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HomeMy Public PortalAboutr 04:113 OFFICE OF TItLEEN M. B~4RNE¥, RMC/CMC. 61 COOKE AVENUE MUNICI?AL CLERK CARTERET, NEW JERSEY 0700~ MEMORANDUM TO: Beacon Planning & C6nsulting Services, LLC. Colts Towne Plaza, Suite 207 41 State Highway 34 South Colts Neck, New Jersey 07722 FROM: KATHLEEN M. BARNEY, RMC/CMC Municipal Clerk DATE: March 26, 2004 SUBJECT: AUTHORIZNG A PROFESSIONAL SERVICES CONTRACT WITH BEACON PLANNING AND CONSULTING SERVICES. RE: MARINA AND FERRY SERVICES. ENCLS. Resolution #04-113. K_MB: ti Cc: Treasurer Purchasing Engineer No. 04-113 Date of Adoption_.. March 25 2004 AUTHORIZING A PROFESSIONAL PLANNING SERVICES CONTRACT WITH BEACON PLANNING AND CONSULTING SERVICES, RE: MARINA AND FERRY SERVICES WHEREAS, the Borough of Carteret is in need of professional planning, services with regard to the Marina and Ferry Service; and WHEREAS, Beacon Planning and Consulting Services, possesses the requisite knowledge, skill and experience to complete said professional planning services; and WHEREAS, Beacon Planning and Consulting Services has submitted a proposal for the above described planning services in an amount not to exceed $18,550.00, a copy of which is attached hereto; and WHEREAS, the Mayor and Council have reviewed said proposal; WHEREAS, the Chief Financial Officer has certified that funds are or will be available for said purpose. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Borough of Carteret, County of Middlesex, State of New Jersey, as follows: 1. That the proposal of Beacon Planning and Consulting Services to provide professional planning services with regard to the Marina and Ferry Service; in the amount not to exceed $18,550.00 is hereby approved. 2. That annexed hereto is a copy of said proposal. 3. That this action is approved as an award of a professional services contract. 4. That a copy of this resolution be forwarded to the Borough's Purchasing Department and Beacon Plamfing and Consulting Services. Adopted this 25th day of March, 2004 and certified as a tree copy of the original o~Jvlarch 26, 2004. Municipal Clerk -- RECORD OF COUNCIL VOTE COUNCILMAN YE___~_S N__~_Ot NV A.B--~ COUNCILMAN YE'--~ N---~-N~- A.B~'-~ KRUM X RIOS X ----- NAPLES X S ITARZ X PARISI X SOSNOWSKI X X - Indicate Vote AB - Absent NV - Not Voting XOR - Indicates Vote to Overrule Veto CD Adopted at a meeting of the Mnnicipal Council .~ /~__l!alr~h 25, 2004 · C[~RK ~ ~]~R--18-~004 ?HU li:02 ~N QENNR / BE~CO~ F~ NO, 732845916,4 P, 02 BEACON PLANNING & CONSULTING SERVICES, LLC. Colts Tow-ne Plaza, Suite 207 41 State Highway 34 South '" ' ~ eck, New Jersey 0777? Tel. 732.8458103 Colts N Fax 7.~_.845.8104 a Electrom~ Marl mayor~carteretnet and Reg~llar Mai~ ,~ 9~:~ F~bruary 6, 2004 The Honorable Daniel Reiman ;' "':. " Mayor Borough of Carteret ' 61 Cooke Avenue / Carteret, New Jersey 07008 Via Fax 732.324.7606 and Regular Mail Gill and Ch&mas PO Box 760 ~,~ Woodbridge, New Jersey 07095 Re: Marketing and Feasibilirv ,amah, sis C~r~eret Waterfront Red~velop[nent Marina and Commuter F~rry- Carteret, NJ Our file #A04009 Dear Mayor Reiman and Mr. Bergen, It is my understanding tluit the Borough of Carteret is currently in zhe initial planning stages of an extensive waterfront revitalization. Numerous elements are under consideration including a waterfront park, municipal marina, and the implementation of commuter fen3' service to Manhanan. it is my timber understanding that the Borough of Caneret is desirous of obtaining market insight into the marina mad ferry initiatives. Towards that end I am pleased to submit this proposal for professional sen,ices as tbllows: .Scope of Serriees A, _Marina Market and !Feas~tltW CME A~sociates recently completed a conceptual design of a 250 slip municipal marina and rein:ed facilities ('parking, ramps, utilities portable toilets). Utilizing this conceptual plan as a base project definition, Beacon will prepare a Limited Market Analysis based on intbrmation available, which wilt include: a demographic analysis designed to understand the composition of the specific sub-market of potential marina tenants, the current and projected market, and identity, trends and influences; an invemory of competing marinas of similar scope and draw within the H~R-]8-2004 1HU 1I:02 ~H GEHH~ / BEACON ~X NO, 7~28468]04 P, 03 local market and tb.e PUrger regional market; vmd m~ ~ssessznent of the design in lerms of amenities ,,nd their respective physical and perceived st.r~ngths ~d l~it~ions. Beacon's m~ke~ assessment will be limited to a re,enable competitive m~ket within New Jemey. in addition, Beacon Mr report on ~ket conditions b~ed on occupancy levels, remat rotes, tenet turnover, and ~ends ~ new m~na p[~ning ~d ~ns~uctio~ and define ~,d ~sess markets ~d su~ markets based on abso~tion, phcing, pricing ~cre~es, terns and domed indicators such as ~nvenro~ ~d w~ting li~s. Beacon will ~so contact local m~ket officials ~d review pl~ed maria ~ctivities d~med competitive M~n the sub-n~t in t~ms of new shps. facili~ upgrades and exp~sion, and new pla~ed f~i~ifie~. Ir is tl~e intent of fl~e ~ited s~y t~ provide ~e Borough ~ opi~on of ~ket position as well as ~ indicator of ~licipmed rents ~d occup~cy. O~ m~ker ~alysis M~ ~ conducted in ~e following fo~t: Defi~ ~e m~ket ~ea for the specific site. ~yze m~k~ domed ~t~n ~ ~e region. Conduct competitive s~e3 recording p~ed sli~ and s~e li~ratio~ of s~e, occup~cy and v~cy of sEps, av~age ~u~ abso~tin~ average price line~ foot. ~enities, ufilitim, p~g, ~ terns. · ' Report fin~s to ~c Bomu~. We ~ficipatc at two (2) ~o~e meet~gz wi~ Borough Officials ~g ~e M~ket Study in order to ~$cms o~ fin&~s. A dr~ ~po~ M~ be prese~ed w~ch will Lmcl~e ~o~endations ~ ~pect m t~ ~abiliW of ~e u~e~il~ ~d the whether ~e dcvelopmmt s~ate~' ~hoNd ~ mnfinued. Upon approvN by ~ Boro~h, six copies of the fi~ report Mil be s~miaed. B, ~ Service Demand Review and Survey Utilizing published findings reports initiated or otherwise prepared by private operator~ as well as data gathered, Beacon will report on findings related to the utilization of rhe iferry by existing residents and ;he anticipat~ growth in populalion driven by Carteret's redevelopment efforks. Beacon will obtain and review the findings of studies prepared by such agencies ~ the Port Authority of New York and New Jersey, the New Jersey Department of Transportation, and the like with respect to relevancy in terms of activity, Carteret's redevelopment plans and current market trends. Beacon will aim undertake a survey of a Cartere! residents aimed at de~erminlng the interest in this alternative method of transportation a~ well as verify projections with respect re commuting patterns, Beacon ~hll determine the survey criteria and target population distribmion, prepare and distribute survey :~brms. and collect and rally/ana/yze sun'ey responses. Our finds and opinions w/Il be summarized in a report. Beacon anticipates two (2) meetings with Borough officials :o discuss survey forms and results. Our findings will be presented in a MHR-18-2004 T~U 11:03 AM GEM~A / BEAOON FAX NO, 7328458104 P. 04 preliminary report to ~he Borough for reviews. Upon review and approval by Boroug ~ oliEcials six copies of our findings in final report form will be subr~itted. Our san,ices will be provided on a lump sum f~e basis pursumat to the General Terms and Conditions attached hereto and incorporated into this proposal liar professional services. Our fee for this assigranent Mil be as follows: A. Marina Market and Feasibility Analysis: $ 9,800.00 B. Ferry Service Demand Review and Survey: $ 8,750.00 Our proposal specifically excludes expenses related to mailing surveys and return respoi~se envelopes, which will be billet as a reimbursfi, ble expense. Should additional services or at~enflance at additional meetings be required, our fees will be billed on a time and material basis pursuant to the attached schedule of hourly rate. In addition to the above fees, you will be responsible for ordinary reimburseables such a photocopy/rig, reproduction, ordinance pumhase, and overnight mail. Iap. preciate the apportunity m submit this proposal and look forward to working with you on this project. If you would like me to proceed as outhned, please sisn where indicated below and re,mm a copy of this Agreement to my attention. Thank you for your continued consideration of Beacon Planning. V~ry trul?~ Andrew W. Janiw, P.P.~CP ' Gordon N Gemma, P P, AICP Principal ~ Principal Accepted and Agreed to tb. is __ day of Febma.,3, 2004 By: Authorized Representative of the Borough of Carteret N~R-18-2004 THU 11:03 ~N ~E~N~ / BEACON FR~ NO, 7328458104 P, 05 2004 SCHEDULE OF HOORLY RATE.~ Principals $125.00 per hour Project Professional $115.00 per hour Project Assistant $ 85.00 per hour Administrative Suppod $ 55.00 per hour Fax $0.25 per page Standard reproduction (letter or legal size) $0.10 per page Out-of-pocket expenses Cost plus 15% Outside services Cost plus '~ 5% ~R-18-2004 ?~U 11:04 ~N GENOA / BE~OON F~X NO, 722845B104 P, 06 BEACON PLANNING AND CONSULTING SERVICES, L.L.C. GENERAL CONDITIONS OF SERVICE Client: Borough of Carterat Project: Marina and Ferry Study P~oject Number.' A~400~t Date: Februm7 6, 2004 .0 BILLINGAND PAYMENT RETAINER. The C}iem $~sll make an in'riel retail, er pay~em! of $0.00 up=n executio.~ of thi~ Agree~1~nt Planning and Consulh~B ServiceS, L.L.C. (Beacon) will ~old smd appiy tt~is ~etainer as :e~ined in the REIMBURSABLE EXPENSES. Clien: ~hal~ pay ~acon for relmbursal~le expenses, inc!u~in~ application printing a~c reproduction, couder an~ ex~m$~ deliver'/Service, bulk amd special mal{i~gs, fa~imi~ transmissions, c~mputer COLLECTION COSTS. In me event legal a~'io~ is necessary to enferce the paymen: provisions of ~his AgreemenL SUSPENSION OF SERVICES. If Ihe Cllent fails to make pay~ent~ whe~ aue ~' etflen~ise is in PAYMENT OF INVOI~E8. Paymm~t cf invei~es ~s no~ s,.~b~,~3 to unilateral dia~untlng ~ set-~ffs by FEE DURA'nON 3.0 SCOPE OF ~ERVICES M R-18-2004 THU 11:04 AM GEMM / 8E OON FAX NO, 73284 8104 P, 07 4.0 STANDARD OF CARE The standard of c,~re for ser-vice~ performed or fur~lished by Beacon under th~s Agreentent will be the care and skil! ordinarily 5.0 INSURANCE and Professional Liability th$~rance at alt times ~n~l w~ll, upon request, furnish insurance certificates to the Client 6.0 CONSTRUCTION OBSERVATION SERVICES If the Scope of $e~/ices for this Agreement inc~uces c~nstructidn observation sen/ices, then the follow~ng provisions shall apply'. A During the project construction phase, Beacon shall consult with and advise Cl[ent and act as Client's representative as provided in the SCope of Services Tile extent and Iimitatiolls of the duties, responsibilit[es and aulhority of Beacon as outlined ld the Scope of Services shall not be .'nod~fied. except aa Beacon and Ciient may othen~jse agree i~1 wdting. B. Beacon's services dudng the Construction phase are intended to provide Clio,,! e greater degrae of confidence that the Comptste~ work o! Contractor w~ll confo~?n in general to the af3preved plans and ~elated documents and to provide s general opinion of value of work-in-place 13aced on published references typically utilized in the industry. Beacun shall not. during v~ts to the project site oi' aa a result of observation of Con!i'ac!om work in re~por~sibili~ for ~ha means, methods, techniques, sequences or p~ocadures of construction selected by Contractor, for safety precautions and programs incident ~o the work of Contrac,'or or fo~ any faiiu~ of Contractor to comply wfth laws, ruiss, feeble,ieee, ordinances, codes or orclera applicable to Contractors furnishing and performing the work, Ac,¢ordJng~y, Beacon neither guarantees the performance of shy with the Contract Documents. 7.0 INDEMNIFICATION IBeacon agrees subject to the provis~ns hoc'ail1, to indemnify and hold the Client harnt[ess from any damage, liability Or cost to the ex!eat caused SOlely by So,con's negligent acts, errors or omissions in the perfor,'rlance of professional Services under this Agreement. The Cllent agrees to indemllity and hold Beacon ~larm[ess from any damage, liability or cost (Including reasonable attorneys' fees arid costa ct defense) to the extent caused by the Client's negligerlt acts. errom or omissions and tho~ of his or her cen~tactors, sa~'.,ontrac~rs or consultants or anyone for whom tile Cllent is legally IisPls. ~}eacon is tlc! obligated to in¢~ernnifi/the Client for the Clients own negligence, 8.0 LIMITATION OF LIABILITY Client and Beacon recognia:e and agree that Seacon'a tiability for any and all claims ar actions, regardless of how arising, sr~ail be limited t~ the total sum of $25,0{)0.00, or Beacon's total fee for services rendered on this prelect, whichever ~ [ess Client he~el~y releases Beacon from any ~iahility above such amounl~, Such cJeirns and causes include, bul are not lim~ed to negligence, professional error or omi~idna, strict liability, brea~h of contract ct breach of warranty. In no event shall Beacon be liaPle for any incidental, indlrect or conaeduential damages, illcluding commercial loss. or lost profits resulting ~ any 9.0 OWNERSHIP AND REUSE OF DOCUMENTS at the CIients sole :isk and without liability or legal exposure !o Beacon. The C~ient shall indemnify, oetend and hold HaR-18-2004 THU 11:0~: aH ,$EHHa / BEACON F~ NO, 732845B1~4 ?, 08 CapyrJght Act, 10.0 CONSEQUENTIAL DAMAGEs 11.0 DELAYS be deemed to ~ in defaUt of L~s A~reemer.[. 12,0 CoRpORATE PROTECTION in~iv[:lual emplc~yee~, office~s or directors to ally 0ersonal lec~ai exposure for the risk= associated with t~i~ project. Therefo~a, t3,0 OVERTIME SERVICES 14.0 OPINIONS OF PROBABLE COST OR VALUE OF WORK..iN~LACE lS.0 HAZARDOUS MATERIALS the job $~e, or shoul~ it became knewn in any way that iu~ mete~ial~ rosy be present at the jOB site ~' any ao~a~,nt areas t6,0 GOVERNING LAW 17.0 SURVIVAL HRR-18-2004 THU 11:07 aM GE~Ha / BEhCON F~X NO, 7328458104 P, 09 ENTIRE AGREEMENT ~ Thi~ A~reemerlt [;on~isflll0 of (1) Propasal ~cop~ of 8e~l~ a~ (2) ~no~ C~ditions) ~mpri~es ~ final cc~plete agreement ~tw~ the Cf~nl ~d Beacon. It su~es all prior or co~fem~ra~aous ¢ommunm~ons, BEACON PLANNING & CONSULTING SERVICES, LL.C. Colts Towne Plaza, Suite 207 41 State Highway 34 South Colts Neck, New Jersey 07722 Tel. 732.845.8103 Fax 732.845.8104 Via Electronic Mail mayor~carteret.net and Regular Mail February 6, 2004 The Honorable Daniel Reiman Mayor, Borough of Carteret 61 Cooke Avenue Carteret, New Jersey 07008 Via Fax 732.324.7606 and Regular Mail Robert J. Bergen, Esq. Gill and Chamas PO Box 760 Woodbridge, New Jersey 07095 Re: Marketing and Feasibility Analysis Carteret Waterfront Redevelopment Marina and Commuter Ferry Carteret, NJ Our file #A04009 Dear Mayor Reiman and Mr. Bergen, It is m.y understanding that the Borough of Carteret is currently in the initial planning stages of an extensive waterfront revitalization. Numerous elements are under consideration including a waterfront park, municipal marina, and the implementation of commuter ferry service to Manhattan. It is my further understanding that the Borough of Carteret is desirous of obtaining market insight into the marina and ferry initiatives. Towards that end I am pleased to submit this proposal for professional services as follows: Scope of Services A. Marina Market and Feasibility Analysis CME Associates recently completed a conceptual design of a 250 slip municipal marina and related facilities (parking, ramps, utilities, portable toilets). Utilizing this conceptual plan as a base project definition, Beacon will prepare a Limited Market Analysis based on information available, which will include: a demographic analysis designed to understand the composition of the specific sub-market of potential marina tenants, the current and projected market, and identify trends and influences; an inventory of competing marinas of similar scope and draw within the local market and the larger regional market; and an assessment of the design in terms of amenities and their respective physical and perceived strengths and limitations. Beacon's market assessment will be limited to a reasonable competitive market within New Jersey. In addition, Beacon will report on market conditions based on occupancy levels, rental rates, tenant turnover, and trends in new marina planning and construction, and define and assess markets and sub- markets based on absorption, pricing, pricing increases, terms, and demand indicators such as inventory and waiting lists. Beacon will also contact local market officials and review planned marina activities deemed competitive within the sub-market in terms of new slips, facility upgrades and expansion, and new planned facilities. It is the intent of the limited study to provide the Borough an opinion of market position as well as an indicator of anticipated rents and occupancy. Our market analysis will be conducted in the following format: · Define the market area for the specific site. · Analyze market demand within in the region. · Conduct competitive survey recording planned slips and size limitations of same, occupancy and vacancy of slips, average annual absorption, average price linear foot, amenities, utilities, parking, and terms. · Report findings to the Borough. We anticipate at two (2) periodic meetings with Borough Officials during the Market Study in order to discuss our findings. A drafi report will be presented which will include recommendations with respect to the viability of the undertaking and the whether the development strategy should be continued. Upon approval by the Borough, six copies of the final report will be submitted. B. Ferry Service Demand Review and Survey Utilizing published findings, reports initiated or otherwise prepared by private operators as well as data gathered, Beacon will report on findings related to the utilization of the ferry by existing residents and thc anticipated growth in population driven by Cartcret's redevelopment efforts. Beacon will obtain and review the findings of studies prepared by such agencies as thc Port Authority of New York and New Jersey, thc New Jersey Department of Transportation, and thc like with respect to relevancy in terms of activity, Carteret's redevelopment plans and current market trends. Beacon will also undertake a survey of a Carteret residents aimed at determining the interest in this alternative method of transportation as well as verify projections with respect to commuting patterns. Beacon will determine the survey criteria and target population distribution, prepare and distribute survey ~brms, and collect and tally/analyze survey responses. Our finds and opinions will be summarized in a report. Beacon anticipates two (2) meetings with Borough officials to discuss survey forms and results. Our findings will be presented in a preliminary report to the Borough for review. Upon review and approval by Borough officials, six copies of our findings in final report form will be submitted. Our services will be provided on a lump sum fee basis pursuant to the General Terms and Conditions attached hereto and incorporated into this proposal for professional services. Our fee for this assignment will be as follows: A. Marina Market and Feasibility Analysis: $ 9,800.00 B. Ferry Service Demand Review and Survey: $ 8,750.00 Our proposal specifically excludes expenses related to mailing surveys and return response envelopes, which will be billed as a reimbursable expense. Should additional services or attendance at additional meetings be required, our fees will be billed on a time and material basis pursuant to the attached schedule of hourly rate. In addition to the above fees, you will be responsible for ordinary reimburseables such a photocopying, reproduction, ordinance purchase, and overnight mail. I appreciate the opportunity to submit this proposal and look forward to working with you on this project. If you would like me to proceed as outlined, please sign where indicated below and return a copy of this Agreement to my attention. Thank you for your continued consideration of Beacon Planning. Very truly yours, ~P ~Ge~ma~, P.P., AICP Principal ~/~;~dc. epted and Agreed to this ay of ~aoru~yr 2004 - y: ~horized ~pr2sentative of the Borough of Carteret 2004 SCHEDULE OF HOURLY RATES Principals $125.00 per hour Project Professional $115.00 per hour Project Assistant $ 85.00 per hour Administrative Support $ 55.00 per hour Fax $0.25 per page Standard reproduction (letter or legal size) $0.10 per page Out-of-pocket expenses Cost plus 15% Outside services Cost plus 15% BEACON PLANNING AND CONSULTING SERVICES, L.L.C. GENERAL CONDITIONS OF SERVICE Client: Borough of Carteret Project: Marina and Ferry Study Project Number: A04009 Date: February 6, 2004 1.0 BILLING AND PAYMENT RETAINER. The Client shall make an initial retainer payment of $0.00 upon execution of this Agreement. Beacon Planning and Consulting Services, L.L.C. (Beacon) will hold and apply this retainer as defined in the proposal. REIMBURSABLE EXPENSES. Client shall pay Beacon for reimbursable expenses, including application fees, printing and reproduction, courier and express delivery service, bulk and special mailings, facsimile transmissions, computer design technology, specialized equipment and laboratory charges, costs of acquiring materials specifically for Client and related charges. The reimbursable expenses will be added to each monthly invoice. INVOICES. Beacon shall submit invoices monthly and payment in full is due upon presentation. Our invoices are due and payable upon receipt since there is generally a relatively significant time lag between the rendering of our services and the submission of our statement. INTEREST. If any invoice is not paid in full within thirty (30) days of receipt, the Client shall pay as interest an additional charge of one-and-one-half percent (1.5%) (or the maximum allowable by law, whichever is lower) per month of the PAST DUE amount. Payment after that shall first be applied to accrued interest and then to the unpaid principal. COLLECTION COSTS. In the event legal action is necessary to enforce the payment provisions of this Agreement, Beacon shall be entitled to recover from the Client the reasonable attorneys' fees, court costs and expenses incurred by Beacon in connection therewith. SUSPENSION OF SERVICES. if the Client fails to make payments when due or otherwise is in breach of this Agreement, Beacon may suspend performance of services at any time after providing notice to the Client. Beacon shall have no liability whatsoever to the Client for any costs or damages as a result of such suspension mused by any breach of this Agreement by the Client. PAYMENT OF INVOICES. Payment of invoices is not subject to unilateral discounting or set-offs by the Client, and payment for actual services rendered is due despite suspension or termination of this Agreement by either party. 2.0 FEE DURATION The proposed fees set forth in this Agreement shall be open for acceptance for sixty (60) days from the above date. If the Agreement is signed after that date, the proposed fees may be adjusted prior to commencement of services, subject to agreement by the Client and Beacon. The hourly rates charged for Beacon employees are adjusted annually in January to reflect changes in the various elements that comprise such hourly rates. All adjustments will be in accordance with generally accepted accounting practices as applied on a consistent basis by Beacon and consistent with Beacon's overall compensation practices and procedures. Where Lump Sum Contracts are signed, and the services provided by Beacon extends beyond a date months after the date of the execution of this Agreement, the quoted prices shall be subject to an increase in accordance with the NY/NJ Consumer Price Index, using the date of this Agreement as a base, In the event that a Lump Sum Contract item is partially completed at such time that the lump sum price is to be adjusted, the balance of the lump sum fee still to be billed as of the anniversary date shall be increased based on the NY/NJ Consumer Price index as indicated above, 3.0 SCOPE OF SERVICES Descriptions of the Services to be provided by Beacon are set forth in the Proposal/Scope of Services. Services not set forth in the Scope of Services are excluded from the scope of Beacon's services and Beacon assumes no responsibility to perform such additional services under the base Contract. Jf additional work becomes necessary during the course of the project, Beacon can perform such Additional Services in accordance with a written Agreement between the Client and Beacon setting forth the additional services and fees. 4.0 STANDARD OF CARE The standard of care for services performed or furnished by Beacon under this Agreement will be the care and skill ordinarily used by members of the same profession practicing under similar conditions at the same time and in the same locality based on facts and information available at the time services are provided. $.0 INSURANCE Beacon shall maintain, at its own expense, Workers Compensation insurance, Comprehensive General Liability Insurance and Professional Liability Insurance at all times and will, upon request, furnish insurance certificates to the Client 6.0 CONSTRUCTION OBSERVATION SERVICES If the Scope of Services for this Agreement includes construction observation services, then the following provisions shall apply: A. During the project construction phase, Beacon shall consult with and advise Client and act as Client's representative as provided in the Scope of Services. The extent and limitations of the duties, responsibilities and authority of Beacon as outlined in the Scope of Services shall not be modified, except as Beacon and Client may otherwise agree in writing. B. Beacon's services during the Construction phase are intended to provide Client a greater degree of confidence that the Completed work of Contractor will conform in general to the approved plans and related documents and to provide a general opinion of value of work-in-place based on published references typicelly utilized in the industry. Beacon shall not, during visits to the project site or as a result of observation of Contractors work in progress, supervise, direct or have control over Contractor's work nor shall Beacon have authority over or responsibility for the means, methods, techniques, sequences or procedures of construction selected by Contractor, for safety precautions and programs incident to the work of Contractor or for any failure of Contractor to comply with laws, rules, regulations, ordinances, codes or orders applicable to Contractors furnishing and performing the work. Accordingly, Beacon neither guarantees the performance of any Contractor nor assumes responsibility for any Contractors failure to fumish and perform its work in accordance with the Contract Documents. 7.0 INDEMNIFICATION Beacon agrees subject to the provisions herein, to indemnify and hold the Client harmless from any damage, liability or cost to the extent caused solely by Beacon's negligent acts, errors or omissions in the performance of professional Services under this Agreement. The Client agrees to indemnify and hold Beacon harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the Client's negligent acts, errors or omissions and those of his or her contractors, subcontractors or consultants or anyone for whom the Client is legally liable. Beacon is not obligated to indemnify the Client for the Clients own negligence. 8.0 LIMITATION OF LIABILITY Client and Beacon recognize and agree that Beacon's liability for any and all claims or actions, regardless of how arising, shall be limited to the total sum of $25,000.00, or Beacon's total fee for services rendered on this project, whichever is less. Client hereby releases Beacon from any liability above such amount. Such claims and causes include, but are not limited to negligence, professional error or omissions, strict liability, breach of contract or breach of warranty. In no event shall Beacon be liable for any incidental, indirect or consequential damages, including commercial loss, or lost profits resulting from any Service furnished under this agreement. 9.0 OWNERSHIP AND REUSE OF DOCUMENTS All reports, plans, specifications, computer files, field data, notes and other documents and instruments prepared by Beacon pursuant to this Agreement ("Documents") are and remain the property of Beacon as instruments of service with respect to this Agreement. The Documents are not intended or represented to be suitable for reuse by the Client or others m extensions of this project or on any other project. Any reuse of the Documents without the wriffen approval by Beacon will be at the Clients sole risk and without liability or legal exposure to Beacon. The Client shall indemnity, defend and hold harmless Beacon from and against any claims, damages or losses including attorney's fees and costs, arising out of or resulting therefrom. Beacon grants to the Client and only the Client a non-exclusive, non-assignable and non-transferable license to reproduce, distribute and display the Documents, to the extent necessary for the Client to undertake the project. Beacon shall retain all common law, statutory and other reserved rights to the Documents, including the copyright thereto. Both the Client and Beacon agree that none of the services or Documents provided by Beacon are "work made for hire" as defined in the Copyright Act. I0.0 CONSEQUENTIAL DAMAGES Notwithstanding any other provision of the Agreement, neither party shall be liable to the other for any consequential damages incurred due to the fault of the other party, regardless of the nature of this fault or whether it was committed by the Client or Beacon, their employees, agents, subconsultants or subcontractors. Consequential damages include, but are not limited to, loss of use or profit. 11.0 DELAYS Beacon is not responsible for delays caused by factors beyond Beacon's reasonable control, including but not limited to delays because of strikes, lockouts, work slowdowns or stoppages, accidents, acts of God, failure of any governmental or other regulatory authority to act in a timely manner, failure of the Client to furnish timely information or to provide review comments promptly; or delays caused by faulty performance by the Client or by contractors of any level. When such delays beyond Beacon's reasonable control occur, the Client agrees that Beacon is not responsible for damages, nor shall Beacon be deemed to be in default of this Agreement. 12.0 CORPORATE PROTECTION It is intended by the parties to this Agreement that Beacon's services in connection with the project shall not subject Beacon's individual employees, officers or directors to any personal legal exposure for the risks associated with this project. Therefore, the Client agrees that as the Client's sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against Beacon, a New Jersey corporation, and not against any of Beacon's employees, officers or directors. 13.0 OVERTIME SERVICES For professional services billed on an hourly basis, Beacon shall bill all overtime services performed by hourly wage earners (non-exempt employees) at one and one-half (1 1/2) times the standard hourly rate. 14.0 OPINIONS OF PROBABLE COST OR VALUE OF WORK-IN-PLACE In reviewing Beacon's opinions of probable construction cost or opinion of value of work-in-place, the Client understands that Beacon has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that any opinions of probable construction costs or value of work-in-place provided by Beacon are to be made based on Beacon's qualifications and experience as well as on published standards typically utilized in the industry. Beacon makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. 15.0 HAZARDOUS MATERIALS It is acknowledged by both parties that Beacon's scope of services does not include any services related to asbestos or hazardous or toxic materials. In the event Beacon or any other party encounters asbestos or hazardous or toxic materials at the job site, or should it became known in any way that such materials may be present at the job site or any adjacent areas that may affect the performance of Beacon's services, Beacon may, at its sole option and without liability for censequenfial or any other damages, suspend performance of services on the project until the Client takes steps to identify, abate and/or remove the asbestos or hazardous or toxic materials, and to warrant that the job site is in full compliance with applicable laws. 16.0 GOVERNING LAW The laws of the State of New Jersey will govern the validity of this Agreement, its interpretation and performance. Any litigation arising in any way from this Agreement shall be brought in the Courts of New Jersey. 17.0 SURVIVAL All express representations, indemnifications or limitations of liability made in or given in this Agreement will survive the completion of all services of Beacon under this Agreement or the termination of this Agreement for any reason. 18.0 ENTIRE AGREEMENT This Agreement (consisting of (I) Proposal Scope of Services and (2) General Conditions) comprises the final and complete agreement between the Client and Beacon. It supersedes all prior or contemporaneous communications, representations, or Agreements, whether oral or written, relating to the subject matter of this Agreement. Execution of this Agreement signifies that each party has read the document thoroughly, has had the opportunity to have questions explained by independent counsel and is satisfied with the terms and conditions Contained herein. Amendments to this Agreement shall not be binding unless made in writing and signed by both the Client and Beacon. C:beacongencon