HomeMy WebLinkAboutVIII-11 Accept Proposal and Authorize Work - 2026 - 2027 Neighborhood Infrastructure Improvements Geotechnical InvestigationCity Council Memorandum
To: Mayor Fasbender & City Council Members
From:Cody Mathisen –City Engineer
Date:August 4, 2025
Item:Accept Proposal and Authorize Work –2026 & 2027 Neighborhood Infrastructure Improvements
Geotechnical Investigation
Council Action Requested:
The Council is requested to authorize the Engineering Department to enter a contract with Braun
Intertec for the purpose of investigating subsurface conditions for the proposed 2026 and 2027
Neighborhood Infrastructure Improvement Projects.
Background Information:
On June 16, 2025,the City Council authorized the Engineering Department to begin collecting field data
as part of the feasibility analysis for the 2025 Neighborhood Infrastructure Improvements Project.
Geotechnical investigation is a key component of this data collection process as it enables staff to make
informed decisions on the existing conditions of these roadways and the corrections necessary to
improve them.
As noted at the June 16 meeting, both the scope and timing of the 2026 and 2027 projects may shift
based on budget constraints and Council direction. Regardless of project timing, these project areas
are contiguous and therefore combining the analysis for both years saves on overall costs.Furthermore,
the data collected will stay applicable whenever the project can take place.
Two proposals were solicited from qualified vendors to provide geotechnical investigation services as
well as an accompanying report of recommendations. A summary of the proposals provided are as
follows:
•Braun Intertec –$32,497
•WSB –$84,317
After review of these proposal, Braun Intertec provided the best value to perform all services requested.
Braun Intertec has completed several geotechnical investigations for City infrastructure projects in the
past and is well qualified to complete this work.
Financial Impact:
The $32,497 cost is within the anticipated administrative budget for the prospective 2026 and 2027
projects. If the projects move forward to construction, funding will be sourced from bonded debt,
enterprise funds, and special assessments
Attachments:
•Map –Draft 2026 and 2027 Neighborhood Infrastructure Improvement Projects
•Proposal –Braun Intertec -Geotechnical Investigation of 2026 and 2027 Neighborhood Projects
VIII-11
VIII-11
N DRAFT 2026-2027 Neighborhood Infrastructure Improvements
Project Area Map
2026 Project 2027 Project ^wHaStingS
★Note:Exact project limits and scope are subject to change m.nnesota
July 21, 2025 Proposal QTB219012
Cody Mathisen, PE
City of Hastings
1225 Progress Drive
Hastings, MN 55033
Re:Proposal for a Pavement and Geotechnical Evaluation
2026-2027 Infrastructure Improvements
Pleasant Drive and 4th Street
Hastings, Minnesota
Dear Mr. Mathisen:
Braun Intertec Corporation (Braun Intertec)submits this proposal to complete a pavement and geotechnical
evaluation for 2026-2027 Infrastructure Improvements at the referenced site.
Project Information
Per the RFP provided by you and dated July 9, 2025,we understand the proposed project will include
improvements to various city streets as part of the City’s Street Capital Improvement Plan. The
improvements are planned for 2026 and 2027 and will likely consist of either complete reconstruction or
full-depth reclamation (FDR)as depicted in Figure 1, which was provided by the City. We understand as part
of the planned improvements, some underground utility repairs of water main and sanitary sewer and curb
repairs will also be performed.
It was requested that we perform soil borings, falling weight deflectometer (FWD) testing, ground penetrating
radar (GPR) testing, pavement coring and hand auger borings.
VIII-11BRAUN
INTERTEC
651.487.3245 1826 Buerkle Road,White Bear Lake,MN 55110 braunintertec.com
City of Hastings
2026-2027 Infrastructure Improvements
Proposal QTB219012
July 21, 2025
Braun Intertec Page 2
Figure 1. Planned Improvements
VIII-11
DRAFT 2026-2027 Neighborhood Infrastructure Improvements
Project Area Map
2026 Project 2027 Project
'Note:Exact projectlimits and scope are subject to change
^HastingsJ"MINNKWTA^
City of Hastings
2026-2027 Infrastructure Improvements
Proposal QTB219012
July 21, 2025
Braun Intertec Page 3
Purpose
The purpose of our geotechnical evaluation will be to characterize subsurface geologic conditions at
selected boring locations, evaluate their impact on the project, and provide geotechnical recommendations
for the design and construction of the streets.The purpose of GPR, pavement coring, hand auger borings,
and FWD testing will be to provide existing inplace structural information for streets planned for FDR.
Scope of Services
We propose the following tasks to help achieve the stated purpose. If we encounter unfavorable or
unforeseen conditions during the completion of our tasks that lead us to recommend an expanded scope of
services, we will contact you to discuss the conditions before resuming our services.
Site Access
Based on the map provided,it appears that the site is accessible to a truck drill rig. We assume there will be
no cause for delays in accessing the exploration locations. We are not including tree clearing, debris or
obstruction removal, grading of navigable paths, or snow plowing.
Depending on access requirements, ground conditions or potential utility conflicts, our field crew may alter
the exploration locations from those proposed to facilitate accessibility.
Our drilling activities may also impact the vegetation and may rut the surface to access boring locations.
Restoration of vegetation and turf is not part of our scope of services.
Staking
We will stake prospective subsurface exploration locations, at locations selected by you, and obtain surface
elevations at those locations using GPS (Global Positioning System) technology. In order to link the GPS data
to an appropriate reference, we request that you provide CAD files indicating location/elevation references
appropriate for this project, or give us contact information for the consultant that might have such
information.
Utility Clearance
Prior to drilling, we will contact Gopher State One Call and arrange for notification of the appropriate utility
vendors to mark and clear the exploration locations of public underground utilities. You, or your authorized
representative, are responsible to notify us before we begin our work of the presence and location of any
underground objects or private utilities that are not the responsibility of public agencies.
VIII-11
City of Hastings
2026-2027 Infrastructure Improvements
Proposal QTB219012
July 21, 2025
Braun Intertec Page 4
Traffic Control
Our work will be performed within the drive lanes. Based on the reported traffic volumes, which vary between
3,000 and 6,200 vehicles per day, protection of our drilling crews requires warning signs and flaggers that will
alert motorists to our work within the roadway. We are including fees for a subcontractor to provide three
days of flagging in our scope of services.
Falling Weight Deflectometer (FWD) Testing and Analysis
On street areas planned for FDR, we will perform non-destructive FWD testing with a Dynatest FAST FWD.
The FWD is a non-destructive testing device specifically designed for evaluating pavements and operates by
measuring pavement surface deflections from an applied wheel-simulating impulse load. Four impulse
loads (two at 6,000 lbs and two at 9,000 lbs) will be applied at each test point using a testing rate of
approximately one test every 200 feet. Testing will be performed in both directions of travel.
Deflection data will be utilized to estimate effective R-values, pavement structural capacity, effective GE,
and required overlay thicknesses.Furthermore, the FWD data will assist in the discussion of the planned
repair, as well as assisting in identifying areas where possible soil corrections may be warranted.
Ground Penetrating Radar (GPR) Testing
As requested, we will perform GPR testing on street areas planned for FDR. GPR data provides a continuous
estimate of pavement layer thicknesses and will be performed in both travel direction. GPR measurements
will be tied to GPS coordinates for mapping and reference purposes.
An air-coupled GPR unit can be expected to penetrate approximately 2 feet under ideal conditions, and is
capable of detecting differentiation between bituminous pavement layers and underlying aggregate base
layers, if present.
Data obtained from the GPR testing will be used in the analysis of FWD data and will also be used to assist
with the planned FDR repair recommendations.
Pavement Coring and Hand Auger Borings
As requested, we will perform a total of 8 pavement cores and hand auger borings on streets planned for FDR
(three will be performed on 4th Street and five will be performed on Pleasant Drive).Pavement cores and hand
auger borings will be used to confirm and calibrate the GPR data and to help characterize the in-place
pavement layer thicknesses.
The cores will be submitted to our lab for total thickness measurements and will be examined for any
material deficiencies. The cores will be retained for any additional laboratory testing that may be useful.
VIII-11
City of Hastings
2026-2027 Infrastructure Improvements
Proposal QTB219012
July 21, 2025
Braun Intertec Page 5
Penetration Test Borings
We propose to drill a total of 26 standard penetration test (SPT) borings for the project. Table 1 provides a
summary of the proposed boring depths. We will perform continuous sampling to a depth of 5 feet and at
2 1/2-foot vertical intervals to the termination depths.
Table 1. Summary of Proposed Borings
Quantity Depth
(ft)Total Depth (ft)
5 10 50
13 14 182
3 16 48
3 18 54
2 20 40
Total
26 374
We will collect bag samples from the auger cuttings for laboratory testing.
If the intended boring depths do not extend through unsuitable material, we will extend the borings at least 5
feet into suitable material at greater depths. The additional information will help evaluate such issues as
excavation depth and consolidation settlement, among others. If we identify a need for deeper (or additional)
borings, we will contact you prior to increasing our total estimated drilled footage and submit a Change Order
summarizing the anticipated additional effort and the associated cost, for your review and authorization.
Groundwater Measurements
If the borings encounter groundwater during or immediately after drilling of each boring, we will record the
observed depth on the boring logs.
MDH Sealing Record
We are planning the deepest borings to be at least 15 feet and less than 25 feet. Therefore, the Minnesota
Statutes require us to complete a Sealing Record after our completion of the borings. Our proposal includes
the fees for the MDH Sealing Record.
In the event we extend our borings to a depth of 25 feet or greater, the MDH requires us to complete and
submit a Sealing Notification Form for the project. The submission of the Sealing Notification Form will
require a signature from the property owner (or agent). If we extend our borings to a depth of 25 feet or
greater, we will forward on to you a copy of the form for signature and increase our total fees by $100.
VIII-11
City of Hastings
2026-2027 Infrastructure Improvements
Proposal QTB219012
July 21, 2025
Braun Intertec Page 6
Borehole Abandonment
We will backfill our exploration locations immediately after completing the drilling at each location.
Minnesota Statutes require sealing temporary borings that are 15 feet deep or deeper. Based on our
proposed subsurface characterization depths, we will seal 142 linear feet with grout.
The attached Project Proposal shows the fees associated with the sealing.
Upon backfilling or sealing exploration locations, we will fill holes in pavements with a temporary patch.
Sealing boreholes with grout will prevent us from disposing of auger boring cuttings in the completed
boreholes. Unless you direct us otherwise, we intend to thin-spread the cuttings around the boreholes. If we
cannot thin-spread cuttings, we will put them in a container left on site. We can provide off-site disposal of
the cuttings for an additional fee.
Over time, subsidence of borehole (core) backfill may occur, requiring releveling of surface grades or
replacing bituminous patches. We are not assuming responsibility for releveling or re-patching after we
complete our fieldwork.
Sample Review and Laboratory Testing
We will return recovered samples to our laboratory, where a geotechnical engineer will visually classify and
log them. To help classify the materials encountered and estimate the engineering properties necessary to
our analyses, we anticipate performing 15 moisture content tests, 8 mechanical analyses (through a #200
sieve only), and 2 organic content tests.
We will determine the actual laboratory testing for the project depending on the encountered subsurface
conditions. If we identify a laboratory testing program that exceeds the budget included in this proposal but
provides additional value to the project, we will request authorization for the additional fees through a
Change Order.
Engineering Analyses
We will use data obtained from our geotechnical and pavement evaluation to perform engineering analyses
related to pavement design and performance.
Report
We will prepare a report including:
▪A CAD sketch showing the exploration locations.
▪Results of FWD and GPR analysis, including graphical data.
▪Results of pavement coring and hand auger borings, as well as photographs of the pavement cores.
VIII-11
City of Hastings
2026-2027 Infrastructure Improvements
Proposal QTB219012
July 21, 2025
Braun Intertec Page 7
▪Logs of the Borings describing the materials encountered and presenting the results of our
groundwater measurements and laboratory tests.
▪A summary of the subsurface profile and groundwater conditions.
▪Discussion identifying the subsurface conditions that will impact design and construction.
▪Discussion regarding the reuse of on-site materials during construction.
▪Recommendations for preparing pavement subgrades, and the selection, placement, and
compaction of fill.
▪Recommendations for repair and construction of the streets, including recommended reclamation
depths where applicable, pavement design thicknesses and materials. We understand the streets
are to be designed to 10 tons and that recommendations related to utilities are to be included.
We will only submit an electronic copy of our report to you unless you request otherwise. At your request, we
can also send the report to additional project team members.
Schedule
We anticipate performing our work according to the following schedule.
▪FWD and GPR testing – within about two weeks of project authorization
▪Pavement coring and hand auger borings – within about three weeks of project authorization
▪Drill rig mobilization – we have tentatively scheduled drilling to start on August 22, 2025 and will
move this date up if possible
▪Field exploration for drilling – about 3 days on site to complete the work
▪Classification and laboratory testing – within 1 to 2 weeks after completion of field exploration
▪Final report submittal – we understand the final report is to be provided by September 30, 2025.
If we cannot complete our proposed scope of services according to this schedule due to circumstances
beyond our control, we may need to revise this proposal prior to completing the remaining tasks.
Fees
We will furnish the services described in this proposal on a time and materials basis for an estimated fee of
$32,497, which includes $8,400 in traffic control fees. We have included a breakdown of the costs as an
attachment to this proposal.
Our work may extend over several invoicing periods. As such, we will submit partial progress invoices for
work we perform during each invoicing period.
VIII-11
City of Hastings
2026-2027 Infrastructure Improvements
Proposal QTB219012
July 21, 2025
Braun Intertec Page 8
General Remarks
We based the proposed fee on the scope of services described and the assumption that you will authorize
our services within 30 days and that others will not delay us beyond our proposed schedule.
We include the Braun Intertec General Conditions, which provide additional terms and are a part of our
agreement. To accept this proposal and authorize us to proceed, please sign and return it to us in its entirety.
We appreciate the opportunity to present this proposal to you. We will be happy to meet with you to discuss
our proposed scope of services further and clarify the various scope components.
To have questions answered or schedule a time to meet and discuss our approach to this project further,
please contact Amy Grothaus at 651.261.7122 or agrothaus@braunintertec.com.
Sincerely,
Braun Intertec Corporation
Amy J. Grothaus, PE
Senior Manager, Senior Engineer
Christopher R. Kufner, PE
Associate Director, Principal Engineer
Attachments:
Project Proposal
General Conditions
The proposal is accepted, and Braun Intertec is
authorized to proceed.
_____________________________________________
Authorizer’s Firm
_____________________________________________
Authorizer’s Signature
_____________________________________________
Authorizer’s Name (please print or type)
_____________________________________________
Authorizer’s Title
_____________________________________________
Date
VIII-11
Client:Service Description:Work Site Address:
4th Street and Pleasant Drive
Hastings, MN
City of Hastings
Cody Mathisen
101 4th St E
Hastings, MN 55033
(651) 480-2350
Geotechnical and Pavement Evaluation
Description Quantity Units Unit Price Extension
Phase 1 Geotechnical Evaluation
Activity 1.1 Site Layout - Staking - Utility Clearance - CADD $1,427.00
205 Site layout and utility clearance 6.00 Hour 115.00 $690.00
288 Project Assistant 1.00 Hour 95.00 $95.00
5099 Trimble R8 Rover (horizontal and vertical), per hour 6.00 Each 76.00 $456.00
1862 DRIL Trip Charge 1.00 Each 50.00 $50.00
371 CADD/Graphics Operator 1.00 Hour 136.00 $136.00
Activity 1.2 Drilling Services $13,168.00
9000 Truck Mounted Drilling Services, per hour 30.00 Each 420.00 $12,600.00
1029 Standby time, per hour Each 420.00 $.00
9730 Grout with bentonite, materials per foot 142.00 Each 4.00 $568.00
Activity 1.3 Geotechnical Soil Tests $1,338.00
1152 Moisture content (ASTM D 2216), per sample 15.00 Each 26.00 $390.00
1166 200 wash (ASTM C 117), per sample 8.00 Each 94.00 $752.00
1174 Organic content (ASTM D 2974), per sample 2.00 Each 98.00 $196.00
Activity 1.4 Traffic Control $8,400.00
SUB Subcontractor - Traffic Control (assumes flaggers for 3 days)3.00 Each 2,800.00 $8,400.00
Phase 1 Total:$24,333.00
Phase 2 Pavement Evaluation
Activity 2.1 Falling Weight Deflectometer $820.00
1600 FWD/GPR Mobilization, per mile 70.00 Each 1.00 $70.00
1805 FWD Equipment Fee, per hour 3.00 Each 130.00 $390.00
382 FWD Technician 3.00 Hour 120.00 $360.00
Activity 2.2 Ground Penetrating Radar $480.00
1600 FWD/GPR Mobilization, per mile 70.00 Each 1.00 $70.00
1804 GPR Equipment Fee, Roadway, per hour 2.00 Each 85.00 $170.00
383 GPR Technician 2.00 Hour 120.00 $240.00
Activity 2.3 Pavement Coring and Hand Auger Borings $1,235.00
1862 UTIL Trip Charge 1.00 Each 50.00 $50.00
1400 Coring Equipment and Core Barrel Wear 1.00 Each 185.00 $185.00
1555 Bituminous patch material, per core 8.00 Each 15.00 $120.00
252 Coring & Hand Auger Borings, two person 4.00 Hour 220.00 $880.00
Phase 2 Total:$2,535.00
Phase 3 Engineering
Activity 3.1 Evaluation/Analysis/Reporting $5,629.00
Page 1 of 207/21/2025 09:24 AM
Project Proposal
QTB219012
City of Hastings 2026-2027 Improvement Project
VIII-11BRAUN
INTERTEC
the science you build on
Proposal Total:$32,497.00
138 Project Assistant 5.00 Hour 95.00 $475.00
126 Project Engineer 10.00 Hour 180.00 $1,800.00
371 GIS/CAD Specialist II 1.00 Hour 136.00 $136.00
128 Senior Engineer 10.00 Hour 220.00 $2,200.00
125 Project Control Specialist 2.00 Hour 140.00 $280.00
130 Principal Engineer 3.00 Hour 246.00 $738.00
Phase 3 Total:$5,629.00
Page 2 of 207/21/2025 09:24 AM
Project Proposal
QTB219012
City of Hastings 2026-2027 Improvement Project
VIII-11RAUN
INTERTEC
the science you build on
Rev. 2024-11-04 Page 1 of 2
BRAUN INTERTEC GENERAL CONDITIONS
SECTION 1: AGREEMENT
1.1 Agreement. This agreement consists of these General Conditions and the
accompanying written proposal or authorization (“Agreement”). This Agreement is the
entire agreement between Consultant and Client and supersedes all prior negotiations, representations or agreements, either written or oral.
1.2 Parties to the Agreement.The parties to this Agreement are the Braun Intertec entity (“Consultant”) and the client (“Client”) as described in the accompanying written
proposal or authorization.Consultant and Client may be individually referred to as a
Party or collectively as the Parties.
SECTION 2: SCOPE OF SERVICES
2.1 Services. Consultant will provide services (“Services”) in connection with the project (“Project”) which are specifically described in this Agreement. Clientunderstands and agrees that Consultant’s Services are limited to those which are
expressly set forth in this Agreement.
2.2 Additional Services. Any Services not specifically set forth in the Agreement constitute “Additional Services.” Additional Services must be agreed upon in writing bythe Parties prior to performance of the Additional Services and may entitle Consultant to additional compensation andschedule adjustments. Additional compensation will be based upon Consultant’s then current rates and fees.
SECTION 3: PERFORMANCE OF SERVICES
3.1 Standard of Care. Consultant will perform itsprofessional Services consistent with
the degree of care and skill exercised by members of Consultant’s profession performing under similar circumstances at the same time and in the same locality in which the professional Services are performed.CONSULTANT DISCLAIMS ALL STATUTORY, ORAL, WRITTEN, EXPRESS, AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
PERFORMANCE OF SERVICES IN A GOOD AND WORKMANLIKE MANNER.
3.2 Written Reports and Findings. Unless otherwise agreed in writing, Consultant’sfindings, opinions, and recommendations will be provided to Client in writingand may be delivered via electronic format. Client agrees not to rely on oral findings, opinions, or recommendations.
3.3 Observation or Sampling Locations. Locations of field observations or sampling
described in Consultant’s report or shown on Consultant’s sketches reference Project
plans or information provided by others or estimates made by Consultant’spersonnel.
Consultant will not survey, set, or check the accuracy of those points unless Consultant accepts that duty in writing. Client agrees that such dimensions, depths, or elevations are approximations unless specifically stated otherwise in the report. Clientacceptsthe inherent risk that samples or observations may not be representative of items not sampled or seen and further that site conditions may vary over distance or change over
time.
3.4 Project Site Information. Client will provide Consultant with prior environmental, geotechnical and other reports, specifications, plans, and information to which Client has access about the Project site and which are necessary for Consultant to carry out Consultant’s Services. Client agrees to provide Consultant with all plans, changes in
plans, and new information as to Project site conditions until Consultant has completed
its Services.
3.5 Subsurface Objects. To the extent required to carry out Consultant’s Services,
Client agrees to provide Consultant, in a timely manner, with information that Client has regarding buried objects at the Project site. Consultant will not be responsible for locating buried objects or utilities at the Project site unless expressly set forth in this
Agreement, or expressly required by applicable law.Client agrees to hold Consultant
harmless, defend, and indemnify Consultant from claims, damages, losses, penalties
and expenses (including attorney fees) involving buried objectsor utilities that were not
properly marked or identified or of which Client had or should have had knowledge but did not timely notify Consultant or correctly identify on the plans Client or others furnished to Consultant.Consultant, from time to time, may hire a third party to locate underground objects or utilities and,unless otherwise expressly stated in this
Agreement, such action shall be for the sole benefit of Consultant and in no way will
alleviate Client of its responsibilities hereunder.
3.6 Hazardous Materials.Client will notify Consultant of any knowledge or suspicion of the presence of hazardous or dangerous materials present on any Project site or in anysampleor material provided to Consultant. Client agrees to provide Consultant with information in Client’s possession or control relating to such samples or materials. If
Consultant observes or suspects the presence of contaminants not anticipated in this
Agreement, Consultant may terminate Services without liability to Client or to others,
and Client will compensate Consultant for fees earned and expenses incurred up to the
time of termination.
3.7 Supervision of Others. Consultant shall have no obligation to supervise or direct Client’s representatives, contractors, or other third parties retained by Client. Consultant has no authority over or responsibility for the means, methods, techniques,
sequences, or procedures of construction selected or used by Client, Client’s
representatives, contractors, or other third parties retained by Client.
3.8 Safety. Consultant will provide a health and safety program for its employees as well
asreasonablepersonal protective equipment(“PPE”) typical forthe performance of the Services provided by this Agreement and as required by law. Consultant shall be entitled to compensation for all extraordinary PPE required by Client. Client will provide, at no cost to Consultant,appropriate Project site safety measures which are necessary for
Consultant to perform its Services at the Project location or work areas in connection
with the Project. Consultant’semployees are expressly authorized by Client to refuse to
work under conditions that may, in an employee’s sole discretion,be unsafe.Consultant shall have no authority over or be responsible for the safety precautions and programs,or for security,at the Project site (except with respect to Consultant’s own Services and those of its subconsultants).
3.9 Project Site Access and Damage. Client will provide or ensure access to the site.
In the performance of Services some Project site damage is normal even when due care
is exercised. Consultant will use reasonable care to minimize damage to the Project
site. Unless otherwise expressly stated in this Agreement, the cost of restoration for such damage has not been included in the estimated fees and will be the responsibility of the Client.
3.10 Monitoring Wells. To the extent applicable to the Services, monitoring wells are Client’sproperty, and Client isresponsible for monitoring well permitting, maintenance,
and abandonment unless otherwise expressly set forth in this Agreement.
3.11 Contaminant Disclosures Required by Law.Clientagreesto make all disclosures related to the discovery or release of contaminants that are required by law. In the event Client does not own the Project site, Client acknowledges that it is Client’s duty to inform the owner of the Project site of the discovery or release of contaminants at the site. Clientagreesto hold Consultantharmless, defend, and indemnify Consultantfrom
claims, damages, penalties, or losses and expenses, including attorney fees, related to
Client’s failure to make any disclosure required by law or for failing to make the
necessary disclosure to the owner of the Project site.
SECTION 4: SCHEDULE
4.1 Schedule. Consultant shall complete its obligations within a reasonable time and shall make decisions and carry out its responsibilities in a manner consistent with the Standard of Care. Specific periods of time for rendering Services or specific dates by
which Services are to be completed are provided in this Agreement.If Consultant is
delayed in the performance of the Services by actions, inactions, or neglect of Client or others for whom Client is responsible, by changes ordered in the Services, or by other causes beyond the control of Consultant, including force majeure events, then the time for Consultant’s performance of Services shall be extended and Consultant shall receive payment for all expenses attributable to the delay in accordance with
Consultant’s then current rates and fees.
4.2 Scheduling On-Site Observations or Services. To the extent Consultant’s Services
require observations, inspections, or testing be performed at the Project site, Client understands and agrees that Client, directly or indirectly through its authorized representative, has the sole right and responsibility to determine and communicateto Consultant the scheduling of observations, inspections, and testing performed byConsultant. Accordingly, Client also acknowledges that Consultant bears no
responsibility for damages that may result because Consultant did not perform such
observations, inspections, or testing that Client failed to request and schedule.Client understands that thescheduling of observations, inspections, or testing will dictate the time Consultant’s field personnel spend on the jobsite and agrees to pay for all services provided by Consultant due to Client’s scheduling demands in accordance with Consultant’s then current rates and fees.
SECTION 5: COST AND PAYMENT OF SERVICES
5.1 Cost Estimates. Consultant’s price or fees provided for in this Agreement are an estimate and are not a fixed amount unless otherwise expressly stated in this Agreement. Consultant’s estimated fees are based upon Consultant’s experience, knowledge, and professional judgment as well as information available to Consultant at the time of this Agreement. Actual costsmay varyand are not guaranteed or warrantied.
5.2 Payment.Consultant will invoice Client on a monthly basis for Services performed.
Client will pay for Services as stated in this Agreement together with costs for Additional
Services or costs otherwise agreed to in writingwithin thirty (30) days of the invoice date. Unless otherwise stated in thisAgreement or agreed to in writing, Consultant’s costs for all services performed will be based upon Consultant’s then current rates, fees, and charges. No retainage shall be withheld by Client. All unpaid invoices will incur an
interest charge of 1.5% per month or the maximum allowed by law.
5.3 Other Payment Conditions.Consultant will require Client credit approval and
Consultant may require payment of a retainer fee. Client agrees to pay all applicable taxes.Client’sobligation to pay for Services under this Agreement is not contingent on Client’s ability to obtain financing, governmental or regulatory agency approval, permits, final adjudication of any lawsuit, Client’ssuccessful completion of any project,
receipt of payment from a third party, or any other event.
5.4 ThirdParty Payment.Provided Consultant has agreed in writing, Client may request
Consultant to invoice and receive payment from a third party for Consultant’s Services.
Consultant, in its sole discretion, may also require the third party to provide written acceptance of all terms of this Agreement. Neither payment to Consultant by a third party nor a third party’s written acceptance of all terms of this Agreement will alter Client’s rights and responsibilities under this Agreement. Client expressly agrees that
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BRAUN INTERTEC
Rev. 2024-11-04 Braun Intertec General Conditions Page 2of 2
the Agreement contains sufficient considerationnotwithstanding Consultant being paid
by athird party.
5.5 Non-Payment. If Client does not pay for Services in full as agreed, Consultant may retain work not yet delivered to Client and Client agrees to return all Project Data (as defined in this Agreement)that may be in Client’s possession or under Client’s control.
If Client fails to pay Consultant in accordance with this Agreement, such nonpayment
shall be considered a default and breach of this Agreement for which Consultant may
terminate for cause consistent with the terms of this Agreement and without liability to Client or to others. Client will compensate Consultant for fees earned and expenses incurred up to the time of termination.Client agrees to be liable to Consultant for all costs and expenses Consultant incurs in the collection of amounts invoiced but not paid, including but not limited to attorney fees and costs.
SECTION 6: OWNERSHIP AND USE OF DATA
6.1 Ownership. All reports, notes, calculations, documents, and all other dataprepared by Consultant in the performance of the Services (“Project Data”) are instruments of Consultant’s Services and are the property of Consultant. Consultant shall retain all common law, statutory and other reserved rights, including the copyright thereto, of Project Data.
6.2 Use of Project Data. The Project Dataof this Agreementis for the exclusive purpose
disclosed by Client and, unless agreed to in writing, for the exclusive use of Client.Client may not use Project Data for a purpose for which the Project Data was not prepared without the express written consent of Consultant. Consultant will not be responsible for any claims, damages, or costs arising from the unauthorized use of any Project Data provided by Consultant under this Agreement. Client agrees to hold harmless, defend and indemnify Consultant from any and all claims,damages, losses,
and expenses, including attorney fees, arising out of such unauthorized use.
6.3 Samples, Field Data, and Contaminated Equipment. Samples and field data remaining after tests are conducted, as well as field and laboratory equipment that cannot be adequately cleansed of contaminants,are and continue to be the property of Client. Samples may be discarded or returned to Client, at Consultant’s discretion, unless within fifteen (15) days of the report date Client gives Consultant written direction
to store or transfer the samples and materials. Samples and materials will be stored at
Client’s expense.
6.4 Data Provided by Client. Electronic data, reports, photographs, samples, and other materials provided by Client or others may be discarded or returned to Client, at Consultant’s discretion, unless within 15 days of the report date Client gives Consultant written direction to store or transfer the materials at Client’sexpense.
SECTION 7: INSURANCE
7.1 Insurance. Consultantshall keep and maintain the following insurance coverages:
a.Workers’ Compensation: Statutoryb.Employer’s Liability: $1,000,000 bodily injury, each accident |$1,000,000 bodily injury by disease, each employee |$1,000,000 bodily injury/disease, aggregatec.General Liability: $1,000,000 per occurrence | $2,000,000 aggregate
d.Automobile Liability: $1,000,000 combined single limit (bodily injury and property
damage)
e.Excess Umbrella Liability: $5,000,000 per occurrence | $5,000,000 aggregatef.Professional Liability: $2,000,000 per claim | $2,000,000 aggregate
7.2 Waiver of Subrogation. Client and Consultant waive all claims and rights of subrogation forlosses arising out of causes of loss covered by the respective insurance
policies.
7.3 Certificate of Insurance.Consultant shall furnish Client with a certificate of
insurance upon request.
SECTION 8: INDEMNIFICATION, CONSEQUENTIAL DAMAGES, LIABILITY LIMITS
8.1 Indemnification.Consultant’s only indemnification obligation shall be to indemnify and hold harmless the Client, its officers, directors, and employees from and against those damages and costs incurred by Client or that Client is legally obligated to pay as
a result of third party tort claims, including for the death or bodily injury to any person or
for the destruction or damage to any property,but onlyto the extent proven to be directly
caused by the negligent act, error,or omission of the Consultant or anyone for whom the Consultant is legally responsible.This indemnification provision is subject to the Limitation of Liability set forth in this Section 8.
8.2 Intellectual Property. Client agrees to indemnify Consultant against losses and
costs arising out of claims of patent or copyright infringement as to any process or
system that is specified or selected by Client or others on behalf of Client.
8.3 Mutual Waiver of Consequential Damages.NOTWITHSTANDING ANYTHING TO
THE CONTRARY HEREUNDER, NEITHER CONSULTANT NOR CLIENT SHALL BE LIABLE TO
THE OTHER FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, OR LOSS OF USE OR RENTAL, LOSS OF PROFIT, LOSS OF BUSINESS
OPPORTUNITY, LOSS OF PROFIT OR REVENUE OR COST OF FINANCING, OR OTHER SUCH SIMILAR AND RELATED DAMAGE ASSERTED IN THIRD PARTY CLAIMS, OR CLAIMS BY
EITHER PARTY AGAINST THE OTHER.
8.4 Limitation of Liability.TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY IN THE AGGREGATE OF CONSULTANT, CONSULTANT’S OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS, AND SUBCONSULTANTS, TO CLIENT AND ANYONE
CLAIMING BY, THROUGH OR UNDER CLIENT FOR ANY CLAIMS, LOSSES,COSTS, OR DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED
CONSULTANT’S PERFORMANCE OF THE SERVICES OR THIS AGREEMENT, FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, PROFESSIONAL ERRORS AND OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT, INDEMNIFICATION
OBLIGATIONS OR BREACH OF WARRANTY, SHALL NOT EXCEED THE TOTAL COMPENSATION RECEIVED BY CONSULTANT OR $50,000, WHICHEVER IS GREATER.
SECTION 9: MISCELLANEOUS PROVISIONS
9.1 Services Prior to Agreement. Directing Consultant to commence Services prior to
execution of this Agreement constitutes Client’s acceptance of this unaltered Agreement in its entirety.
9.2Confidentiality. To the extent Consultant receives Client information identified as confidential, Consultant will not disclose that information to third parties without Client consent. Additionally, any Project Data prepared in performance of the Services will
remain confidential and Consultant will not release the reports to any third parties not
involved in the Project. Neither of the aforesaid confidentiality obligations shall apply to any information in the public domain, information lawfully acquired from others on a nonconfidential basis, or information thatConsultant is required by law to disclose.
9.3 Relationship of the Parties.Consultant will perform Services under this Agreement as an independent contractor, and its employees will at all times be under its sole discretion and control. No provision in this Agreement shall be deemed or construed to
create a joint venture, partnership, agency or other such association between the
Parties.
9.4 Resource Conservation and Recovery Act. To the extent applicable to the Services, neither this Agreement nor the providing of Services will operate to make Consultant an owner, operator, generator, transporter, treater, storer, or a disposal facility within the meaning of the Resource Conservation and Recovery Act, as
amended, or within the meaning of any other law governing the handling, treatment,
storage, or disposal of hazardous substances. Client agrees to hold Consultant harmless, defend, and indemnify Consultant from any claims, damages, penalties or losses resulting from the storage, removal, hauling or disposal of such substances.
9.5 Services in Connection with Legal Proceedings. Client agrees to compensate Consultant in accordance with its then current fees, rates, or charges if Consultant is
asked or required to respond to legal process arising out of a proceeding related to the
Project and as to which Consultant is not a party.
9.6Assignment.This Agreement may not be assigned by Consultant or Client without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
9.7 Third Party Beneficiaries.Nothing in this Agreement, express or implied, is intended, or will be construed, to confer upon or give any person or entity other than
Consultant and Client, and their respective permitted successors and assigns, any
rights, remedies, or obligations under or by reason of this Agreement.
9.8 Termination.This Agreement may be terminated by either Party for cause upon seven (7) days written notice to the other Party. Should the other Party fail to cure and perform in accordance with the terms of this Agreementwithin such seven-day period, the Agreement mayterminate at the sole discretion of the Partythat provided the written
notice. The Client may terminatethis Agreement for its convenience. If Client terminates
for its convenience, then Consultant shall be compensated in accordance with the
terms hereof for Services performed, reimbursable costs and expenses incurred prior to the termination, and reasonable costs incurred as a result of the termination.
9.9 Force Majeure.Neither Party shall be liable for damages or deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations (other than the payment of money) results, without its fault or negligence, from any
cause beyond its reasonable control, including but not limited to acts of God, acts of
civil or military authority, embargoes, pandemics, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, adverse weather conditions, strikes or lock-outs, declared states of emergency, and changes in laws, statutes, regulations, or ordinances.
9.10 Disputes, Choice of Law, Venue.In the event of a dispute and prior to exercising
rights at law or under this Agreement, Consultant and Client agree to negotiate all
disputes in good faith for a period of 30 days from the date of noticeof suchdispute. This Agreement will be governed by the laws and regulations of the state in which the Project is located and all disputes and claims shall be heard in the state or federal courts for that state. Client and Consultant each waive trial by jury.
9.11 Individual Liability.No officer or employee of Consultant, acting within the scope
of employment, shall have individual liability for any acts or omissions, and Client
agrees not to make a claim against any individual officers or employees of Consultant.
9.12 Severability.Should a court of law determine that any clause or section of this Agreement is invalid, all other clauses or sections shall remain in effect.
9.13 Waiver.The failure of either Party hereto to exercise or enforce any right under this Agreement shall not constitute a release or waiver of the subsequent exercise or
enforcement of such right.
9.14 Entire Agreement. The terms and conditions set forth herein constitute the entire
understanding of the Parties relating to the provisionof Services by Consultant to Client. This Agreement may be amended only by a written instrument signed by both Parties. In the event Client issues a purchase order or other documentation to authorize Consultant’s Services, any conflicting or additional terms of such documentation are
expressly excluded from this Agreement.
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