm, familiar with the construction industry. Berger does not
guarantee that proposals, bids or actual Project cost will not vary from Berger's opinions of probable Construction Cost.
2.3 Construction Change Orders. Client recognizes and expects that certain construction change orders may be required to be
issued as the result in whole or in part of imprecision, incompleteness, errors, omissions, ambiguities, or inconsistencies in the
drawings, specifications, and other design documentation furnished by Berger or in the other professional services performed
or furnished by Berger under this Agreement ("Covered Change Orders"). Accordingly, Client agrees not to make claim
directly or indirectly against Berger on the basis of professional negligence, breach of contract, or otherwise with respect to
the costs of approved Covered Change Orders unless the costs of such approved Covered Change Orders exceed 15% of
Construction Cost, and then only for an amount in excess of such percentage. Any responsibility of Berger for the costs of
Covered Change Orders in excess of such percentage will be determined on the basis of applicable contractual obligations and
the Standard of Care.
2.3.1 For purposes of this paragraph, the cost of Covered Change Orders will not include any costs that Client would have
incurred if the work in the Covered Change Order had been included originally without any imprecision, incompleteness,
error, omission, ambiguity, or inconsistency in the Contract Documents and without any other error or omission of Berger
related thereto, Nothing in this provision creates a presumption that, or changes the Standard of Care for determining if,
Berger is liable for the cost of Covered Change Orders in excess of the percentage of Construction Cost stated above or for
any other change order.
E.3-3 Site Safety -Construction.
3.1 If the Project site for which Berger is performing its scope of services is a construction site or Client has, in any manner,
retained contractors for construction -related work on its site, Client and Berger agree that safety in, on, or about the site shall
be the sole and exclusive responsibility of Client's contractor alone. The contractor's methods of work performance,
superintendence of the contractor's employees, and sequencing of construction shall also be the sole and exclusive
responsibilities of the contractor alone. Client warrants that: 1) The contractor's sole and exclusive site safety responsibilities
shall be clearly stated in Client's agreement with the contractor; 2) Client's agreement with its contractor shall require the
contractor to indemnify, defend, and hold Client and Berger harmless from any claim or liability for injury or loss arising from
Client's or Berger's alleged failure to exercise site safety responsibility; and 3) Client's agreement with the contractor shall
require the contractor to make Client and Berger additional insured's under the contractor's general liability insurance policy,
which insurance protection shall be primary protection for Client and Berger.
E.3-4 Site Conditions
4.1 Berger shall not be liable for: (i) damage or injury to any subterranean structures (including, but not limited to, utilities, mains,
pipes, tanks, and telephone cables) or any existing subterranean conditions; or the consequences of such damage or injury, if
with respect to this clause (i), such structures or conditions were unknown and were not identified or shown, or were
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incorrectly shown, in information or on plans furnished to or obtained by Berger in connection with the Services; (0) concealed
conditions encountered in the performance of the Services; (iii) concealed or unknown conditions in an existing structure at
variance with the conditions indicated by the Scope of Services; or (iv) unknown physical conditions below the surface of the
ground that differ materially from those ordinarily encountered and are generally recognized as inherent in work of the
character provided under this Agreement.
4.2 Geologic and soil formations are inherently random, and indeterminate in nature, and subject to change with time as a result
of natural or man-made processes, including water permeation. Accordingly, Berger cannot guarantee the results from
subsurface investigations to be a complete representation of actual Site conditions.
4.3 Client shall provide to Berger all plans, maps, drawing and other documents identifying the location of any subterranean
structures on the Site. Prior to location of any drilling or excavation below the ground surface, Berger shall obtain the
concurrence of the Client as to the location for such drilling or excavation.
4.4 Should: (i) concealed conditions be encountered in the performance of the Services; (ii) concealed or unknown conditions in
an existing structure be at variance with the conditions indicated by the Scope of Services or Work Authorization; or (iii)
unknown physical conditions below the ground differ materially from those ordinarily encountered and generally recognized
as inherent in work of the character provided under this Agreement; then the amount of this Agreement and/or time for
performance shall be equitably adjusted by change order upon claim by either Party made within twenty (20) days after the
first observance of the conditions.
E.3-5 Hazardous Materials
5.1 Client agrees that title to all types of hazardous or toxic waste, material, or substance originating at or removed from the Site
will remain in and with Client and that Client will not challenge said title by any means, including actions in state or federal
court or any other forum.
5.2 If this Agreement requires the containerization, transportation, or disposal of any hazardous or toxic wastes, materials or
substances, Berger is not, and has no authority to act as a generator, arranger, transporter, or disposer of any hazardous
materials or toxic wastes, materials or substances that may be found or identified on, at, or around the Site. In this regard,
Client and Berger agree as follows:
5.2.1 Berger will assist Client in obtaining the services of licensed hazardous materials contractors for the transportation and
disposal of all hazardous or toxic wastes, materials or substances. Client shall contract directly for those services.
5.2.2 Client will provide all required hazardous or toxic wastes, materials or substance generator numbers, signed manifests,
storage and treatment permits, and any permits or licenses required by local, state, or federal laws or regulations for the
generation, transportation, storage, treatment and/or disposal of any hazardous or toxic wastes, materials or substances.
E.3-6 Access To Site
6.1 During the term of this Agreement, Client shall grant to or cause to be made available to Berger reasonable and necessary
nonexclusive access to the Site and other Sites, as necessary, for purpose of allowing Berger to perform the Services and fulfill
its obligations under this Agreement. Berger shall comply with generally accepted safety procedures and all other safety
procedures that have been communicated to Berger or its Personnel by Client. if the Site is sold or otherwise conveyed to a
third party, Client shall immediately notify Berger if Client is unable to obtain necessary access within a timely manner. Should
Berger be obstructed or delayed in the commencement, performance or completion of the Work, without fault on its part, by
reason of not having full access to the Site, and then Berger will be entitled to an adjustment in compensation and/or an
extension in the completion time requirements.
2016; walnut survey contract