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HomeMy Public PortalAbout150-2017 - TRC Environmental - Evaluating Status of site Remediation - 16 W Main StPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this �-W day of 2017, and referred to as Contract No. 150-2017, by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and TRC Environmental Corporation, 10475 Crosspoint Boulevard, Suite 250, Indianapolis, Indiana, 46256 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to provide professional and technical support services in connection with the Site Evaluation of the former Manufactured Gas Plant (MGP) Site located at 16 West Main Street in the City of Richmond, Indiana (hereinafter "Project"). The proposal of Contractor, dated October 6, 2017, is attached hereto as Exhibit "A", which Exhibit consists of seventeen (17) pages, and is hereby incorporated by reference and made a part of this Agreement. Contractor shall perform all work and provide all services described on Exhibit "A." Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. Contractor shall perform all work herein in a timely manner, conforming to all applicable professional standards. The Contractor shall furnish all labor, material, equipment, and services necessary for the proper completion of all work specified. No performance of services shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance; 2. The City is in receipt of any required affidavit signed by Contractor in accordance with Indiana Code 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. SECTION II. STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. Contract No. 150-2017 Page 1 of 6 SECTION III. COMPENSATION The Contractor shall be paid a total amount not to exceed Twenty-four Thousand Nine Hundred Thirty Dollars and Zero Cents ($24,930.00), for complete and satisfactory performance of the work required hereunder. SECTION IV. TERM OF AGREEMENT This Agreement shall be effective when signed by all parties and shall continue in effect until completion of the Project, which completion is anticipated to be on or before January 31, 2018. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the following: a. failure, for any reason of the Contractor to fulfill in a timely manner its obligations under this Agreement; b. submission of a report, other work product, or advice, whether oral or written, by the Contractor to the City that is incorrect, incomplete, or does not meet reasonable professional standards in any material respect; c. ineffective or improper use of funds provided under this Agreement; d. suspension or termination of the grant funding to the City under which this Agreement is made; or e. unavailability of sufficient funds to make payment on this Agreement. In the event of such termination, the City shall be required to make payment for all work performed prior to the date this Agreement is terminated, but shall be relieved of any other responsibility herein. This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the Contractor's conduct or performance of this Agreement, either intentionally or negligently; provided, ' however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this Page 2 of 6 Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible. Coverage Limits A. Worker's Compensation & Statutory Disability Requirements B. Employer's Liability $100,000 C. Comprehensive General Liability Section 1. Bodily Injury $1,000,000 each occurrence $2,000,000 aggregate Section 2. Property Damage $1,000,000 each occurrence D. Comprehensive Auto Liability Section 1. Bodily Injury $1,000,000 each person $1,000,000 each occurrence Section 2. Property Damage $1,000,000 each occurrence E. Comprehensive Umbrella Liability $1,000,000 each occurrence $2,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence $2,000,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. Page 3 of 6 SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages. SECTION VIII. IRAN INVESTMENT ACTIVITIES Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment activities in Iran. In the event City determines during the course of this Agreement that this certification is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor ninety (90) days within which to respond to the written notice. In the event Contractor fails to demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety (90) days after the written notice is given to the Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this certification is no longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5- 22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement and terminate the agreement upon the expiration of the ninety (90) day period set forth above. SECTION IX. PROHIBITION AGAINST DISCRIMINATION A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: 1. That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any Page 4 of 6 person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any sub -contractor shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; 3. That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. SECTION X. RELEASE OF LIABILITY Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents of the same from all liability which may arise in the course of Contractor's performance of its obligations pursuant to this Agreement. SECTION XI. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion, negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Page 5 of 6 Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other action in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other tribunals or in other venues. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees. In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Public Works and Safety By: Vicki Robinson, President By: — Richard Foore, Member LIN Anthony L/ otter, II, Member APPROVED: Sno Ma r Date: ((— 63-- I 7 "CONTRACTOR" TRC ENVIRONMENTAL CORP. 10475 Crosspoint Boulevard, Suite 250 Indianapolis, IN 46256 By: J Printed: 6roo)LS P. ,4-L Title: �r w C: f,.-k (,S 14-.J Date: I' I �- / 17 Page 6 of 6 10475 Crosspoint Blvd. Suite 250 Indianapolis, IN 46256 wWW krc Q'Utic"n5.cart October 6, 2017 Mr. Jack Cruse Director — Infrastructure and Development City of Richmond, Indiana 50 North Fifth Street Richmond, Indiana 47374 Reference: Former MGP Site Evaluation 16 East Main Street Richmond, Indiana TRC Proposal No. 288529.9990 Dear Mr. Cruse: TRC Environmental Corporation (TRC) is pleased to submit this proposal to provide technical support to the City of Richmond, Indiana (the 'City) for evaluating the current status of site remediation activities at the former Manufactured Gas Plant (MGP) Site located at 16 West Main Street in Richmond, Indiana. This proposal has been developed in response to our conversation on September 28, 2017. TRC is pleased to offer this assistance to the City. Please contact me at 317-517=2616 or bbertl@tresolutions.com with any questions or to discuss this project further after you have had an opportunity to review our proposal. To accept this proposal, please issue a Purchase Order for the selected services outlined in the attached proposal and referencing the currently negotiated Terms and Conditions between TRC and the City. Sincerely, TRC Environmental Corporation Brooks R. Bertl, P.E., P.G. Principal Consultant Attachments: Proposal, Demolition Oversite Services, Terms and Conditions 288529 9990PRP.docx/sap IPAJ°t The City of Richmond, Indiana Attachment 1 Proposal I EX iBIT �PAGE (l OF \'1 The City of Richmond, Indiana Proposal for Former MGP Site Evaluation Services BACKGROUND It is TRC's understanding that the City of Richmond is currently implementing a Remedial Action Work Plan (RAWP) including source removal, ground water remediation and soil capping activities at the former manufactured gas plant (MGP) site located in Richmond, Indiana (the Site). Source removal and capping activities were completed in early 2013 and the former MGP site has been converted to green space and an access drive to the Veterans Memorial Park in the Whitewater Valley Gorge. The details of the source removal action and capping activities are included in the Indiana Department of Environmental Management (IDEM)-approved RAWP dated November 2011. The Site is currently enrolled in the Indiana Brownfields Program and is assigned Number 4980004. In addition to source removal and capping activities, the RAWP includes considerations to address chemicals of concern (COC) identified to the west of the former MGP property in ground water in an attempt to prevent COC impacts to the adjacent Whitewater River. Previous investigation and characterization of the nature and extent of MGP-related residuals and evaluation of potential exposure to COC has been conducted in accordance with the IDEM Risk Integrated System of Closure (RISC) Technical Guide and User Guide (IDEM, 2001) and was submitted to the Indiana Finance Authority (IFA). The IFA reviewed this information and agreed to fund the MGP remedial program including the previously completed source removal and capping activities as well as the uncompleted ground water remediation activities. The IFA has recently contacted the City to determine the status of the ground water remediation activities in light of potential expiration of available funding in 2018. As a result, The City has requested that TRC evaluate the current status of the ground water program and prepare a response to IFA. TRC has developed the following proposed scope of services to respond to the IFA, including cost and schedule considerations for implementation of this scope on behalf of the City. SCOPE OF SERVICES Phase I: Locate and Review Existing Site Information Task 1: Site Visit Initially, the TRC Project Manager and the Field Engineer will mobilize to Richmond to meet with City officials to collect, copy (if necessary) and review existing MGP Site documentation. In particular, TRC will be searching for documentation related to ground water conditions since 2013 including any new monitoring well installation documentation and current ground water monitoring well network configuration. TRC will also identify ground water quality data collected since 2013. Any pre-2013 documentation made available by the City during this visit will also be reviewed for ground water remediation applicability. 288529 9990PRP.docx/sap Page 1 The City of Richmond, Indiana After meeting with City officials, the TRC representatives will inspect the former MGP Site with particular emphasis on the floodplain west of the former MGP property. The existence and current condition of previously known ground water monitoring wells and of any new monitoring wells identified while meeting with the City will be evaluated in anticipation of a future ground water sampling and analysis program. Task 2: Additional Document Search In order to supplement the information and documentation collected during the Site visit, TRC will also search for additional documentation online in the IDEM Virtual File Cabinet (VFC) and contact the IFA to request any additional information that has not been previously identified or reviewed. Phase II: Ground Water Sampling and Analysis Once all available documentation has been identified and reviewed, TRC will develop a ground water sampling and analysis program to identify current ground water flow and quality conditions for remedial consideration. It is our understanding that there are six (6) existing ground water monitoring wells at the Site. A representative ground water sample will be collected from each of these monitoring wells using low -flow sampling techniques, in accordance with USEPA-approved methodologies. Ground water will be purged at a reduced rate until ground water stabilization for four (4) indicator parameters (temperature, pH, specific conductance, and turbidity) is achieved. Additional ground water quality parameters (dissolved oxygen, oxidation-reduction potential, etc.) will be measured but not used for determining stabilization. Each ground water sample will be submitted to TestAmerica Laboratories in North Canton, Ohio for a standard, two week turn -around time analysis for COC previously identified at the Site including: benzene, toluene, ethyl benzene and xylene (BTEX); poly -nuclear aromatic hydrocarbons (PAHs); and, total cyanide. In conjunction with this sampling event, TRC will perform one round of static water elevation measurements from the existing monitoring well network in order to develop a potentiometric map of subsurface ground water elevation and estimate ground water flow direction. Phase III: Update Ground Water Remedial Approach Task 1: Data Evaluation Upon receipt of the laboratory report, TRC will review the analytical results for comparison with historical Site data identified in Phase 1 in order to determine if Site conditions have evolved over time. In particular, this comparison will be coupled with current and historical dissolved oxygen field measurements to determine if natural bio-attenuation is occurring at the Site. If so, natural bio-attenuation may be considered for future remedial consideration. 288529 9990PRP.docx/sap Page 2 PAGE L� OF -4 The City of Richmond, Indiana In addition, the laboratory analytical results will be compared with current RISC guidance (2017) to establish the most up to date Site specific remedial goals. These up to date remedial goals may also impact Site specific remedial options. Task 2: RAWP Evaluation Once an understanding of previous site conditions and the data from the current ground water sampling program has been evaluated, TRC will compare this information to the IFA approved RAWP. TRC will make recommendations pertaining to the adequacy of the RAWP ground water remedial program based upon this comparison. If more efficient and cost effective remedial alternatives are determined to be available based upon this data comparison and/or development of new remedial technologies, TRC will identify these alternatives for consideration by the City and the IFA. Task 3: IFA Coordination If requested to do so by the City, TRC will present the results of this updated Site evaluation to the IFA for financial consideration prior to expiration of funding in 2018. This presentation will include submittal of the Technical Memorandum described below as well as participation in one (1) conference call with representatives of the City and the IFA. As part of this task, TRC will develop ball park cost estimates of ground water remedial alternatives for comparison with remaining IFA funding based upon our evaluation. TRC can provide minor adjustments and/or a limited addendum to the approved RAWP, but significant revision or redevelopment of the RAWP is not included in this scope of work. If significant RAWP revisions are necessary, TRC will determine the level of effort to address IFA requirements and present a fee to the City for this effort. Once a course of remedial action regarding ground water is agreed upon with the IFA and the City, this project will be considered complete. TRC will provide a subsequent proposal at that time to implement the agreed upon ground water remediation program. DELIVERABLES At the completion of the evaluation activities outlined above, TRC will prepare a draft Technical Memorandum for submittal to the City. This draft Technical Memorandum will include: - a summary of post RAWP documentation identified during the Site visit and additional document search, - a brief description of the ground water sampling event, including sampling procedures, laboratory analytical results, ground water flow information and data evaluation; - a comparison of new data to the IFA approved RAWP for applicability; - recommendations for updated ground water remediation alternatives; and, - ballpark costs for these remedial alternatives for comparison to remaining IFA funding. 288529 9990PRP.docx/sap 1E 'r -PAGE S O € ft=�i Page 3 The City.of Richmond, Indiana FEE PROPOSAL TRC proposes to perform Phase I, II and III tasks as described above on a time and materials basis in keeping with the rates included in the 2017 TRC Environmental Standard Rate Schedule included as Attachment 2. We are prepared to begin work on this scope of work once we receive a Purchase Order from the City referencing the Terms and Conditions included in Attachment 3. PROPOSAL FOR FORMER MGP SITE EVALUATION SERVICES ESTIMATED COST Phase I — Locate and Review Existing Site Information Task 1 — Site Visit $2,900 Task 2 — Document Review and Additional Document Search $4,900 Phase I Total $7,800 Phase II — Ground Water Sampling and Analysis Task 1 — Field Program $6,100 Task 2 — Laboratory Analysis 6 Samples @ $305/Sample $1,830 Phase II Total $7,930 Phase III — Update Ground Water Remedial Approach Task 1 — Data Evaluation $2,800 Task 2 — RAWP Evaluation $2,300 Task 3 — IFA Coordination $900 Task 4 — Prepare Tech Memo $3,200 Phase III Total $9,200 Project Total $24,930 ASSUMPTIONS • The cost for the initial Site Visit assumes that the visit will be completed by the Project Manager and Field Engineer in one, 8-hour work day. • The cost for the Groundwater Sampling and Analysis Program assumes that the field program will be completed by the Field Engineer in one, 8-hour work day. • The cost for the Groundwater Sampling and Analysis Program assumes that no waste is generated or disposed as part of this field sampling program. If wastes are generated, additional costs for storage and disposal may be incurred. • The cost for Laboratory Analysis assume the collection and analyses of six (6) ground water samples for BTEX, PAHs and total cyanide. Additional sample analyses for these COC will be provided at a cost of $305 per sample. • The cost for IFA Coordination includes participation in one conference call with IFA and the City. Participation in additional calls and/or face-to-face meetings will result in additional costs. • The cost to Prepare Tech Memo assumes preparation of a single draft document including the elements listed in the Deliverables Section above. This cost does not include significant 288529 9990PRP.docx/sap Page 4 1i:X"-iIl:',El_..{ The City of Richmond, Indiana RAWP revisions or redevelopment. Costs for these services will be provide if required by IFA. The 2017 TRC Environmental Standard Rate Schedule is included in Attachment 1 for consideration of future services not specified above. TERMS OF CONTRACT TRC proposes to perform the Phase I, Phase II and Phase III services under the Terms and Conditions included in Attachment 2. To accept this proposal, please issue a Purchase Order referencing the attached Terms and Conditions and specifying the selected services outlined above. SCHEDULE TRC can begin work on the project immediately upon receipt of a written Purchase Order from the City. The site visit for Phases I will be scheduled with the City within one (1) week of receipt of a Purchase Order. The field sampling and analysis program will be completed within four (4) weeks of the initial site visit and a Technical Memorandum can be issued within 3 weeks of receipt of laboratory analytical results. The schedule for IFA coordination will be based upon IFA availability. Assuming TRC receives a Purchase Order on or about October 20, 2017, the draft Technical memorandum should be issued to the City by December 15, 2017. The timing of any subsequent activities will be based upon the selected ground water remedial program. HEALTH AND SAFETY CONSIDERATIONS Safety is our Number One Priority, and TRC will develop a Health and Safety Plan ("HASP") for the Site Visit and Groundwater Sampling Activities at the former MGP Site. TRC subscribes to Occupational Safety and Health Administration (OSHA) — and United States Environmental Protection Agency (USEPA) — mandated health and safety standards. Because of the wide range of potential exposures for our employees, TRC must make conservative judgments as to potential health risks. The services outlined in this proposal are offered on the basis of providing Level D health and safety protection (coveralls, safety shoes, hard hats, and eye protection only). If additional protection is required for TRC employees to perform these services, then TRC will advise the City of the needed protection and any associated increase in compensation before proceeding with the work. 288529 9990PRP.docx/sap Page 5 t � � IT J PAGE 7 OFF The City of Richmond, Indiana Attachment 2 2017 TRC Environmental Standard Rate Schedule xRIr PA —% --- aF� The City of Richmond, Indiana Attachment 3 TRC Corporation Standard Terms and Conditions TRC ENVIRONMENTAL CORPORATION TERMS AND CONDITIONS 1.0 SERVICES TRC Environmental Corporation ("Consultant") will provide consulting and other professional services on behalf of Client as provided in the Scope of Work. Client is defined in the attached Proposal or Scope of Work. Unless otherwise stated, Consultant's Proposal to perform the Scope of Work expires sixty (60) days from its date and may be modified or withdrawn by Consultant prior to receipt of Client's acceptance. The offer and acceptance of any services or goods covered by the Proposal is conditioned upon these terms and conditions. Any additional or different terms and conditions proposed by Client are objected to and will not be binding upon Consultant unless specifically agreed to in writing by Consultant. An order or statement of intent to purchase Consultant's services, or any direction to proceed with, or acquiescence in the commencement of work shall constitute consent to these terms and conditions. 2.0 COMPENSATION 2.1 Consultant will invoice for its services on a time and materials basis using the Schedule of Rates embodied in the referenced Proposal. Prices or rates quoted do not include state or local taxes where applicable. Our services may include reimbursable expenses, which are charges incurred for travel, transportation, temporary lodging, meals, telephone calls, fax, postage, courier service, photographic, photocopying and other fees and costs reasonably incurred in connection with the services. 2.2 Unless otherwise stated in the Proposal, Consultant will submit invoices for services related to the Scope of Work on at least a monthly basis, and Client will make payment within thirty (30) days of receipt of Consultant's invoices. If Client objects to any portion of an invoice, the Client will notify Consultant within fifteen (15) days from the date of receipt of the invoice and will pay that portion of the invoice not in dispute, and the parties shall immediately make every effort to settle the disputed portion of the invoice. 2.3 If Client fails to make any payment due to Consultant within thirty (30) days after receipt of an invoice, then the amount due Consultant will increase at the rate of 1.5 percent per month after the 30th day. If a retainer has been required and the Client has not paid the invoice within thirty (30) days, TRC shall be entitled to draw upon the retainer to satisfy the past due invoice. In addition, Consultant may, after giving seven (7) days' written notice to Client, suspend its services and any deliverables until Consultant has been paid in full for all amounts outstanding more than thirty (30) days. In the event that Consultant must resort to legal action to enforce collection of payments due, Client agrees to pay attorney fees and any other costs resulting from such action. 7-8-10 version 1.0 3.0 CLIENT'S RESPONSIBILITIES 3.1 Client will designate in writing the person or persons with authority to act in Client's behalf on all matters concerning the work to be performed by Consultant for Client. 3.2 Client will furnish to Consultant all existing studies, reports, data and other information available to Client which may be necessary for performance of the work, authorize Consultant to obtain additional data as required, and furnish the services of others, where necessary, for the performance of the work. Consultant will be entitled to use and rely upon all such information and services. 3.3 Unless otherwise stated in the Proposal, Client shall be responsible to provide Consultant access to the work site or property to perform the work. 4.0 PERFORMANCE OF SERVICE 4.1 Consultant's services will be performed in conformance with the Scope of Work set forth in the Proposal. 4.2 Additional services will be performed and completed in conformance with any supplemental proposals or Scopes of Work approved in writing by the Client. 4.3 Consultant's services for the Scope of Work will be considered complete at the earlier of (i) the date when Consultant's report is accepted by the Client or (ii) thirty (30) days after the date when Consultant's report is submitted for final acceptance, if Consultant is not notified in writing within such 30-day period of a material defect in such report. 4.4 If any time period within or date by which any of Consultant's services are to be performed is exceeded for reasons outside of Consultant's reasonable control, all rates, measures and amounts of compensation and the time for completion of performance shall be subject to equitable adjustment. 5.0 CONFIDENTIALITY Consultant will hold confidential all information obtained from Client, not otherwise previously known to us, unless such information comes into the public domain through no fault of ours, is furnished to us by a third party who is under no obligation to keep such information confidential, or is independently developed by us. 6.0 WARRANTY 6.1 In performing services, Consultant agrees to exercise professional judgment, made on the basis of the information available to Consultant, and to use the same standard of care and skill ordinarily exercised in similar circumstances by consultants performing comparable services in the region. This standard of care shall be judged as of the time and place the services are rendered, and not according to later standards. The expiration date of this warranty is one (1) year from the date of completion of the service. Reasonable people may disagree on matters involving professional 7-8-10 version 1.0 1LX!iBT PAGE judgment and, accordingly, a difference of opinion on a question of professional judgment shall not excuse CLIENT from paying for services rendered or result in liability to Consultant. 6.2 If any failure to meet the foregoing warranty appears during one year from the date of completion of the service and Consultant is promptly notified thereof in writing, Consultant will at its option and expense re -perform the nonconforming work or refund the amount of compensation paid to Consultant for such nonconforming work. In no event shall Consultant be required to bear the cost of gaining access in order to perform its warranty obligations. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY. CONSULTANT DOES NOT WARRANT ANY PRODUCTS OR SERVICES OF OTHERS DESIGNATED BY CLIENT. 7.0 INSURANCE Consultant will procure and maintain insurance as required by law. At a minimum, Consultant will have the following coverage: (a) Worker's compensation and occupational disease insurance in statutory amounts. (b) Employer's liability insurance in the amount of $1,000,000. (c) Automotive liability in the amount of $1,000,000. (d) Comprehensive General Liability insurance for bodily injury, death or loss of or damage to property of third persons in the amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. (e) Professional errors and omissions insurance in the amount of $1,000,000. 8.0 INDEMNITY 8.1 Each Party will indemnify the other Party, its employees, representatives, contractors, consultants and agents from and against any claims, costs, liabilities or expenses, including reasonable attorney's fees, to the extent caused by the negligent, reckless or willful acts of the indemnifying Party in connection with the services hereunder. 8.2 Notwithstanding the foregoing, in the event that Consultant performs intrusive ground work as part of the Scope of Work, Client shall indemnify Consultant from and against any and all claims, costs, liabilities or expenses, including reasonable attorneys fees, resulting from, or arising out of, damages to subsurface or underground utilities or structures, including but not limited to, gas, telephone, electric, water or sewer utilities whose locations were not designated or identified to Consultant prior to the commencement of any subsurface investigation or cleanup, including but not limited to, excavation, drilling, boring, or probing required to be conducted by Consultant as part of site investigation, characterization or remediation work. 7-8-10 version 1.0 8.3 To the extent the Scope of Work or any Request for Services under this Agreement requires Consultant to communicate (e.g., perform interviews) with any third party including, but not limited to, owners of off -site locations, former employees, current employees or governmental authorities, Consultant shall so inform Client. Client will indemnify Consultant from and claims, costs, liabilities or expenses, including reasonable attorney's fees to the extent arising from claims of breach of confidentiality, waiver of privilege or otherwise associated with any such communications. 9.0 ALLOCATION OF RESPONSIBILITY 9.1 Consultant shall be liable to Client only for direct damages to the extent caused by Consultant's negligence or willful misconduct in the performance of its services. UNDER NO CIRCUMSTANCES SHALL CONSULTANT BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR DAMAGES CAUSED BY CLIENT'S FAILURE TO PERFORM ITS OBLIGATIONS. To the fullest extent permitted by law, the total liability in the aggregate of Consultant and its employees, subcontractors or suppliers to Client and anyone claiming by, through or under Client on all claims of any kind (excluding claims for death or bodily injury) arising out of or in any way related to Consultant's services, or from any cause or causes whatsoever, including but not limited to negligence, errors, omissions, strict liability, indemnity or breach of contract, shall not exceed the total compensation received by Consultant under this agreement, or the total amount of $50,000, whichever is greater. All such liability shall terminate on the expiration date of the warranty period specified in Section 6. 9.2 If Consultant furnishes Client with advice or assistance concerning any products, systems or services which is not required under the Scope of Work or any other contract among the parties, the furnishing of such advice or assistance will not subject Consultant to any liability whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. 10.0 DISPOSAL OF CONTAMINATED MATERIAL 10.1 Client understands and agrees that Consultant is not, and has no responsibility as, a generator, operator, owner, treater, arranger or storer of pre-existing substances or wastes found or identified at work sites, including drilling and cutting fluids and other samples. Consultant shall not directly or indirectly assume title to such substances or wastes and shall not be liable to third parties alleging that Consultant has or had title to such materials. Client will indemnify and hold harmless Consultant from and against all losses, damages, costs and expenses, including but not limited to attorneys' fees, arising or resulting from actions brought by third parties alleging or identifying Consultant as a generator, operator, arranger, storer, treater or owner of pre-existing substances or wastes found or identified at work sites. 10.2 Ownership of all samples obtained by Consultant from the project site is maintained by Client. Consultant will store such samples in a professional manner for the period of time necessary to complete the project. Upon completion of the project, Consultant will return any unused samples or portions thereof to Client or, at Consultant's option using a manifest signed by Client as generator, dispose of the samples in a lawful manner and bill Client for all costs related thereto. Consultant will normally store samples for thirty (30) days. 4 7-8-10 version 1.0 PAGE OF 1-7 11.0 OWNERSHIP OF DOCUMENTS 11.1 All notes, memoranda, drawings, designs, specifications and reports prepared by Consultant shall become Client's upon completion of the payment to Consultant as provided herein. 11.2 All documents including drawings and specifications prepared by Consultant pursuant to the Scope of Work are instruments of service with respect to this project. Such documents are not intended or represented to be suitable for reuse by Client or by any other party on subsequent extensions or phases of this project or site or on any other project or site without the written consent of both Client and Consultant. 11.3 Any reuse without written approval or adaptation by Consultant for the specific purpose intended will be at the Client's sole risk and without liability or legal exposure to Consultant. Any such reuse requested by Client will entitle Consultant to further compensation at rates to be agreed upon by Client and Consultant. A request by Client to provide a letter of reliance to a third parry will entitle Consultant to assess a small charge in connection with documenting its consent. 11.4 Consultant will retain the technical project file for a period of six (6) years from project completion (if Client is a governmental entity, files shall be maintained for a 10-year period following project completion). Client shall notify Consultant at the completion of work if Client requires the file in this matter to be transferred to Client or another entity, or retained by Consultant for a longer period of time. In the absence of any written instructions to the contrary from Client, Consultant will have the right to discard any and all files, records or documents of any type related to the Scope of Work after the 6-year period. During this 6-year period, any requests for document recovery and reproduction will be assessed a fee in accordance with Consultant's Schedule of Fees. 12.0 INDEPENDENT CONTRACTOR Consultant is an independent contractor and shall not be regarded as an employee or agent of the Client. 13.0 COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS The Consultant shall observe all applicable provisions of the federal, state and local laws and regulations, including those relating to equal opportunity employment. 14.0 SAFETY 14.1 Client shall be obligated to inform Consultant and its employees of any applicable site safety procedures and regulations known to Client as well as any special safety concerns or dangerous conditions at the site. Consultant and its employees will be obligated to adhere to such procedures and regulations once notice has been given. 14.2 Unless specifically provided in the Scope of Work, Consultant shall not have any responsibility for overall job safety at the site. If in Consultant's opinion, its field personnel are unable to access required locations or perform required services in conformance with applicable safety 7-8-10 version 1.0 standards, Consultant may immediately suspend performance until such safety standards can be attained. If within a reasonable time site operations or conditions are not brought into compliance with such safety standards, Consultant may in its discretion terminate its performance in accordance with Section 17.0, in which event Client shall pay for services and termination expenses as provided herein. 15.0 LITIGATION At the request of Client, Consultant agrees to provide testimony and other evidence in any litigation, hearings or proceedings to which Client is or becomes a party in connection with the Scope of Work. Client agrees to compensate Consultant at its Litigation Rates in effect at the time the services are rendered for its time and other costs in connection with such evidence or testimony. Similarly, if Consultant is compelled by legal process to provide testimony or produce documents or other evidence in connection with work performed, Consultant agrees to contact Client and cooperate with Client and Client's counsel. Client agrees to compensate Consultant at its Litigation Rates in effect at the time the services are rendered for its time, expense and retention of counsel in connection with such testimony or document and other evidentiary production. 16.0 NOTICE All notices to either party by the other shall be deemed to have been sufficiently given when made in writing and delivered in person, by facsimile, email, certified mail or courier to the address of the respective party or to such other address as such party may designate. 17.0 TERMINATION The performance of work may be terminated or suspended by either party, in whole or in part. Such termination shall be effected by delivery of seven (7) days prior written notice specifying the extent to which performance of work is terminated and the date upon which such action shall become effective. In the event work is terminated or suspended by Client (or by Consultant as provided herein) prior to the completion of services contemplated hereunder, Consultant shall be paid for (i) the services rendered to the date of termination or suspension; (ii) demobilization costs; (Ili) costs incurred with respect to noncancellable commitments; and (iv) reasonable services provided to effectuate a professional and timely project termination or suspension. 18.0 SEVERABILITY If any term, covenant, condition or provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of these Terms and Conditions shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby. Any waiver by either party or any provision or condition of these Terms and Conditions shall not be construed or deemed to be a waiver of a subsequent breach of the same provision or condition, unless such waiver is so expressed in writing and signed by the party to be bound. 7-8-10 version 1.0 ! ` XHICIT PAGE 20.0 GOVERNING LAW These Terms and Conditions will be governed by and construed and interpreted in accordance with the laws of the State of Connecticut. 21.0 CAPTIONS The captions of these Terms and Conditions are intended solely for the convenience of reference and shall not define, limit or affect in any way the provisions, terms and conditions hereof or their interpretation. 22.0 ENTIRE AGREEMENT These Terms and Conditions, and the Scope of Work, represent the entire understanding and agreement between the parties and supersede any and all prior agreements, whether written or oral, and may be amended or modified only by a written amendment signed by both parties. 7 7-8-10 version 1.0