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<br /> TERMS AND CONDITIONS TO AGREEMENT FOR
<br /> MA TERIALS ENGINEERING AND RELATED CONSTRUCTION OBSERVATION
<br /> AND MATERIALS TESTING SERVICES
<br /> ARTICLE I. SERVICES: CONSULTANT will:
<br /> 1.1 Act for CLIENT in a professional manner, using that degree of care 3.6 The only warranty made by CONSULTANT in connection with its
<br /> and skill ordinarily exercised by and conaistent with the standards of services performed hereunder is that it will use that degree of care
<br /> the profession practicing in the same or similar locality of THE and skill as set forth in Article 1.1 above. No other warranty,
<br /> PROJECT site. expressed or implied, is made or intended for services provided
<br /> hereunder or furnishing oral or written reports of findings made.
<br /> 1.2 Provide only those services that, in the opinion of CONSULTANT, lie
<br /> within the technical or professional areas of expertise of 3.7 Insofar as jobsite safety is concerned, CONSULTANT is responsible
<br /> CONSULTANT and which CONSULTANT is adequately staffed and solely for his own and his employees' activities on the job site , but
<br /> equipped to perform. In addition, CONSULTANT will perform only this shall not be construed to relieve OWNER or any construction
<br /> those services specifically agreed to as part of this contract. contractors from their responsibilities for maintaining a safe jobsite.
<br /> Neither the professional activities of CONSULTANT, nor the presence
<br /> 1.3 Perform all technical services in subatantial accordance with the basic of CONSULTANT or his employees and subcontractors, shall be
<br /> requirements of the appropriate Standards of The American Society construed to imply CONSULTANT has any responsibility for methods
<br /> for Testing and Materials, where applicable, or other standarda of work performance, superintendence, sequencing of construction, or
<br /> designated in writing by CLIENT. Written reports will be submitted safety, in, on or about the jobsite. CLIENT agrees that the General
<br /> presenting the results of tests, observations, and/or analyses as per Contractor is solely responsible for jobsite ssfety, and wsrrsnts that
<br /> the scope of services agreement. this intent shall be made evident in the OWNER's agreement with the
<br /> General Contractor. BMEI!T",w ........ul.. II al g91'¡¡¡l'I.T'IIT ."011
<br /> 1.4 Retain all pertinent records relating to the services performed for a 1>o......L . ¡j¡jilin! al iu ,... oRlier I'" I;'Ro".I "'RIF"I..'. goR,.a!
<br /> period of five yesrs following submission of the report, during which liahililj ¡RUURD] ¡.Ii.)
<br /> period the records will be made available upon request to CLIENT
<br /> during normal office hours. ARTICLE 4. INS URANCE:
<br /> ARTICLE 2. CLIENT'S RESPONSIBILITIES. CLIENT or his designated CONSULTANT shall secure snd maintain throughout the full period of
<br /> representative will: this Agreement sufficient insursnce to protect it adequately from
<br /> claims under applicable Workmen's Compensation Acts snd from claims
<br /> 2.1 Provide CONSULTANT with all plans, specifications, addenda, change against the CONSULTANT for bodily injury, death, or property
<br /> orders, approved shop drawings, and other information for the damage as may arise from the performance of services under this
<br /> proper performance of CONSULTANT. agreement. CONSULTANT will, upon request, file certification of
<br /> such insurance coverage with CLIENT or hia authorized
<br /> 2.2 Furnish right of entry onto THE PROJECT site for CONSULTANT to representative.
<br /> make the necessary field studies and/or tests required as part of this
<br /> work. Free access to all shops, yards, or other aress where ARTICLE 5. CONFIDENTIALITY:
<br /> msteriala are prepared or stored must also be provided to
<br /> CONSULTANT. 5.1 All reports and/or information derived as part of CONSULTANT'a
<br /> study shall remain the property of the CONSULTANT.
<br /> 2.3 Designste in writing a person or firm to sct ss CLIENT's
<br /> representstive with respect to CONSULTANT's services to be 5.2 The CONSULTANT agrees to consider all reports to be confidential,
<br /> performed under this Agreement; such person or firm to have and will distribute reports only to those persons, organizations, or
<br /> complete authority to transmit instructions, receive information and agencies so directed by the CLIENT with the following exception as
<br /> data, interpret and define CLIENT's policiea and decisions with described in Article 5.3.
<br /> respect to THE PROJECT, and to order and schedule, at CLIENT's
<br /> expense, such technical services as may be requested by 5.3 Reports and/or information derived as part of CONSULTANT's study
<br /> CONSULTANT. may be released to Federal, State, County, or Local authorities where
<br /> a public safety hazard exists or where applicable statutes and
<br /> 2.4 Designate in writing those persons or firms who are authorized to regulations require the CONSULTANT to release information: where
<br /> receive copies of CONSULTANT's written reports. the CONSULTANT must comply with judicial court orders: and where
<br /> CONSULTANT must protect itself from civil claims. In such cases,
<br /> 2.5 Advise CONSULTANT sufficiently in advance of any operations so as the CLIENT will be notified in writing of the release of information.
<br /> to allow for assignment of personnel by CONSULTANT for completion and recommendations are for
<br /> of the required services. Such advance notice shall be in accordance 5.4 The CONSULTANT's report, findings,
<br /> with that estsblished by mutual sgreement of the psrties. the CLIENT's sale use and shall not be trsnsferred or sold to others
<br /> without the knowledge and consent of the CONSULTANT.
<br /> 2.6 Direct THE PROJECT contractor, either by the Construction Contract
<br /> or direct written order to: ARTICLE 6. UNANTICIPATED HAZARDOUS MATERIALS:
<br /> (a) Secure and deliver to CONSULTANT, without cost to
<br /> CONSULTANT, preliminary representative samples of those 6.1 The CLIENT understsnds that hazardous msterials on or beneath the
<br /> materials he proposes to use which require testing, together with surface of a site creates extraordinary riska for CONSULTANT
<br /> any relevant dats of the msterials. inclu<ling the need for precautions to protect the health and safety of
<br /> (b) Furnish such casual labor and all facilities needed by his personnel and to comply with applicable laws and regulations.
<br /> CONSULTANT to obtsin and hsndle samples at THE PROJECT
<br /> and to facilitate the specified observations and tests. 6.2 CLIENT agrees that the discovery of unanticipsted hazardous
<br /> (c) Provide and maintain for the use of CONSULTANT, adequate materials constitutes a changed condition mandsting s renegotiation of
<br /> space at THE PROJECT for safe storage and proper curing of the scope of work or terminstion of services.
<br /> test specimens which must remain on THE PROJECT site prior to
<br /> testing. 6.3 The discovery of unanticipated hazardous materials msy result in a
<br /> significant reduction of the CLIENT's property value or the OWNER's
<br /> ARTICLE 3. GENERAL CONDITIONS: value if the project site is owned by others. Since CONSULTANT is
<br /> in no way responsible for the presence of these hazsrdous materials,
<br /> 3.1 CONSULTANT, by the performance of services covered hereunder, CLIENT agrees to waive any claim against CONSULTANT and agrees
<br /> does not in any way assume, abridge, or sbrogate any of those to defend, indemnify, and hold harmless CONSULTANT from any claim
<br /> duties, responsibilities, or authorities with regard to THE PROJECT or liability for injury, loss, or damages arising from the discovery of
<br /> customarily vested in THE PROJECT architects, design engineers, or unanticipated hszardous materials.
<br /> any other design agencies or authorities.
<br /> ARTICLE 7. PAYMENT:
<br /> 3.2 CONSULTANT shsll not be responsible for acts or omissions of any
<br /> other party or parties involved in the design of THE PROJECT or the 7.1 CLIENT will pay CONSULTANT for services and expenses in
<br /> failure of any contractor or subcontractor to construct any item on accordance with the attsched fee schedule. CONSULTANT's invoices
<br /> THE PROJECT in accordance with THE PROJECT plans and will be presented at the completion of its work or monthly snd are
<br /> specifications. due on receipt. Failure to pay CONSULTANT's invoice within 30 days
<br /> shsll result in the addition of late payment charges calculated at a
<br /> 3.3 CONSULTANT is not authorized to revoke. alter, relax, eniarge, or rate of 1.5 percent per month on the unpaid balance.
<br /> release any requirement of THE PROJECT specifications or other
<br /> contract documents nor to approve or accept any portion of the work 7.2 CONSULTANT shall be paid in full for all services under the
<br /> unless, specifically authorized in writing by CLIENT or his authorized Agreement, including any overruns of CLIENT's contract or any
<br /> representative. CONSULTANT shall not have the right of rejection or unforeseen need for CONSULTANT's services exceeding original
<br /> the right to stop the work, except for such periods as may be contract req1rlrements. The CONSULTANT agrees not to conduct
<br /> required to conduct the sampling, testing, or observation of additional work without first discussing its need and reaching an
<br /> operations covered by the Agreement. agreement with the CLIE':T as to ~?e additional costs to be incurred.
<br /> 3.4 This Agreement may be terminated by either party upon receipt of ARTICLE 8. EXTENT OF AGREEMENT:
<br /> written notice or by mutual agreement. If this Agreement is
<br /> terminated by either party, CONSULTANT shall be paid in full for all The agreement, including these .terms and conditions, represents the
<br /> services performed through the termination date, and the CLIENT entire agreement between CLIENT and CONSULTANT and supersedes
<br /> shall be provided with a complete report of the results of tests and all prior negotiations, representations, or agreements, written or
<br /> analysis conducted prior to termination. oral. The agreement may be amended only by written instrument
<br /> signed by CLIENT and CONSULTANT.
<br /> 3.5 Neither CLIENT nor CONSULTANT may delegate, assign, sublet, or
<br /> transfer his duties or interest in this Agreement without the written ARTICLE 9. APPLICABLE LAW:
<br /> consent of the other party. The agreement shsll be 'governed by the laws of the State of Texas.
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<br /> Form 0790-1
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