Item 3.10 Emergency Service Facility Construction Braun Intertec Materials and Inspection Service Proposal
Request for
City Council Action
DEPARTMENT INFORMATION
ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE:
Emergency Services Emergency Services Director Rausch January 27, 2025
PRESENTER(s) REVIEWED BY: ITEM #:
Consent
Kraus-Anderson
City Administrator/Finance Director Flaherty
3.10 – Materials & Inspections
Consulting Proposal
STRATEGIC VISION
MEETS: THE CITY OF OTSEGO:
Is a strong organization that is committed to leading the community through innovative communication.
Has proactively expanded infrastructure to responsibly provide core services.
X Is committed to delivery of quality emergency service responsive to community needs and expectations in a
cost-effective manner.
Is a social community with diverse housing, service options, and employment opportunities.
Is a distinctive, connected community known for its beauty and natural surroundings.
AGENDA ITEM DETAILS
RECOMMENDATION:
City staff is recommending that the City Council accept a proposal for construction materials and special inspections for
the Fire & Emergency Services Facility Project.
ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED?
Yes No
BACKGROUND/JUSTIFICATION:
The City has initiated construction of the Fire & Emergency Services Facility Project. In conjunction with the Construction
Management Consultant, City staff obtained a proposal for construction materials and special inspection services for the
project. A summary of the scope of services within the proposal include:
1. Construction Materials Testing and Special Inspections
o Soil excavation observations and compaction testing
o Concrete testing (slump, air content, temperature, compressive strengths)
o Structural steel and weld/bolt inspections
o Fireproofing inspection/testing
o Pavement subgrade, base, and asphalt testing
o Firestopping special inspection
2. Building Enclosure Consulting, Observations, and Testing
o Document/drawing review for air/weather barrier continuity
o Periodic field observations and reporting
o Air/weather barrier testing (qualitative and thickness checks)
o Fenestration testing (AAMA 501.2 / AAMA 503) as applicable
o Final report and coordination with design/construction team
Reason for Request:
State and local building codes require special inspections and material testing for structural and fire-safety elements, as
well as verification of building enclosure performance. Braun Intertec is uniquely qualified due to its ongoing storm
shelter review work (under B2410813) and familiarity with the project site, design, and local conditions.
Estimated Fee:
• Construction Materials Testing, Special Inspections, Firestopping: $107,469
• Building Enclosure Consulting, Observations, Testing (BECx): $18,330
• Total Estimated Contract Amount: $125,769
• Billing Basis: Time and materials invoiced monthly.
• Potential Overtime: Any requested work outside standard hours (6:00 a.m. – 4:00 p.m., Mon–Fri) will be subject
to additional charges at the stated overtime rates in the proposal.
The City Attorney has reviewed the Agreement. City Staff is agreeable to the terms stated in the proposal and the
proposal amount is within the project budget allotted for this service.
SUPPORTING DOCUMENTS ATTACHED:
• Proposal: Braun Intertec
POSSIBLE MOTION
PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES:
Motion to accept the proposal from Braun Intertec for construction materials and special inspection consulting
services for the Fire & Emergency Services Facility Project in the amount of $125,799.00.
BUDGET INFORMATION
FUNDING: BUDGETED:
Fund 446 – Fire & Emergency Services Facility
Yes
AA/EOE
Braun Intertec Corporation
11001 Hampshire Avenue S
Minneapolis, MN 55438
Phone: 952.995.2000
Fax: 952.995.2020
Web: braunintertec.com
January 15, 2025 Proposal QTB203806
Adam Flaherty
City of Otsego
13400 90th Street NE
Otsego, MN 55330
Re: Proposal for Construction Materials Testing, Special Inspections, Building Enclosure Consulting
and Observations
The City of Otsego - New Fire Station
14499 75th Street NE
Otsego, MN
Dear Mr. Flaherty:
Braun Intertec Corporation is pleased to submit this proposal to provide Construction Materials Testing,
Special Inspections, Building Enclosure Consulting and Observations and Testing for the City of Otsego –
New Fire Station in Otsego, Minnesota.
We are under contract to completed Storm Shelter Reviewal under B2410813, so we have a unique
understanding of the site and construction challenges. We can aid the construction team by applying this
experience and transferring our knowledge developed during the design phase which will provide
professional continuity to the construction. Our work on the project to date gives us familiarity with the
project team and design development which allows us to understand some of the considerations used
when developing the projects design.
Since our inception in 1957, we have grown into one of the largest employee owned engineering firms in
the nation. With around 1,000 employee owners, retaining our firm gives you access to a diverse range of
services and professionals you can consult with if the unforeseen occurs. The size of our company also
allows us to respond quickly when schedule constraints occur.
Our Understanding of the Project
We understand this project will include the construction of a new slab on grade two-story fire station
with a building footprint of approximately 30,000 square feet, as well as parking lots, drive lanes, and
underground utilities. The construction will consist of concrete spread footings designed for a maximum
bearing soil capacity of 4,000 pounds per square foot, slab on grade, stoops, aprons, topping slabs, a
trash enclosure, sidewalks, curb & gutter, precast, equipment pads, bituminous and concrete pavement,
and infiltration areas. Braun Intertec will provide special inspections and construction materials testing
on soils, concrete, structural steel, fireproofing, pavement, firestopping, and building enclosure related
elements of the project.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 2
Available Information
This proposal was prepared using the following documents and information.
Project plans and specifications prepared by Wold Architects and Engineers, sent to us by
Kraus-Anderson Construction on September 4, 2024.
A geotechnical report, HGTS 24-0504, dated September 3, 2024.
Project Approach and Staff Qualifications
Special Inspections
Braun Intertec has adopted the International Code Council (ICC) Model Program for Special Inspection to
develop the guiding principles for our special inspection program. This model was selected because it
was designed by the ICC to assist owners, contractors and building officials in the understanding,
administration and enforcement of the special inspection requirements of the International Building
Code (IBC). Currently, there are ICC certifications for soils, reinforced concrete, structural masonry, pre-
tension/post-tension (pre-stressed) concrete, spray-applied fireproofing, structural steel and bolting, and
structural welding.
Qualifications and Experience
ICC certified special inspectors will provide special inspections. An ICC certified special inspector is one
who has successfully demonstrated their ability to understand the IBC, construction practices and how to
read and understand construction documents. Through experience and examination, our ICC certified
special inspectors have demonstrated their ability to provide special inspection services.
Inspections and Reporting
Our special inspectors summarize the nature, extent and results of special inspection activities at the
time they are performed on Special Inspection Daily Report forms submitted electronically to the general
contractor’s on-site personnel for review and records. These records can also be transmitted
electronically to others who may want to review these documents on an agreed upon schedule. When
unresolved discrepancies are noted, we will document the issues and work with the design and
construction team to bring them to resolution. Special inspection final reports will be prepared and
submitted upon completion as required by the requirements of the IBC.
Communications
Braun Intertec special inspectors will communicate the results of their inspections to the contractor and
our supervising engineer each day special inspections are performed. We strive to have our special
inspectors develop a working relationship with the project’s structural engineer-of-record. We may
attempt contact with the structural engineering consultant periodically to review the work being
performed and to request clarifications and direction on any item that may require it.
Construction Materials Testing
Qualified technicians working under the direction of a professional engineer will provide the services.
Experience and certification information is available upon request once we are provided with schedule
information. Concrete technicians assigned to the project are ACI Concrete Field Testing Technician –
City of Otsego
Proposal QTB203806
January 15, 2025
Page 3
Grade I certified to conduct the required concrete testing. Soil technicians are certified to use a nuclear
gauge for soil density testing, so test results can be determined on site and evaluated once the required
laboratory testing is completed. Field test results will be verbally reported daily to the general contractor
on site, with written field and laboratory reports distributed shortly after.
Scope of Services
Services are performed under the direction of a licensed professional engineer, on a periodic basis,
depending on the construction schedule and when they are requested by the general contractor. After
reviewing available information, we understand our scope of services for the project will be limited to
the tasks defined below.
Soil Related Services
Observe and evaluate the soils exposed in excavations to determine if the soils are similar to
those encountered with the geotechnical evaluation and suitable for support of fill,
foundations or pavements. Our engineer can provide consultation for conditions that appear
to differ from the geotechnical evaluation.
Perform laboratory Proctor tests to determine the maximum Proctor dry densities and
optimum moisture contents of prospective fill materials.
Observe the placement and compaction of fill.
Test compacted fill placed below building footprints and oversizing areas, below slabs and/or
pavements, adjacent to walls, and in utility trenches, to determine if the relative compaction
was achieved.
Engineering oversight and review of the services provided.
Concrete Related Services
Observe concrete reinforcement placement.
Observe the general placement of bolts and other embeds in the plastic concrete.
Sample and test the plastic concrete for slump, air content, temperature and prepare test
cylinders for laboratory compressive strength testing with ACI level 1 field technicians. We
will perform concrete testing on structural items as required by the IBC. Though not required
by the IBC we have included testing for the interior slab on grade, exterior sidewalks, curb
and gutter, and pavement.
Observe the concrete placement and test sample preparation.
Perform laboratory compressive strength testing of the concrete samples.
Structural Steel, Precast Concrete Welding, and Fireproofing Related Services
Observe and test the structural steel welded and bolted connections in the field.
Observe and test the metal decking connections for orientation, sidelap fasteners, the hold
down connections.
Observe and test the precast concrete welded or bolted connections.
Observe and document the installation of the base plate anchor bolts.
Observe the installation of post-installed anchors.
Observe and test the spray-applied fireproofing for thickness, density and bond strength.
Perform an audit of the fabricator’s quality control manual and process.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 4
Paving Related Services
Observe test rolls of the pavement subgrade soils and/or aggregate base layer to determine
if the materials tested are capable of supporting bituminous or concrete pavement.
Core the compacted bituminous pavement to obtain samples for thickness and density
measurements.
Perform extraction and extracted aggregate gradation tests on bituminous samples.
Perform laboratory density tests on bulk samples of bituminous mixes for mix design
evaluation.
Engineering Consulting and Project Communication and Reporting Services
Provide engineering consulting services, review test results and observations reports, and
prepare required final reports.
Management, including scheduling of our field personnel and communication with the
contractor, owner, building official, and design team.
Transmit results to the project team on weekly basis to the contractor, owner, building
official, fabricators and design team.
Firestopping Observation Services
This project requires 3rd party firestop special inspection of through-penetration firestopping and
fire-resistive joint systems under the State Building Code and adopted 2020 Minnesota State Building
Code, Section 1705.17 and Table 1604.5. Under 2020 Minnesota State Building Code, Chapter 16,
Table 1604.5 – this project falls into a High-Rise Hazard, Risk Category III Hazard, or Risk Category IV
Hazard, or the project specifications require the inspection service. Chapter 1705.17 requires inspection
of installed firestop systems by a qualified independent testing agency.
Our inspectors meet the requirements outlined in ASTM E2174, ASTM E2393, and ASTM E3038 for
on-site inspection of installed firestops and have a minimum of 2 years of construction inspection
experience. Our firestop inspectors are certificate holders issued by the International Firestopping
Council (IFC) based on their testing requirements, and/or Factory Mutual (FM Global) according to their
FM 4991 Designated Responsible Individual (DRI) testing requirement, and/or Underwriters Laboratory’s
(UL) Designated Responsible Individual (DRI) testing requirement and having completed coursework and
training on proper procedures for inspection of firestop systems by our internal firestop Inspection
training program.
Our special inspectors summarize the nature, extent and results of their special inspection activities
at the time they are performed on Daily Inspection Forms that are submitted to the Authority Having
Jurisdiction (AHJ or Building Official), Authorizing Authority (Architect of Record), general contractor’s
on-site personnel for their review and records, the installer(s), and the main project manager managing
the project for Braun Intertec. Inspection forms will be sequentially numbered and will contain
information about one type (per approved submitted system/Engineering Judgment, by installer) of
firestop system. If multiple firestop systems are inspected in one day, then separate inspection forms
will be prepared for each firestop system. The daily special inspection reports will become the basis for
our final written report.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 5
Firestop Submittal Review, Project Communication, and Reporting Services
Provide review of the approved construction documents. This is at minimum,
The most current drawing package
The firestop specifications section – CSI - 078400
The approved firestop submittal, including all UL Listed assemblies and any engineering
judgments to be used, and the product information
Management, including scheduling of our field personnel and communication with the
contractor, owner, building official, fabricator and design team through our report distribution
process.
Transmit the daily field inspection reports within 24 to 48-hour basis to the project team; the
installer, general contractor, owner, building official, and design team.
Firestopping Special Inspection Assumptions
Mandatory Pre-construction meeting with General Contractor and Sub-Contractor(s).
Review of contract documents, including drawings, specifications, submittals, and materials
prior to installation.
Coordination with the firestop installer(s) and general contractor with respect to scheduling.
Safe access to all locations where firestop installations are required. No special site-specific
training or gear is required to complete our scope of services.
We have assumed 7 trips to inspect installed firestop systems as noted in the construction
documents for the project. Firestop inspection trips include coordination time, travel,
construction meetings (as requested), mandatory pre-installation meetings, preparation of
daily written reports for each inspected firestop system by each installer. Actual installation
phasing and sequencing may modify the number of visits.
We will require a minimum of 24 hours’ notice for scheduling inspections for a specific time.
Less than 24 hours’ notice may impact our ability to perform the requested services, and the
associated impacts will be the responsibility of others.
Inspection guidelines will be based on IBC code required ASTM E2174 and ASTM E2393
inspection standards.
Re-inspection or follow-up inspections will be charged on an hourly and/or unit pricing basis
at the billing rates included.
Final report when firestopping is completed.
Building Enclosure Consulting, Observations and Testing
Building Enclosure Consulting, Observation and Testing Services are provided by the Braun Intertec
Building Science Group. The Building Science Group is a team of Registered Architects, Professional
Engineers, Consultants, and Field Technicians with certifications as Building Enclosure Commissioning
Agent (BECxP, CxA+BE), Registered Roof Observer (RRO), Registered Exterior Wall Observer (REWO),
Licensed Air Barrier Field Auditor, Certified Air Barrier Specialist (CABS), Certified EIFS Inspectors (CEI),
FenestrationMaster Professional (FMPC), and Certified Infrared Thermographers (CIT). Braun Intertec is
an AAMA-accredited Field Test Agency.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 6
Building Enclosure Consulting - ASHRAE 90.1-2019, Section 5.4.3.1.1, Exception 3
Proposed scope is based upon ASHRAE 90.1-2019, Section 5.4.3.1.1, Exception 3 as required by
Minnesota Energy Code for continuous air barrier design and installation verification program. A design
review, periodic field observations, and related reports of these services are required by the verification
program, as outlined in ASHRAE 90.1-2019 Section 5.9.1.2 and below.
Design Documents Peer Review
Perform one (1) review of the CD documents (75% is the ideal benchmark). Review will focus
on the exterior envelope, materials and assemblies, transitions between building enclosure
assemblies, and fenestration and doors.
In addition to meeting the requirements of ASHRAE 90.1-2019, Braun Intertec’s design
review services include reviewing for thermal transfer, constructability, and material
compatibility.
Provide a report and attend an online meeting following the review. Our report will consist of
electronic redline markings in Bluebeam Revu on the drawings as necessary to clarify specific
details.
Building Enclosure Observations
Attend pre-construction meetings (if applicable), perform pre-construction prep work, and
review approved submittals.
Perform periodic observations during installation of building enclosure systems, including
waterproofing, below-grade systems, exterior walls, air/weather barriers, fenestrations and
doors, roofing, and critical connections, junctions, and envelope transitions.
Provide a Daily Observation Report to document observations made at the time of each site
visit. If discrepancies are observed, they will be discussed with the Contractor prior to
departing the site.
As discrepancies are observed and documented, it is the responsibility of others to make
necessary correction(s). At subsequent visits, we will document corrections if not covered or
hidden from view. If hidden from view, we will note as such.
We have included eight (8) site visits for observations. Actual installation phasing and
sequencing may modify the number of visits.
Building Enclosure Testing
Air/Weather Barrier Testing
Perform wet mil thickness checks at minimum of six (6) locations per visit if on site during
application of fluid-applied membranes.
Perform Qualitative Air Leakage Testing according to ASTM E1186 Standard Practices for Air
Leakage Site Detection in Building Envelopes Air Barrier Systems, Method 4.2.7 – Chamber
Depressurization in Conjunction with Leak Detection Liquid.
Testing will be performed during periodic observation site visits.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 7
Whole Building Air Leakage Testing - ASHRAE 90.1-2019, Section 5.4.3.1.1
This proposal includes scope and cost to perform a continuous air barrier design and installation
verification program per ASHRAE 90.1-2019, Section 5.4.3.1.1, Exception 3. If the client plans to perform
Whole Building Air Leakage Testing, in lieu of the verification program, Braun Intertec can provide a
separate proposal for the testing at the request of the client.
Window Testing Pre-Test Conference and Submittal Review
Attend the pre-construction meeting (if applicable) and perform pre-construction prep work
and document review for understanding of specific product and installation method as a
basis for our field-testing activities.
Communicate testing procedures and requirements for field testing to project team.
Window Testing according to AAMA 501.2
Provide labor, materials, and equipment to complete the fenestration testing according to
AAMA 501.2, “Quality Assurance and Diagnostic Water Leakage Field Check of Installed
Storefronts, Curtain Walls, and Sloped Glazing Systems.”
The AAMA 501.2 water spray test is utilized to test the installed non-operable fenestration
for water tightness. A calibrated nozzle is used to delivery water spray at a uniform pressure
while slowly wetting the surface of the fenestration system. The spray test focuses on the
installed sealants and gaskets.
Each test is comprised of a minimum 100-square foot representative section as outlined in
the AAMA 501.2 standard.
We have included two (2) tests, in one site visit.
Storefront or Curtain Wall Testing according to AAMA 503
Provide labor, materials, and equipment to complete the fenestration testing according to
AAMA 503 – Voluntary Specification for Field Testing of Newly Installed Storefronts, Curtain
Walls and Sloped Glazing Systems.
Air Infiltration testing is performed according to ASTM E783 - Standard Test Method for Field
Measurement of Air Leakage Through Installed Exterior Windows and Doors and water
penetration testing according to ASTM E1105 – Standard Test Method for Field
Determination of Water Penetration of Installed Exterior Windows, Skylights, Doors, and
Curtain Walls, by Uniform or Cyclic Static Air Pressure Difference.
AAMA 503 testing consists of construction of a pressure test chamber on the interior side of
the window to create a negative pressure while simultaneously spraying the exterior of the
window with a calibrated rate of water delivered via a spray rack. The architectural
specifications and/or manufacturer performance data will provide specification test
guidelines for test chamber pressures to be used during the test.
We have included two (2) tests, in one site visit.
Project Management and Reporting Services
Review test results and observation reports, transmit results to the project team following
completion of observation and/or testing activities, and prepare required final reports.
Management, including scheduling of our field personnel and communication with the
contractor, owner, and design team.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 8
Building Enclosure Observations and Testing Assumptions
Safe access to the locations requiring observations and testing to be provided by the General
Contractor.
Approved submittal packages should be submitted for review a minimum of
72 hours prior to our arrival on site.
48 hours’ notice for scheduling observations for a specific time is required. Shorter than
48 hours’ notice may impact our ability to perform the requested services. A minimum of
2 weeks’ notice for scheduling window testing is required. This duration is also the minimum
length of time required for sealant cure prior to testing.
We will test windows before the interior finishes are in place as this allows us to observe the
rough opening for water penetration. Any caulking or foam that obscures the rough opening
will need to be removed by others prior to testing to allow us to observe the entire rough
opening, except that required by the window manufacturer’s installation instructions.
Power and water access of sufficient pressure within 200 feet of the test specimen is
assumed provided by the Contractor. If additional water supply provisions required,
additional costs may be incurred.
We assume testing at grade level, roofs, and/or terraces. We do not include costs for aerial
lift equipment or scaffolding that may be required if the window head is greater than 12 feet
above the adjacent horizontal surface. It is most economical to utilize aerial lift equipment
already on site.
The proposal does not include temporary enclosures or heat if the project schedule
necessitates testing during winter or adverse weather conditions and is assumed provided by
the Contractor.
Re-inspection or additional testing due to nonconformance will be provided at the Unit Rates
in the attached tabulation.
Basis of Scope of Work
The costs associated with the proposed scope of services were estimated using the following
assumptions. If the construction schedule is modified or the contractor completes the various phases of
the project at different frequencies or durations than shown in this proposal, we may need to adjust the
overall cost accordingly. The scope of work and number of trips required to perform these services are as
shown in the attached table. Notable assumptions in developing our estimate include:
This project will begin in the spring 2025 and will be substantially complete by winter 2025.
Assumptions regarding the number of trips for special inspections and testing are outlined in
the attached cost estimate table. As the contractor’s schedule becomes available and designs
are finalized, please review this proposed scope of work to determine if the project’s needs
and budget will be met.
Concrete placements for the structure will be observed throughout the duration by our
technician as required by the IBC and project documents.
As the structural steel fabricator has not been chosen at the time of this proposal, we have
assumed the structural steel fabricator will be NOT AISC certified and review of quality
control manual or inspections of the fabrication shop are required. The structural steel
fabrication shop must be within 75 miles of our St. Paul or Bloomington offices.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 9
We will perform testing of the fireproofing at the IBC required frequencies of one density
and bond test for every 2,500 square feet per floor, per member type. Please confirm the
quantities we have assumed as limited fireproofing information is available at this time.
No special site specific training or gear is required to complete our scope of services.
Parking will be available on site for our vehicles.
You, or others you may designate, will provide us with current and approved plans and
specifications for the project. Modification to these plans must also be sent to us so we can
review their incorporation into the work.
We will require a minimum of 24 hours’ notice for scheduling inspections for a specific time.
Shorter than 24 hours’ notice may impact our ability to perform the requested services, and
the associated impacts will be the responsibility of others.
Fees
We will furnish the services described in this proposal for an estimated fee shown below in Table 1. A
tabulation showing hourly and unit rates associated with our proposed scope of services is attached. The
actual cost of our services will be based on the actual units or hours expended to meet the requirements
of the project documents.
Table 1. Cost Tabulation
Phase Cost
Construction and Materials Testing including Firestopping Special Inspections $107,469.00
Building Enclosure Consulting, Observations and Testing (BECx) 18,330.00
Total $125,769.00
This cost estimate was developed with the understanding that the scope of services defined herein will
be required and requested during our normal work hours of 6:00 a.m. to 4:00 p.m., Monday through
Friday. Services that we are asked to provide to meet the project requirements or the contractor’s
construction schedule outside our normal business hours will be invoiced using an overtime rate factor.
The factor for services provided outside our normal work hours or on Saturday will be 1.25 times the
listed hourly rate for the service provided. The factor for services provided on Sunday or legal holidays
will be 1.5 times the listed hourly rate for the service provided. We have not included premiums for
overtime in our cost estimate; however, we recommend that allowances and contingencies be made for
overtime charges based on conversations with the contractor. You will be billed only for services
provided on a time and materials basis.
Because our services are directly controlled by the schedule and performance of others, the actual cost
may vary from our estimate. It is difficult to project all of the services and the quantity of services that
may be required for any project. If services are required that are not discussed above, we will provide
them at the rates shown in the attached table or, if not shown, at our current Schedule of Charges. We
will invoice you on a monthly basis.
9
City of Otsego
Proposal QTB203806
January 15, 2025
Page 10
General Remarks
We will be happy to meet with you to discuss our proposed scope of services further and clarify the
various scope components.
We appreciate the opportunity to present this proposal to you. After reviewing this proposal, please sign
and return one copy to our office as notification of acceptance and authorization to proceed. If
anything in this proposal is not consistent with your requirements, please let us know immediately.
Braun Intertec will not release any written reports until we have received a signed agreement. Also,
ordering services from Braun Intertec constitutes acceptance of the terms of this proposal (including the
attached General Conditions).
The proposed fee is based on the scope of services described and the assumption that our services will
be authorized within 30 days and that others will not delay us beyond our proposed schedule.
City of Otsego
Proposal QTB203806
January 15, 2025
Page 11
We include the Braun Intertec General Conditions, which provide additional terms and are a part of our
agreement.
To have questions answered or schedule a time to meet and discuss our approach to this project further,
please contact Mark Donkor at 651.313.4397 (MDonkor@braunintertec.com) or Dan Martin
651.746.4006 (DMartin@braunintertec.com).
Sincerely,
BRAUN INTERTEC CORPORATION
Mark Donkor
Staff Engineer
Richard J. Fritz P.E.
Project Engineer
Daniel E. Martin
Director, Senior Project Manager
Attachments:
Cost Estimate Table
General Conditions – CMT (11/04/24)
The proposal is accepted. We will reimburse you in accordance with this agreement, and you are
authorized to proceed:
Authorizer’s Firm
Authorizer’s Signature
Authorizer’s Name (please print or type)
Authorizer’s Title
Date
Client:Service Description:Work Site Address:
14499 75th Street Northeast
Otsego, MN 55330
City of Otsego
Adam Flaherty
Otsego City Hall
13400 90th Street NE
Otsego, MN 55330
(763) 441-4414
Construction Materials Testing and Special
Inspections, Building Enclosure Consulting,
Observations and Testing
Description Quantity Units Unit Price Extension
Phase 1 Construction and Materials Testing
Activity 1.1 Soil Observations and Testing $29,566.00
206 Excavation Observations 34.00 Hour 120.00 $4,080.00
Work Activity Detail Qty Units Hrs/Unit Extension
Site Grading 10.00 Trips 2.00 20.00
Foundation Excavations 8.00 Trips 1.50 12.00
Slab On Grade 2.00 Trips 1.00 2.00
207 Compaction Testing - Nuclear 126.00 Hour 100.00 $12,600.00
Work Activity Detail Qty Units Hrs/Unit Extension
Site Grading 10.00 Trips 3.00 30.00
Foundation Backfill/ Wall Backfill 16.00 Trips 3.00 48.00
Utilities, Storm, Sanitary, Water Main 16.00 Trips 3.00 48.00
1308 Nuclear moisture-density meter charge, per hour 126.00 Each 34.00 $4,284.00
209 Sample pick-up 3.00 Hour 100.00 $300.00
1318 Moisture Density Relationship (Standard), per sample 3.00 Each 208.00 $624.00
128 Senior Engineer 8.00 Hour 216.00 $1,728.00
1861 CMT Trip Charge 67.00 Each 50.00 $3,350.00
1193 Double-Ring Infiltrometer test (ASTM D 3385): Granular soils - test
and equipment rental
2.00 Each 1,250.00 $2,500.00
1871 Double-Ring Trip Charge 1.00 Each 100.00 $100.00
Activity 1.2 Concrete Observations and Testing $40,220.00
260 Concrete Observations 61.50 Hour 120.00 $7,380.00
Work Activity Detail Qty Units Hrs/Unit Extension
Footings / Pads 10.00 Trips 1.50 15.00
Foundation Walls 15.00 Trips 1.50 22.50
Reinforced Slab on Grade 8.00 Trips 1.50 12.00
Structural Topping 1.00 Trips 1.50 1.50
Stoop / Apron Slabs 3.00 Trips 1.50 4.50
Trash Enclosure: Footing, Wall, Slab 3.00 Trips 1.50 4.50
Ext. Equitment Pads 1.00 Trips 1.50 1.50
261 Concrete Testing 156.00 Hour 100.00 $15,600.00
Work Activity Detail Qty Units Hrs/Unit Extension
Footings / Pads 10.00 Trips 3.00 30.00
Foundation Walls 15.00 Trips 3.00 45.00
Reinforced Slab on Grade 8.00 Trips 3.00 24.00
Structural Topping 1.00 Trips 3.00 3.00
Stoop / Apron Slabs 3.00 Trips 3.00 9.00
Trash Enclosure: Footing, Wall, Slab 3.00 Trips 3.00 9.00
Ext. Equitment Pads 1.00 Trips 3.00 3.00
Slab on Grade 2.00 Trips 3.00 6.00
Sidewalk / Flatwork 2.00 Trips 3.00 6.00
Curb & Gutter 2.00 Trips 3.00 6.00
Pavement / Driveway Aprons 5.00 Trips 3.00 15.00
Page 1 of 301/14/2025 03:21 PM
Project Proposal
QTB203806
City of Otsego - New Fire Station
1364 Compressive strength of concrete cylinders (ASTM C 39),per
specimen
260.00 Each 44.00 $11,440.00
Work Activity Detail Qty Units Hrs/Unit Extension
Footings / Pads 10.00 Sets 5.00 50.00
Foundation Walls 15.00 Sets 5.00 75.00
Reinforced Slab on Grade 8.00 Sets 5.00 40.00
Structural Topping 1.00 Sets 5.00 5.00
Stoop / Apron Slabs 3.00 Sets 5.00 15.00
Trash Enclosure: Footing, Wall, Slab 3.00 Sets 5.00 15.00
Ext. Equitment Pads 1.00 Sets 5.00 5.00
Slab on Grade 2.00 Sets 5.00 10.00
Sidewalk / Flatwork 2.00 Sets 5.00 10.00
Curb & Gutter 2.00 Sets 5.00 10.00
Pavement / Driveway Aprons 5.00 Sets 5.00 25.00
278 Concrete Cylinder Pick up 22.00 Hour 100.00 $2,200.00
Work Activity Detail Qty Units Hrs/Unit Extension
Cylinder Pickup 22.00 Trips 1.00 22.00
1861 CMT Trip Charge 72.00 Each 50.00 $3,600.00
Activity 1.3 Structural Steel and Fireproofing Observations and Testing $8,926.00
605 ICC Structural Steel Technician 42.00 Hour 125.00 $5,250.00
Work Activity Detail Qty Units Hrs/Unit Extension
Welding, Framing, Bolting, Precast 8.00 Trips 3.00 24.00
Fab Shop Inspection 2.00 Trips 8.00 16.00
NDE Final Report 1.00 Hours 2.00 2.00
281 Fireproofing Observations & Testing 12.00 Hour 125.00 $1,500.00
Work Activity Detail Qty Units Hrs/Unit Extension
Fireproofing Observations & Testing 4.00 Trips 3.00 12.00
1784 Thickness/Density, laboratory determination 12.00 Each 68.00 $816.00
1785 Adhesion/Cohesion Testing, per test 12.00 Each 55.00 $660.00
1664 NDE Trip charge 14.00 Each 50.00 $700.00
Activity 1.4 Pavement Observations and Testing $7,872.00
211 Proofroll Observations 12.00 Hour 125.00 $1,500.00
Work Activity Detail Qty Units Hrs/Unit Extension
Parking lots and Drive Lanes 4.00 Trips 3.00 12.00
252 Bituminous Coring 9.00 Hour 240.00 $2,160.00
Work Activity Detail Qty Units Hrs/Unit Extension
Coring 3.00 Trips 3.00 9.00
1542 Thickness and Density of Bituminous Core 6.00 Each 64.00 $384.00
209 Sample pick-up 9.00 Hour 100.00 $900.00
Work Activity Detail Qty Units Hrs/Unit Extension
Hot Asphalt Mix 2.00 3.00 6.00
1530 Asphalt Content, per sample 6.00 Each 170.00 $1,020.00
1532 Extracted Aggregate Gradation, per sample 6.00 Each 120.00 $720.00
1528 Rice Specific Gravity, per sample 6.00 Each 98.00 $588.00
1861 CMT Trip Charge 12.00 Each 50.00 $600.00
Activity 1.5 Firestopping Special Inspections $7,915.00
5516 Pre-Con Meeting/Submittal Review (Includes Trip Charge)1.00 Each 1,350.00 $1,350.00
652 Firestopping Observations 35.00 Hour 142.00 $4,970.00
Work Activity Detail Qty Units Hrs/Unit Extension
Firestopping Observations 7.00 Trips 5.00 35.00
1870 Firestopping Trip Charge 7.00 Each 45.00 $315.00
654 Firestopping Project Manager 2.00 Hour 180.00 $360.00
Page 2 of 301/14/2025 03:21 PM
Project Proposal
QTB203806
City of Otsego - New Fire Station
Proposal Total:$125,799.00
5522 Firestopping Final Report 1.00 Each 920.00 $920.00
Activity 1.6 Project Management, Engineering Review, Oversight $12,970.00
238 Project Assistant 20.00 Hour 100.00 $2,000.00
226 Project Manager 35.00 Hour 190.00 $6,650.00
128 Senior Engineer 20.00 Hour 216.00 $4,320.00
Phase 1 Total:$107,469.00
Phase 2 Building Enclosure Consulting, Observations and Testing (BECx)
Activity 2.1 Design Review (ASHRAE 90.1)$3,136.00
162 Senior Consultant 8.00 Hour 180.00 $1,440.00
163 Principal Consultant 8.00 Hour 212.00 $1,696.00
Activity 2.2 Building Enclosure Observations (ASHRAE 90.1)$8,439.00
5532 Pre-Construction and Document Review 3.00 Each 653.00 $1,959.00
5501 Building Enclosure Observation (Ea)8.00 Each 765.00 $6,120.00
1870 BaSS Trip Charge 8.00 Each 45.00 $360.00
Activity 2.3 Building Enclosure Testing $5,935.00
5507 Qualitative Air Leakage Testing, Bubble Gun 2.00 Each 1.00 $2.00
5533 Window Tests: Pre-Test Visit/Conference 1.00 Each 653.00 $653.00
5510 AAMA 501.2 Window Test (Ea)2.00 Each 990.00 $1,980.00
5538 RETEST/ADD’L – AAMA 501.2 Each 990.00 $.00
5512 AAMA 503 Window Test (Ea)2.00 Each 1,485.00 $2,970.00
5540 RETEST/ADD’L – AAMA 503 Each 1,485.00 $.00
1573 Window Testing Equipment/Supply 1.00 Each 150.00 $150.00
1870 BaSS Trip Charge 4.00 Each 45.00 $180.00
Activity 2.4 Project Management and Reporting $820.00
5514 Window Testing Report (ea.) [one report per trip scheduled]1.00 Each 293.00 $293.00
161 Project Consultant 1.00 Hour 167.00 $167.00
162 Senior Consultant 2.00 Hour 180.00 $360.00
Phase 2 Total:$18,330.00
Page 3 of 301/14/2025 03:21 PM
Project Proposal
QTB203806
City of Otsego - New Fire Station
Braun Intertec General Conditions
Rev. 2024-11-04 Page 1 of 2
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. Client understands 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 by the Parties prior
to performance of the Additional Services and may entitle Consultant to additional
compensation and schedule 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 its professional 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’s findings,
opinions, and recommendations will be provided to Client in writing and 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’s personnel. 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. Client accepts the 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 objects or 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 any sample
or 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 as
reasonable personal protective equipment (“PPE”) typical for the 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’s employees 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’s
property, and Client is responsible for monitoring well permitting, maintenance, and
abandonment unless otherwise expressly set forth in this Agreement.
3.11 Contaminant Disclosures Required by Law. Client agrees to 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. Client agrees to hold
Consultant harmless, defend, and indemnify Consultant from 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 communicate to Consultant the scheduling of
observations, inspections, and testing performed by Consultant. 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 the scheduling of observations, inspections,
or testing will dictate the time Consultant’s field personnel spend on the job site 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
costs may vary and 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 writing within thirty (30) days of the invoice date. Unless
otherwise stated in this Agreement 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’s
obligation 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’s successful completion of any project, receipt of payment from a third
party, or any other event.
5.4 Third Party 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 the Agreement
contains sufficient consideration notwithstanding Consultant being paid by a third 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
Braun Intertec General Conditions
Rev. 2024-11-04 Page 2 of 2
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 data prepared 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 Data of this Agreement is 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’s expense.
SECTION 7: INSURANCE
7.1 Insurance. Consultant shall keep and maintain the following insurance coverages:
a. Workers’ Compensation: Statutory
b. 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, aggregate
c. 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 aggregate
f. 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
for losses 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 only to 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.
9.2 Confidentiality. 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 that Consultant 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.
9.6 Assignment. 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 Agreement within such seven‐day period, the Agreement
may terminate at the sole discretion of the Party that provided the written notice. The Client
may terminate this 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 notice of such dispute. 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 provision of 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.