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HomeMy WebLinkAbout5H Ridgemont Change Order (13-001) O � PWp � � U rry 4646 Dakota Street SE +1 'INx�so'��` Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: AUGUST 26, 2013 AGENDA #: 5H PREPARED BY: LARRY POPPLER, CITY ENGINEER/INSPECTIONS DIRECTOR PRESENTER: LARRY POPPLER AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION APPROVING CHANGE ORDER NUMBER 1 FOR THE RIDGEMONT / MAIN / TH 13 IMPROVEMENT PROJECT (CITY PROJECT #13-001) DISCUSSION: Introduction The original bid from Chard Tiling and Excavating contained an extremely high price for stop bar pavement striping caused by an error in the bid proposal. Since under state purchasing law we cannot alter a bid, this agenda item considers approval of a change order to eliminate this item from the contract. Hi StON In 2008, the City completed a Feasibility Report for the improvement of the intersection of Ridgemont Avenue, Main Avenue, Trunk Highway 13, and County State Aid Highway 44. The Feasibility Report discussed traffic demands, safety and access issues, roadway geometric design, urban design elements, right of way impacts, and preliminary cost estimates. Currently the orientation of this intersection is confusing. The close proximity of Ridgemont and Main Avenue to Highway 13 complicate navigation. The efficiency of this intersection is poor as vehicles must frequently wait on Ridgemont Avenue during peak hours as traffic backs up on at Highway 13. The proposed project includes the reconstruction of Ridgemont Avenue and Main Avenue on the west side of Highway 13. Reconstruction of County Road 44 on the east side of this intersection will not be changed significantly, however a new traffic signal at Highway 13 will be constructed. Updated pedestrian facilities, stormwater ponding, and trail reconstruction will be a part of the project. Once the Feasibility Report was completed, this project was incorporated into the 10 year Transportation Plan and the 5 year Capital Improvement Plan. This project has been programed in these planning documents since 2009. The City has worked with MNDOT and Scott County in coordinating funding for this project in the year 2013. On September 10, 2012, the City commissioned WSB and Associates to perform the engineering design for the project. Since this authorization, WSB has been busy designing this project. On December 4, 2012, the City learned that we were successful in securing additional dollars, $674,763, for this project in the form of the "MNDOT Cooperative Agreement Program". This additional funding reduces the amount of City Municipal State Aid and City Tax Levy which was planned for this project. On May 28th, 2013, the City Council approved several resolutions including a resolution authorizing the advertisement for bids on the project. On July 22, 2013 the City awarded a contract with Chard Tiling in the amount of $2,103,380.45 for the construction. Current Circumstances Chard Tiling and Excavating has begun construction. Trees have been removed and grading is scheduled to start later this week. The original bid from Chard Tiling contained an extremely high cost for Stop Line White — Epoxy. This line item is for the pavement painted stop bars at the intersection. For this line item the bid price is typically between $8 -$9 per linear foot. In this case the contractor bid $856 per linear foot. This resulted in a cost of $54,784 for stop bar paint placement instead of an expected $550. Conclusion It is recommended that this work be deleted in totality from the contract. The City would either hire a separate contractor to perform this work at a later date or agree to a supplemental agreement with the contractor at a different price. ISSUES: This change order reduces the cost of the construction contract. Additional cost saving on the project has been discussed with the Contractor. The quantities used on several other line items will be reduced to further reduce cost. These quantity reductions do not require a change order, but will be documented in the field and reflected in the monthly payments to the contractor. FINANCIAL This change order reduces the contract amount from $2,103,380.45 to IMPACT: $2,048,596.45. This change order will reduce funding from the Construction Fund for this project. The amount of State Aid dollars used for this project will be reduced accordingly. ALTERNATIVES: 1) Approve a resolution approving change order #1 for the Ridgemont / Main / TH 13 Improvement Project. 2) Deny this item for a specific reason and provide Staff with direction. 3) Table this item until some date in the future. RECOMMENDED Alternative No. 1. MOTION: 2 O � PRIp ti � U t�y 4646 Dakota Street SE `�INx�so'��' Prior Lake, MN 55372 RESOLUTION 13-xxx A RESOLUTION APPROVING CHANGE ORDER #1 FOR THE RIDGEMONT 1 MAIN 1 TH 13 IMPROVEMENT PROJECT (CITY PROJECT #13-001) Motion By: Second By: WHEREAS, The City Council initiated a project with Chard Tiling and Excavating on July 22, 2013 for the Ridgemont / Main / TH 13 Improvement Project (City Project #13-001); and, WHEREAS, The bid from Chard Tiling and Excavating included an extremely high price for "24" Stop Line White — Epoxy"; and, WHEREAS, Change order #1 eliminates the line item "24" Stop Line White — Epoxy". NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. Change order #1 eliminating "24" Stop Line White — Epoxy" in the amount of $54,784 is hereby approved reducing the total contract amount to $2,048,596.45. 3. Municipal State Aid funding will be reduced as a result of change order #1. PASSED AND ADOPTED THIS 26TH DAY OF AUGUST 2013. YES NO Hedber Hedber Keene Keene McGuire McGuire Morton Morton Souku Souku Frank Boyles, City Manager I t i a Element Materials Technology P b51 645 3601 ;�` e1ement � 662 Cromwell Avenue F 651 659 7348 St Paul, MN T 888 786 7555 55114-1720 USA infos[paul@element.com element.com August 15, 2013 Mr. Larry Poppler, P.E. Copy to; Ipoppler citvofqriorlake.com City Engineer dsterna ,�wsbenq.com City of Prior Lake tqlrtri(c�wsbenq.com 4646 Dakota Avenue Prior Lake, MN 55372-1714 : Fax: 952-447-4245 RE: Proposal for Construction Testing Services City of Prior Lake 2013 Improvement Project No. 13-001 TH 13 and Main Avenue/Ridgemont Improvements S. P. 7001-108, S.A. P. 201-119-002, S.A. P. 201-010-003 Prior Lake, Minnesota Dear Mr. Poppler: Element Materials Technology St. Paul Inc. thanks you for the opportunity to submit this proposal for testing and inspection services for the above referenced project within the City of Prior Lake, Minnesota. In this proposal, we outline the scope of construction material observation and testing services we can perForm and provide a fee schedule with an overall cost estimate for our services. BACKGROUND INFORMATION: The 2013 City of Prior Lake Improvement Project consists of 0.4 miles of street reconstruction as well as storm sewer, signal system, and watermain construction at a construction cost of $2.1 million. The project is scheduled to begin August 26 of 2013 and be completed by late November 2013. SCOPE OF SERVICES We will assign experienced certified materials technicians to provide construction material testing for the above referenced project. The technicians and laboratory personnel working on the project will be MnDOT certified in Aggregate Production, Grading & Base I and II, Concrete Field I, Concrete Plant I, and Bituminous Plant I for their area of expertise as is required on State Construction projects. The technician's and laboratory personnel's work will be provided under the direct supervision of a registered professional engineer, so we comply in genera! accordance with ASTM: A329, D3740, and C1077. We anticipate our testing and inspection services will be Quote Number ESP00378930Q/i August 15, 2013 Page 1 of 4 '"�'� element'° provided on a part-time intermittent basis, coordinated through your site personnel. The testing we can provide for this project is outlined as follows: • Perform sand cone soil density tests on sub-grade, embankment, and utility backfill materials including granular borrow material. • PerForm Modified Dynamic Cone Penetrometer (DCP) tests on aggregate base material. • PerForm moisture content tests at time of compaction on all backfill materials. • Perform laboratory soil Proctor tests (ASTM D698, ASTM D1557) which identify optimum moisture and dry density conditions of soil. • Perform mechanical analysis (gradation) testing (ASTM C136, C117) for granular borrow, Class 5 or 6 aggregate base, granular bedding, aggregate filter, topsoil, and extracted bituminous (asphalt) samples. • Perform slump, temperature, and air entrainment testing of the fresh concrete for curbing, driveway aprons, and sidewalk; cast 4" x 8" concrete test cylinders; pickup, cure and perform laboratory compressive strength testing on concrete test cylinders and flexural strength testing of beams cast in the field by Element or the contractor's personnel. • Collect one verification sample per mix per day of production. Perform quality assurance tests on these samples which include rice specific gravity, asphalt content, extracted aggregate gradation, gyratory density, coarse aggregate angularity, fine aggregate angularity, and thickness and density of pavement cores. • Randomly determine and mark pavement core locations. • Observe the contractor coring and core testing in accordance with MnDOTs specifications, which include watching quality control personnel weigh the cores at their laboratory. • Provide reports of our testing and inspection services. TEST RESULTS/REPORTS Our field personnel will communicate verbal test results to the City Inspectors as soon as possible. Daily typewritten reports will be prepared by our technicians discussing the testing and inspection services provided. The field reports, along with typewritten laboratory test data, will be submitted weekly to you and to the parties you designate. FEES As requested in your RFP, we have attached a fee schedule outlining our unit rate pricing for items you have requested. We charge for our testing and inspection on a unit price basis. Our final charges will be based on the actual scope of work requested and authorized, extended at the unit prices shown on the enclosed fee schedule. An ove�time multiplier of 1.25 will be applied to work outside of normal working hours of Monday through Friday, 7:00 am to 5:00 pm. Hou�ly personnel rates are charged portal to portal. This fee schedule will remain valid through December 31, 2013. Quote Number ESP00376930Q1i August 15, 2013 Page 2 of 4 . ''�''"� element'° We were asked to provide a base price amount for the 2013 Improvement Project. We estimate a BASE PRICE of $18,691.00. This doliar amount was based on estimated quantities of testing provided by the City of Prior Lake. This dollar amount is based on the assumption that the contractor will perform their work in a timely manner according to standard construction practices and schedule. Please see attached the cost break down for the 2013 City Improvement Project. PERSONNEL/QUALIFICATIONS: Our laboratory is accredited by the American Association of State Highway and Transportation Officials (AASHTO) as well as the International Code Council (ICC) for concrete testing. Our AASHTO accreditation also includes certifications in Hot Mix Asphalt, Hot Mix Asphalt Aggregates, and Soil. Our technicians are certified by ACI, MnDOT, and the NRC. We have proven that we can provide quality test results at an economical price. GENERAL TERMS AND CONDITIONS We understand that the services we would provide for the City of Prior Lake would be performed under a mutually agreed upon Standard Agreement for Professional Services Contract between our firm and the City. We have included our standard terms and conditions for your review and we request these are included in the contract. CLOSURE We Iook forward to working with you on this project. Please indicate your acceptance of this proposal by signing one copy and returning it to us as our notice to proceed. If you have any questions regarding this proposal, please contact Mark Straight at 651-659- 7447 office or by mobile phone at 651-248-2846 or by email mark.straightCa�element.com. Sincerely, ELEMENT MATERIALS TECHNOLOGY ST. PAUL Inc. � (.,.� ' `�` � �-, ��-��.. - Kevin Zalec, P.E. Mark Straight, P.E. MN Reg. No. 47909 MN Reg. No. 41658 Staff Engineer Senior Project Engineer Enclosures: 1-Construction Testing Estimate Worksheet/Fee Schedule (1 page) 1-General Terms and Conditions (2 pages) Quote Number ESP00378930Q/i August 15, 2013 Page 3 of 4 m i element'" Acceptance: Signature Printed Name Title Date \ProposalslCity of Prior Lake Main end Ridgemount Avenue.doc Quote Number ESP00378930� August 15, 2013 Page 4 of 4 � 0000 0 0 00000 0000000000 000 0 N 0000 O O �,OOOO O0O �O�OOOO 0OO � T 0 O�p O O O O ap a0 O� O N pp O p O�p p O O N' p O� � � COtn00 u� M �(DOM(D MpNpO.-NNM� �pa000� � C� N CD CC N M �t � �(C CO t!� t0 �� CD f'� d' M pp b9 � F+H 69 b9 Ef� � Ef-? d9 E�9 69� 69 � E��� � Efl � 69 EA� 69 69 � Efl Efl � � � y-+ � H � � � �~ 000° ° o 00000 000°0°0000 0°00 0 �� 000° ° o 00000 000°0°0000 0°0o V Q � N N � � N N N N �A tn N N� Ln N�� ��� N O N CO N �. tn � f� N Y� tn �� N 11') CO CO I� CO CO M N 00 V N � a EA EA ff> y � E9 EA EA d� Efl Efl Efl EA Efl y� ffl � E�9 EA b9 d9 b9 � E+9 b9 O � �, o � � — ° o t) � � o � 0 M +, o V`' � O �ti N O O CD N a0 CO O � NN� u��.,�00Cfl N � ��' ��.,�C0 00 00 00 00 00�� N d'00C'� � L a Q� Z � a Y +� c � � U � `` t t L L � � L t L `` L L L t L L L L `� �h„ L � �� >> U U U U >> U U U �� U U U U U U U U >>>�U J.� M p p f0 (0 fd L Oe- == W W ==WWW ==WwwwWWww ===W � ,O a =cn �H� a. � � a� a p � Cc E ���d � V � � > � ,= N > N �n �a� m � d � o � � _ � • � a �o � V � N � � � � � U M � ° o rn a� � � ~ c > °� � cn .• N� d = m N � N c� N c N V `Q � � Q� � U C O' � N 00 � U' Q � C ._-. > � �+ � � O � � �X � 7 V � f0 C fn t!1 � tQ � E O —� Z U m � C� U C � ` O � W � N �cnt o � c � o E a o c� ��, � �•� u� � � � o � :... ,° a� U u� �n ' .. co � � �.�° o.c� � �o� °�a�> m c��� �V� ' m� N �`' c �� v�� °� � G�iVe�` c�, a� �p c E�� c v� m � . a> > 'v � c� �n m > .c «. � �� a> .� c�,a '> � t� C �p Q1 Y �� C UI d V C N 7� N.�.. !0 C�' 4: �(A Vj � �� � U > C ` � o� m V>� �a'�n y� w�� �� aC� ���, � c cv o v� c � om `_ , � $ � ° ��� `o o °c ���?� V �`o��aQ` :o ��L�Nd�c �N.�.�YyLroroa�iQY n�,a.oN n W� �� O y N.` C� p N•` �� cQ V tn X� N� t•C � p N , C, Nc9c�ina`a��Ui.�c�t��►-mm��¢wc�ai��-�aacnaf-- element" GENERAL TERMS AND CONDITIONS OF SALE AND PERFORMANCE OF TESTING SERVICES BY ELEMENT MATERIALS TECHNOLOGY ST. PAUL INC.a North Carolina business corporation (" ELEMENT ") dated 12/02/2011. 1. Application; Formation of Contract. These General Terms and Conditions of Sale and Performance of Testing Services (the "Terms and Conditions") shall apply to all acts in respect of the purchase and sale of testing and other services (the "Work"j pursuant to any contract (a "Cont►act") to which these Terms and Conditions are made applicable. The submission by a party ("Customer") of any sample to ELEMENT for testing or similar services shall, upon acceptance of such sample by ELEMENT for such services, constitute an e�cpress Contract to which these Terms and Conditions apply. All orders for Work are subject to ELEMENT's approval and acceptance. 2. Modification and Waiver, Other Terms. No provision in these Terms and Conditions may be varied or waived except by a writing specifically describing such variance or waiver signed by an officer of ELEMENT. ELEMENT's acceptance or acknowledgement, even if in writing and signed by ELEMENT, of Customer's purchase order or any other document pertaining to the Work shall not be deemed an acceptance of any provision of Customer's purchase orde� or any other document that conflicts with or adds to these terms and conditions, absent a separate agreement in writing signed by ELEMENT expressly acknowledging and agreeing to such provisions. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT TERMS AND CONDITIONS SET FORTH IN ANY ORDER FORM, PURCHASE REQUEST OR CONFIRMATION PROVIDED BY CUSTOMER ADD TO OR CONFUCT WITH THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL PREVAIL AND GOVERN. ELEMENT'S ACCEPTANCE OF A CONTRACT TO PERFORM WORK IS EXPRESSLY CONDITIONAL ON CUSTOMER'S AGREEMENT AND ASSENT TO THESE TERMS AND CONDITtONS. 3. Prices for the Work; Payment. Prices quoted by ELEMENT for the Work are solely for the perFortnance of the Work and do not include freight, insurance, inspection or packaging charges, warehousing or storage costs, or any sales, use, excise, customs duties, or other taxes or fees ("Costs"). Unless ELEMENT expressly agrees in writing to pay such Costs, all such Costs are to be paid by Customer and any Costs paid by ELEMENT shall promptly be reimbursed by Customer. A minimum charge of $35.00 applies to each sample submitted unless a blanket purchase order specifying different pricing has been submitted and accepted. Written and oral quotations are subject to withdrawal by ELEMENT by notice at any time, and, in any event, shall be valid only for thirty (30) days from the date thereof. Payment is due in cash as specified in ELEMENT's quotation, proposal or order confirmation and, unless otherwise expressly agreed to in writing by ELEMENT, payment is due in U.S. dollars only. If not specified therein, payment is due in cash upon completion of the Work; provided, however, that if the Contract involves a series of tests or other events of partial performance, ELEMENT may invoice, and Customer shall pay for, each such test or part on a pro rata basis. If performance Is delayed by Customer or other causes beyond ELEMENT's reasonable control, ELEMENT may submit invoices, and payment shall bewme due, as if the Work had been completed as scheduled. If such delay is caused by Customer, Customer shall additionally pay all reasonable warehousing and other expenses and Costs of ELEMENT incident to such delay in shipment. The net amount for services performed pursuant to these Tertns and Conditions shall be due in full, without discount, within thirty (30) days of invoice, unless atherwise stated. If payment in full is not made when due, interest shall accrue on the unpaid balance at the lesser of (i) the rate of 1'/:% per month (1 B% per annum) or (ii) the maximum rate permitted under applicable law. Customer agrees to pay reasonable attorneys' fees incurred by ELEMENT in the collection of past due invoices and account balances. If ELEMENT at any time deterrnines in its sole judgment that there are reasonable grounds for insecurity with respect to Customer's payment tor the Work or any other obligation of Customer set forth in the Contract or in these Terms and Conditions, ELEMENT may require adequate assurance of due payment or other pertormance, such as payment in cash or satlsfactory security, and until ELEMENT receives such assurance, ELEMENT may suspend any performance for which it has not already received payment. 4. Completion of Work; Limited Warranty. ELEMENT warrants that it will complete the Work in a satisfactory and workmanlike manner consistent with industry standards. ELEMENT will exercise commercially reasonable efforts to complete the Work and provide a report thereon by any date reasonably requested in writing by Customer, but shall not be liable for any delay in the performance of projects or in the delivery or shipment of goods, or for any damages suffered by the client by reason of such delay. ELEMENT's performance of any and all Work is subJect to ELEMENT's current faciliry schedules, govemmental priorities, and other govemment regulations, purchase orders, directions, and restrictions that may be in effect from time to time. EXCEPT AS EXPLICITLY SET FORTH IN THIS PARAGRAPH 4, ELEMENT MAKES NO OTHER WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. ELEMENT's warranty shall not apply to any portion of the Work performed by a party other than ELEMENT except to the extent that any such third party has warranted such perFormance to ELEMENT and is liable to ELEMENT under such warranty. No employee, agent or other person is authorized to give any warzanties on behalf of ELEMENT in addition to or different from those herein given, or to assume for ELEMENT any other (iability in connection with the Work except in a writing which is signed by an authorized o�cer of ELEMENT, which expressly gives such warrenties or assumes such liability, and which is made part of the Contract pursuant to paragraphs 1 and 2 above. 5. Customer's Property. Whenever ELEMENT is provided in writing detailed instructions as to the treatment and handling of Customer's property, ELEMENT will exe�cise commercially reasonable efforts to comply with such instructions. Type of material, tolerances and specifications for processing shall be deGared in writing by Customer prior to ELEMENT's commencing any Work or shall be deemed not to have been known by ELEMENT. Testing services supplied by ELEMENT are generally considered to be destructive. Under special condiGons, some testing may be perfortned without destroying samples. However, by submitting , components or samples to ELEMENT, Customer expressly agrees that all material submitted may be destroyed . ELEMENT will not be responsible for any costs or losses resulting from destruction of Customer's property submitted to ELEMENT unless both the written Contract and Customer's property are clearly marked "Do Notbestroy." If the Contract and Customer's property are not so marked, ELEMENT shall have no liability for damage to Customer's property. If the Contract and Customer's property are so marked, ELEMENT's liablllty for damage to Customers property is limited to the lesser of (i) the value of Customer's property or (ii) the cost of the Work performed on the damaged property pursuant to the Contract. Under no conditions will ELEMENT be responsible for any additional costs or damages, including consequential damages and indirect costs or losses, resulting from destruction of Customer's propeRy. By submitting property to ELEMENT, Customer acknowledges and agrees to these limitations and acknowledges and agrees that ELEMENT bases its Prlce for the pertorrnance of Wo�lc on ihe existence and enforceability of such limitations. �` elemenf' 6. Shipping. ELEMENT will at Customer's reasonable request act as a shipping agent for the retum of Customer's property after performing the Work. As Customer's agent, ELEMENT will conVact for wmmon carrier delivery as requested in writing by Customer. Under no conditions will ELEMENT have any liability for any item so shipped. Insurance will be purchased for , common carrier shipping only when requested in writing by Customer and when declared value Is indicated, and the failure of ' ELEMENT to purchase insurance shall not result in any liability on the part of ELEMENT. Customer may be billed directly by commercial carriers for freight and Customer shall make all claims for property damaged in transit directly and solely against such freight carriers. 7. Title; Security Agreement Title to Customer's property and ali risk of loss or damage to such property shall remain with Customer ' at all times. Customer'hereby grants to ELEMENT a security interest in all of Customer's propeAy provided to ELEMENT for testing or other services under the Contract to secure the payment of the purchase price for the Work and other fees or charges due ELEMENT hereunder. Customer will not be entitled to the return of its property, and after such retum shall not be entitled to transfer or encumber the property upon which Work is performed, until all sums due and owing to ELEMENT have been paid. Customer shall execute and deliver any financing statements or other documents that ELEMENT reasonably requests for the perfection of ELEMENT's security interest in Customer's property and Customer shall do all other acts necessary for the perfecfion and preservation of this security interest. 8. Customer's Remedies. The sole and exclusive remedy of Customer and its customers, agents and other affiliates in respect of any claim against ELEMENT based on or relating to any Gaimed defect in the Work or othenvise relating to the Work, the Contract, or these Terms and Conditions, whether such claim is based upon contract, tort, professional errors or omissions, strict liability or negligence, and whether such claim is for property damage, personal injury, commercial loss or other monetary loss, shall be (i) upon the return, restoration, or replacement by Customer of Customer's property upon which the Work was performed, the reperformance of any defective portion of the Work, or (ii) at ELEMENT's option, a refund or credit to Customer in the amount of the price paid for the defective portion of the Work Customer's remedies hereunder shall only be available';if (i) ELEMENT has been paid irt full for the Work pursuant to paragraph 3 above; (ii) ELEMENT is notified in detail, in writing, of the claimed defect or other claim within twenty days of Customer's discovery thereof and within ninety days after the completion of the Work; and (iii) ELEMENT is permitted to inspect any and all property with respect to which the Work is claimed to have been defective or to which Customers claim otherwise relates. 9. Cancella6ons. A purchase order or other Contract for Work once placed with and accepted by ELEMENT can be cancelled, in whole or in part, only with the written consent of ELEMENT. If Customer cancels without ELEMENT's consent, Customer shall be liable for the full price of the Work, less any actual third party expenses saved by ELEMENT in not having to perform the Work, as reasonably detertnined by ELEMENT in its sole discretion. 10. Court and Other Proceedings. The nature of ELEMENT's services will, from time to time, require employees of ELEMENT to present the results of ELEMENT's findings in depositions, court proceedings or other forums. In such cases, the Customer will be charged, in addition to the agreed upon price for the Work, ELEMENT's usual and customary costs and fees for such presentations and the preparation thereof according to ELEMENT's then current fee schedule. If ELEMENT is subpoenaed by a party other than Customer, the total costs and fees associated with the preparation and testimony will be charged to the Customer, irrespective of whether payment has previously been made on the Work and Customers file is closed. ELEMENT will at Customer's written request attempt to have these costs and fees reimbursed by the party issuing the subpoena; however, if such party does not reimburse ELEMENT, such costs and fees will be the responsibility of Customer. Customer agrees to pay any such costs and fees, irrespecdve of whether it is anticipated at the time of the Contract that ELEMENT will be called upon to present the results of its findings in depositions, court proceedings or other forums. 11. Force Majeure. The parties hereto shall be excused from the duty to render timely performance of any obligation hereunder if such inability to perform is caused directly or indirectly by act of God, flood, war, riot, accident, explosion, strikes or labor trouble, act of government, delay or default by subcontractor or supplier of materials or services, the existence of any circumstance making performance commercially impracticable or any other cause beyond the party's reasonable control; provided, however, that the obligation to make payments due under this agreement shall not be excused for any reason, including the foregoing. 12. Limitation on Liability. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8, ELEMENT SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM ITS PERFORMANCE OF THE WORK, WCLUDING WITHOUT LIMITATION ANY DAMAGE TO CUSTOMER'S PROPERTY. ELEMENT SHALL IN NO EVENT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM THE USE OF PROPERTY UPON WHICH THE WORK IS PERFORMED OR ANY SIMILAR PROPERTY OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER. IN NO EVENT SHALL ELEMENT BE LIABLE FOR ANY DAMAGES ABOVE THE COST �F THE WORK, WHETHER SUCH DAMAGES SHALL ARISE FROM BREACH OF THIS CONTRACT, OR IN TORT, OR OTHERWISE. 13. Waiver of Compliance. Waiver by either party hereto of a breach by the other party of any of the provisions of these terms and conditions shall not be deemed a waiver of future compliance therewith, and such provisions shall remain in full force and effect. 14. Severability. If any provision or remedy herein provided for be invalid under any applicable law, the remaining provisions hereof, including remaining default remedies, shall be given effect in accordance with the intent hereoE 15. Goveming Law. This agreement shall be govemed by and construed under the laws of the State of North Carolina and the United States of America. 16. Arbitration. Any controversy or claim arising out of or relating to this agreement, or any breach thereof, shall be settled by arbitraUon in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbit�ator(s) may be entered in any court having jurisdiction thereof. The situs of said arbitrallon shall be Cha�lotte, NoAh Carolina. Any demand for arbitration by either party hereunder m ust be delivered in writing to the other party. 17. Export Control Laws and Regulations. All paRies shall oomply with all export control laws and regulations (including, but not limited to, the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations) to the exlent applicable to the Parties' respective activities under this Agreement. The Receiving Party shall control access to any technical data disclosed under this Agreement in accordance with all U.S. export laws and regulations including, without limitation, confining the disclosure of any such technical data to U.S. persons unless disclosure to foreign persons is specifically authori2ed and appropriately licensed by the proper U.S. government agency. The Receiving Party shall limit dissemination of technical data to its employees who have a need to know as it relates to the Purpose of this Agreement and who have agreed to abide by the Export Control provisions contained herein, and who are U.S. citizens or permanent resident Aliens (or who are othervvise authorized to receive such Information pursuant to this Agreement and U.S. Export Laws). The Receiving Party shall exercise the same care to protect any and all technical data embodying or setting forth all or part of the technical data as it uses to protect its own technical data, but in no case less than reasonable care to assure proper control and security of such information and documentatio�.